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NJ Defendant – Parent Asserts “Hardship Exception” to Jail Sentence

10
Dec
2010

by in Criminal Defense

State v. V.B., unpublished opinion, App. Div. Docket No. A-1844-09T3 (September 22, 2010) – Conviction affirmed, case remanded for reconsideration of sentence. “By statute, a ninety day sentence is mandatory for her fourth shoplifting conviction, N.J.S.A. 2C:20-11c. However, she contends that in imposing an additional ninety days beyond the statutory minimum, the Law Division judge did not consider the extent to which defendant’s imprisonment would ‘entail excessive hardship’ to her children. See N.J.S.A. 2C:44-1b(11). Defendant has infant twins, for whom she was caring at the time she was sentenced. Clearly, in light of her prior criminal record, some period of incarceration is warranted as well as legally mandated. However, the difference between a three-month separation from a parent and a six-month separation may be significant in the life of an infant. The judge did not directly or clearly address the hardship issue or explain why the additional ninety day sentence was nonetheless justified in light of the hardship claim. See State v. Dalziel, 182 N.J. 494, 504-05 (2005). We therefore remand this issue to the trial court for reconsideration. The issue on remand should be decided before defendant reports to jail, so that she can make appropriate arrangements for the care of her children in light of the length of her sentence.”

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