In a case decided on December 17, 2014, State v. Jaffe, the New Jersey Supreme Court definitively ruled that relevant post-conviction conduct must be considered by the sentencing court in determining whether or not a New Jersey criminal defendant must serve time in jail or prison.

In Jaffe, the defendant, by way of a negotiated agreement, entered a guilty plea to conspiracy to possess cocaine with intent to distribute. As part of his plea, he agreed to cooperate with the prosecution of his co-defendants. In exchange, the prosecutor agreed to recommend a three-year prison term and agreed that the defendant could request probation or a county jail sentence.

Defendant was not sentenced for nearly a year while his co-defendants’ cases were resolved.

At sentencing, Jaffe’s criminal defense attorney argued that he should be granted probation, since, in the year subsequent to the entry of his guilty plea, he had no further contact with the criminal justice system, had worked steadily, and had cared, like a father, for his girlfriend’s 5 year old son. The defendant’s attorney asked the court to consider various mitigating factors relative to his post-conviction conduct at sentencing, in particular that, defendant’s conduct was the result of circumstances unlikely to recur (8); his character demonstrated that he was unlikely to re-offend (9); he was likely to respond affirmatively to probationary treatment (10); imprisonment would result in excessive hardship to him and his dependents (11); and he had cooperated with the prosecution of his co-defendants (12).

The NJ Superior Court judge who heard the matter refused to consider defendant’s post-offense conduct, finding only mitigating factor 12, that defendant had cooperated with the prosecutor. The court then concluded that since the aggravating factors (all of which related to conduct which occurred prior to the defendant’s guilty plea) substantially outweighed that one mitigating factor, the defendant would be sentenced to 3 years in the New Jersey State Prison.

After an appeal, in which the New Jersey Appellate Division affirmed the sentence, the defendant argued the matter before the New Jersey Supreme Court. The Supreme Court reversed, holding that the court below was required to consider a defendant’s relevant post-offense conduct in weighing aggravating and mitigating factors for the purpose of sentencing.

The court noted that New Jersey criminal law did not require a court to ignore a defendant’s individual characteristics and circumstances. The case was remanded for re-sentencing in accordance with the Court’s opinion.

The Supreme Court further held that on re-sentencing, the Superior Court must perform a review of the aggravating and mitigating factors applicable to a defendant at the time of his re-sentencing, including evidence of post-offense conduct, whether rehabilitative or otherwise.

For individuals who are facing prosecution or sentencing in the State criminal courts of New Jersey, or who are appealing their matters before the New Jersey Appellate Division, or the Supreme Court of New Jersey, it is critical to have an experienced New Jersey State criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all State and Municipal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at to schedule an appointment.