State v. Joseph M. Jaffe (072259) , 220 N.J. 114 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Joseph M. Jaffe (A-12-13) (072259)
Argued February 3, 2014 -- Decided December 15, 2014
SOLOMON, J., writing for a unanimous Court.
In this appeal, where the defendant was sentenced almost one year after entering a guilty plea, the Court
considers whether the sentencing court should have considered relevant post-offense conduct in weighing the
applicable aggravating and mitigating factors.
Defendant and two others were charged with various drug offenses. Defendant entered into a negotiated
plea agreement in which he agreed to plead guilty to third-degree conspiracy to possess cocaine with the intent to
distribute, and to cooperate with the State’s prosecution of his co-defendants. In exchange, the State agreed to
recommend a three-year prison term and to allow defendant the right to argue for probation or a custodial sentence
to be served in county jail. Defendant pled guilty on August 16, 2011, but sentencing was delayed until his co-
defendants’ cases were resolved. As a result, defendant was not sentenced until August 3, 2012.
At the sentencing hearing, defense counsel asserted that because nearly a year had passed since defendant’s
conviction, the pre-sentence investigation and report were stale. He argued that leniency was warranted because, in
the time between defendant’s plea and sentencing, defendant had not reoffended, was gainfully employed, and had
been acting as the “de facto” father to his girlfriend’s five-year-old child. Defendant testified that he had been sober
since the date of his arrest, had been attending Narcotics Anonymous with a sponsor, had joined “a mixed issue
support group” with his church, had “recently started working with at-risk teenagers,” and was engaged to be
married. Counsel argued that, based upon defendant’s post-conviction rehabilitative efforts and circumstances, the
court should find certain mitigating factors: Defendant’s conduct was the result of circumstances unlikely to recur;
his character and attitude demonstrated that he was unlikely to commit another offense; he was likely to respond
affirmatively to probationary treatment; and imprisonment would result in excessive hardship to himself and his
dependents. Counsel also argued the court should find as a mitigating factor defendant’s cooperation with the
prosecution of his co-defendants.
The trial court concluded that applicable law did not allow him to consider “post[-]offense conduct,” and
declined to weigh such evidence in assessing mitigating factors. The court found only mitigating factor twelve
applied, based upon defendant’s cooperation with the State, and determined that the following aggravating factors
applied: the risk that defendant will reoffend; defendant’s likely involvement in organized criminal activity; the
extent and seriousness of defendant’s prior criminal record; and the need to deter defendant and others. Having
determined that the aggravating factors substantially outweighed the sole mitigating factor, and having noted that the
State’s recommendation was at “the lowest end of the third degree range,” the court sentenced defendant in
accordance with the plea agreement to a three-year term of imprisonment without a period of parole ineligibility.
Defendant appealed his sentence to the Appellate Division, arguing before an excessive-sentencing panel
that a non-custodial sentence was warranted in light of defendant’s post-offense rehabilitative efforts. The panel
rejected counsel’s arguments and affirmed defendant’s sentence in a summary order.
The Court granted defendant’s petition for certification. 215 N.J. 488 (2013).
HELD: Because a sentencing analysis is a fact-sensitive inquiry, which must be based on consideration of all the
competent and credible evidence raised by the parties at sentencing, the trial court must consider evidence of a
defendant’s post-offense conduct. This matter is remanded for resentencing to ensure consideration of all of the
facts relevant to the applicable aggravating and mitigating factors.
1
1. Prior to the Code of Criminal Justice, criminal sentences were beyond the scope of appellate review. Under prior
law, sentencing courts exercised a wide discretion in gathering evidence concerning the defendant’s life and
characteristics. To promote uniformity in sentencing, the Legislature replaced the unfettered discretion of prior law
with a structured discretion designed to foster less arbitrary and more equal sentences. The Code does not, however,
require the trial court to ignore a defendant’s individual characteristics and circumstances. This Court has
recognized that “the Legislature codified to a certain extent the traditional emphasis on individualized sentencing,”
resulting in a “tension between an individualized sentencing approach on the one hand, and the reforms aimed at
sentencing uniformity on the other.” State v. Randolph, 210 N.J. 330, 346 (2012). (pp. 8-9)
2. In State v. Randolph, the Court observed that “the discretion the sentencing court wielded pre-Code survives to a
more limited extent through the court’s analysis of the aggravating and mitigating factors set forth in N.J.S.A.
2C:44-1.” 210 N.J. 330, 348 (2012). The Court also recognized in Randolph that sentencing courts are required to
give due consideration to a presentence report, prepared after a defendant’s conviction, which includes
individualized information pertaining to a defendant’s criminal, psychiatric, employment, personal, and family
history. Id. at 346 (citing N.J.S.A. 2C:44-6(a), (b)). Thus, while the judge “must sentence in accordance with the
applicable statutes,” the sentencing statute “‘still allow[s] for evaluation of a range of information unconstrained by
evidential considerations.’” Id. at 348 (citing State v. Natale, 184 N.J. 458, 483-84 (2005)). In this matter, the
relevant mitigating factors are illustrative of the requirement that the sentencing court consider defendant’s
individual qualities and circumstances. (pp. 9-11)
3. Having reaffirmed that each defendant is entitled to an individualized consideration during sentencing, the Court
addresses whether that assessment requires the trial court to consider a defendant’s post-offense conduct at the initial
sentencing phase. The Court notes that in Randolph, it held that, upon remand for resentencing, a trial court must
engage in a de novo review of the aggravating and mitigating factors applicable to the defendant at the time of his
resentencing. 210 N.J. at 333. In reaching that conclusion, the Court relied, in part, on Pepper v. United States, in
which the United States Supreme Court overturned the Eighth Circuit’s ruling prohibiting consideration of a
defendant’s post-sentencing rehabilitative efforts, explaining that “possession of the fullest information possible
concerning the defendant’s life and characteristics” is “[h]ighly relevant -- if not essential -- to [the] selection of an
appropriate sentence.” 131 S. Ct. 1229, 1240 (2011) (alteration in original) (internal quotation marks and additional
citation omitted). (pp. 11-13)
4. Against that backdrop, this Court holds that the trial court should view a defendant as he or she stands before the
court on the day of sentencing, and that evidence of post-offense conduct, rehabilitative or otherwise, must be
considered in assessing the applicability of, and weight to be given to, aggravating and mitigating factors. The
Court notes that the sentencing statute preserves the concept of individualized assessment “through the application
of some aggravating and mitigating factors that . . . invite consideration by the sentencing court of the individual
defendant’s unique character and qualities,” and reaffirms its prior holding that a defendant in a resentencing hearing
“is entitled to the same full review and explanation of the finding and weighing of the aggravating and mitigating
factors” as during sentencing. Randolph, 210 N.J. at 349. The Court determines that such review must include
evidence relating to a defendant’s post-offense conduct, and applies to the trial court’s assessment of aggravating
and mitigating factors at a defendant’s initial sentencing hearing. (pp. 14-15)
5. The Court recognizes that the trial judge in this matter indicated that he did not accept defendant’s claims that he
had changed his life. However, in light of the judge’s statement that he could not consider defendant’s post-offense
conduct, the Court concludes that it cannot infer that defendant’s putative rehabilitation evidence was fully
considered when he was sentenced. The Court, therefore, vacates defendant’s sentence and remands to the trial
court for a de novo assessment of the applicable aggravating and mitigating factors, accounting for defendant’s post-
offense conduct. The resentencing court must consider defendant’s post-offense conduct up to the date of his
resentencing. (pp. 15-16)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court
for resentencing consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-12 September Term 2013
072259
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH M. JAFFE,
Defendant-Appellant.
Argued September 8, 2014 – Decided December 15, 2014
On certification to the Superior Court,
Appellate Division.
Matthew W. Reisig argued the cause for
appellant (Reisig & Associates, attorneys;
Mr. Reisig and Jeffrey M. Zajac, on the
briefs).
Reema Sethi Kareer, Assistant Prosecutor/
Special Deputy Attorney General, argued the
cause for respondent (Fredric M. Knapp,
Morris County Prosecutor, attorney).
Jeffrey S. Mandel argued the cause for
amicus curiae Association of Criminal
Defense Lawyers of New Jersey (Cutolo
Mandel, attorneys).
JUSTICE SOLOMON delivered the opinion of the Court.
Defendant Joseph M. Jaffe received a three-year state
prison sentence almost a year after pleading guilty to an
accusation charging him with third-degree conspiracy to possess
cocaine with the intent to distribute. At sentencing, defense
1
counsel asked the court to consider defendant’s rehabilitative
efforts since he was arrested and charged. The trial court
declined to weigh such evidence in assessing mitigating factors,
concluding that applicable law did not allow him to consider
“post[-]offense conduct.” In light of our recent holding in
State v. Randolph, 210 N.J. 330 (2012), that a defendant should
be assessed as he stands before the court on the day of
sentencing, we conclude that the sentencing court must consider
a defendant’s relevant post-offense conduct in weighing
aggravating and mitigating factors.
A judge’s sentencing analysis is a fact-sensitive inquiry,
which must be based on consideration of all the competent and
credible evidence raised by the parties at sentencing. Because
we decide here that the trial court must consider at sentencing
evidence of a defendant’s post-offense conduct, we are compelled
to remand for resentencing to ensure consideration of all of the
facts relevant to the applicable aggravating and mitigating
factors.
I.
The following facts were established during defendant’s
plea colloquy. Pursuant to an investigation into a local drug
distribution operation conducted by detectives of the Morris
County Prosecutor’s Office, defendant and two others were
charged with various drug offenses. Defendant entered into a
2
negotiated plea agreement in which he agreed to plead guilty to
third-degree conspiracy to possess cocaine with the intent to
distribute, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-
5(a)(1), and to cooperate with the State’s prosecution of his
co-defendants. In exchange, the State agreed to recommend a
three-year prison term and to allow defendant the right to argue
for probation or a custodial sentence to be served in county
jail.
Defendant pled guilty on August 16, 2011. He admitted to
acting as an intermediary between his co-defendants to ensure
that payment for the cocaine reached the appropriate party.
However, sentencing was delayed until his co-defendants’ cases
were resolved. As a result, defendant was not sentenced until
August 3, 2012, almost one year after the entry of his guilty
plea.
At the sentencing hearing, defense counsel asserted that
because nearly a year had passed since defendant’s conviction,
the pre-sentence investigation and report were stale. He argued
that leniency was warranted because, in the time between
defendant’s plea and sentencing, defendant had not reoffended,
was gainfully employed, and had been acting as the “de facto”
father to his girlfriend’s five-year-old child. Counsel also
submitted a letter written by the mother of defendant’s child,
claiming that defendant was “a great father.” Defendant
3
testified that he was using drugs at the time he committed the
offense, but had been sober since the date of his arrest, had
been attending Narcotics Anonymous with a sponsor, had joined “a
mixed issue support group” with his church, had “recently
started working with at-risk teenagers,” and was engaged to be
married.
Counsel argued that, based upon defendant’s post-conviction
rehabilitative efforts and circumstances, the court should find
defendant’s conduct was the result of circumstances unlikely to
recur, N.J.S.A. 2C:44-1(b)(8), his character and attitude
demonstrated that he was unlikely to commit another offense,
N.J.S.A. 2C:44-1(b)(9), he was likely to respond affirmatively
to probationary treatment, N.J.S.A. 2C:44-1(b)(10), and
imprisonment would result in excessive hardship to himself and
his dependents, N.J.S.A. 2C:44-1(b)(11). Emphasizing
defendant’s role in the conspiracy was “minor,” counsel also
argued the court should find as a mitigating factor defendant’s
cooperation with the prosecution of his co-defendants, N.J.S.A.
2C:44-1(b)(12).
The court agreed that defendant’s pre-sentence report was
“somewhat stale.” However, the court expressly refused to
consider defendant’s post-offense conduct, explaining that
[w]e have an interesting method of sentencing
in the State of New Jersey, one that does not
encompass, frankly, post-offense conduct,
4
unlike the federal system, which actually
takes that into consideration. It may be one
of the reasons why when someone is arrested on
federal charges, they find their way to the
local soup kitchen to stand in line to help
out. I don’t mean to diminish that, but it is
a factor under the federal sentencing
guidelines, a factor we do not have.
The court then disagreed with defense counsel’s assertion that
defendant had “changed his life,” stating: “It sounds like he’s
certainly turned the corner and made a u-turn, but then again,
that was the way it appeared in 1998 as well.”
Having refused to consider defendant’s post-offense
conduct, the court found only mitigating factor twelve applied.
Based upon defendant’s seven previous arrests and three prior
indictable convictions, the court found the following
aggravating factors applied: the risk that defendant will
reoffend, N.J.S.A. 2C:44-1(a)(3); the extent and seriousness of
defendant’s prior criminal record, N.J.S.A. 2C:44-1(a)(6); and
the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9).
Noting the nature of the present offense, the court also found
as an aggravating factor that defendant likely was involved in
organized criminal activity, N.J.S.A. 2C:44-1(a)(5).
Having determined that the aggravating factors
substantially outweighed the sole mitigating factor, and having
noted that the State’s recommendation was at “the lowest end of
the third degree range,” the court sentenced defendant in
5
accordance with the plea agreement to a three-year term of
imprisonment without a period of parole ineligibility, less 121
days of jail credit.
Defendant appealed his sentence. Before an excessive-
sentencing panel of the Appellate Division, defense counsel
argued that a non-custodial sentence was warranted in light of
defendant’s post-offense rehabilitative efforts. The panel
rejected counsel’s arguments and affirmed defendant’s sentence
in a summary order.
We granted defendant’s petition for certification. 215
N.J. 488 (2013).
II.
The issue raised by the parties in this appeal requires us
to consider the scope of our holding in State v. Randolph,
supra. In that case, we stated that, “when ‘reconsideration’ of
sentence or ‘resentencing’ is ordered after appeal, the trial
court should view defendant as he stands before the court on
that day[.]” 210 N.J. at 354. While defendant acknowledges
that Randolph was decided in the context of a resentencing
hearing following an ambiguously worded remand order, he asserts
that our reasoning in Randolph applies equally at the initial
sentencing stage -- particularly where, as here, a significant
amount of time has passed between the entry of the guilty plea
and sentencing.
6
The State counters that Randolph was a decision addressing
the scope of appellate practice rather than “a substantive
decision regarding the applicability of any particular
mitigating factors to a particular sentence being imposed in the
first instance.” Nevertheless, the State characterizes
defendant’s argument that the sentencing court should consider
evidence of post-offense rehabilitative conduct as an
“unremarkable proposition.” The State argues instead that the
judge’s statements, viewed in context, indicate that the judge
considered and rejected defendant’s claims that he had reformed.
The State specifically notes the judge’s statement that, “while
it’s good to hear [defendant] appears to have turned his life
around, is helping young people, is helping himself by attending
NA meetings, the Court cannot turn a blind eye to his criminal
conduct.” The State maintains this acknowledgment demonstrates
that the judge considered defendant’s putative rehabilitative
evidence, implicitly found it incredible, and rejected the
contention that this evidence warranted a finding of any
additional mitigating factors.
Amicus curiae Association of Criminal Defense Lawyers of
New Jersey (ACDL) argues that, by expressly refusing to consider
defendant’s post-offense rehabilitative efforts, the trial judge
disregarded evidence of mitigating factors, and in doing so,
failed to consider all the facts necessary for the comprehensive
7
sentencing analysis to which defendant was entitled. Citing
Randolph, supra, and State v. Natale, 184 N.J. 458 (2005), the
ACDL contends that this Court has encouraged sentencing judges
to consider as much information as possible regarding the
characteristics of a defendant’s life and circumstances at
sentencing, and that consideration of defendant’s post-offense
conduct falls within the sentencing framework established by the
Legislature.
III.
A.
We begin with a review of the requirements and purpose of
our sentencing guidelines.
Prior to the enactment of the New Jersey Code of Criminal
Justice, it was “axiomatic that criminal sentences were beyond
the scope of appellate review.” Roth, supra, 95 N.J. at 341.
Under prior law, sentencing courts “‘exercise[d] a wide
discretion’” in gathering evidence “‘concerning the defendant’s
life and characteristics.’” Natale, supra, 184 N.J. at 472(citations and internal quotation marks omitted). The goal was
to “‘provide the sentencing judge with the composite picture of
the “whole man.”’” Ibid.To promote uniformity in sentencing, the Legislature
“replace[d] ‘the unfettered discretion of prior law with a
structured discretion designed to foster less arbitrary and more
8
equal sentences.’” State v. Bridges, 131 N.J. 402, 420 (1993)
(quoting State v. Hartye, 105 N.J. 411, 418 (1987)). In doing
so, the Legislature “establishe[d] a general framework to guide
judicial discretion” in order to promote uniformity in
sentencing. Natale, supra, 184 N.J. at 485 (alteration in
original) (quoting State v. Hodge, 95 N.J. 369, 374-75 (1984))
(internal quotation marks omitted).
The Code does not, however, require the trial court to
ignore a defendant’s individual characteristics and
circumstances. To the contrary, the Legislature listed as
“general purposes” of the sentencing statute the furtherance of
“the correction and rehabilitation of offenders,” N.J.S.A. 2C:1-
2(b)(2), and “differentiat[ion] among offenders with a view to a
just individualization in their treatment,” N.J.S.A. 2C:1-
2(b)(6). Thus, “the Legislature codified to a certain extent
the traditional emphasis on individualized sentencing,”
resulting in a “tension between an individualized sentencing
approach on the one hand, and the reforms aimed at sentencing
uniformity on the other.” Randolph, supra, 210 N.J. at 346.
We observed previously that “the discretion the sentencing
court wielded pre-Code survives to a more limited extent through
the court’s analysis of the aggravating and mitigating factors
set forth in N.J.S.A. 2C:44-1.” Id. at 348 (citing Natale,
9
supra, 184 N.J. at 486).1 In addition to the sentencing
statute’s general purpose provision, we noted the Legislature
requires the sentencing court to give “‘due consideration’” to a
presentence report, prepared after a defendant’s conviction,
which “includes individualized information pertaining to a
defendant’s criminal, psychiatric, employment, personal, and
family history.” Id. at 346 (citing N.J.S.A. 2C:44-6(a), (b)).
Noting these observations and our determination in Natale that
“the judge has discretion but must sentence in accordance with
the applicable statutes,” we concluded that the sentencing
statute still “allow[s] for evaluation of a range of information
unconstrained by evidential considerations.” Id. at 348 (citing
Natale, supra, 184 N.J. at 483-84).
The mitigating factors relevant here are illustrative of
the requirement that the sentencing court consider defendant’s
individual qualities and circumstances. Defendant maintains
before this Court that his post-offense rehabilitative conduct
warrants a finding that his criminal behavior was the result of
1Although N.J.S.A. 2C:44-1(b) states that the court “may
properly consider” the listed mitigating factors, we have held
that, “where mitigating factors are amply based in the record
before the sentencing judge, they must be found.” State v.
Dalziel, 182 N.J. 494, 504-05 (2005). Accordingly, where the
evidence supports a finding of a mitigating factor, that
evidence must be part of the court’s “deliberative process.”
Id. at 505; see also State v. Hess, 207 N.J. 123, 155 n.8 (2011)
(noting same).
10
circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8), that
his character and attitude show he is unlikely to commit another
offense, N.J.S.A. 2C:44-1(b)(9), that he is likely to respond
affirmatively to probationary treatment, N.J.S.A. 2C:44-
1(b)(10), and that imprisonment would result in excessive
hardship to himself and his dependents, N.J.S.A. 2C:44-1(b)(11).
“[T]he finding, weighing, and balancing of [these] mitigating
factors” requires the court to assess the character of the
offender, as well as “the severity” of the proposed sentence in
relation to “the crime that the defendant committed.” Randolph,
supra, 210 N.J. at 345, 349.
Having determined that each “[d]efendant is entitled to
[an] individualized consideration during sentencing,” id. at
349, see N.J.S.A. 2C:1-2(b)(2), (6), we turn to the question of
whether that assessment requires the trial court to consider a
defendant’s post-offense conduct at the initial sentencing
phase.
B.
In Randolph, we held that, upon remand for resentencing, a
trial court must engage in a de novo review of the aggravating
and mitigating factors applicable to the defendant at the time
of his resentencing. Id. at 333. On appeal from his initial
resentencing, Randolph argued that remand was necessary to
reweigh the aggravating and mitigating factors to determine if
11
the imposition of three consecutive maximum terms was warranted.
Id. at 336-37. The Appellate Division agreed, ordering “remand
for reconsideration and justification for the sentence of three
consecutive maximum terms.” Id. at 337.
At his second resentencing hearing, Randolph argued that,
in the period between his initial sentencing and his second
resentencing hearing, he had joined a Narcotics Anonymous
program, obtained his General Equivalency Diploma, and attended
behavior modification and parenting classes. Id. at 337-38.
The second resentencing court, narrowly interpreting the remand
order to require only a statement of the specific factual
findings underlying the imposition of consecutive sentences,
refused to consider Randolph’s post-sentencing rehabilitative
evidence. Id. at 338. We granted certification to consider
whether the resentencing court properly declined to consider
Randolph’s putative rehabilitative evidence based on his conduct
in the period between his initial sentencing and second
resentencing hearing, which occurred over seven years later.
Id. at 333, 335, 337.
Finding the Appellate Division’s remand order ambiguous, we
held that “defendant was entitled to present the
[rehabilitative] evidence and to have it considered[.]” Id. at
333. We determined that, at resentencing, “the trial court was
called on to conduct nothing less than a resentencing, which
12
necessarily involves the reevaluation and reweighing of
aggravating and mitigating factors.” Ibid.We acknowledged that, unlike the federal sentencing
statute, 18 U.S.C.A. § 3661, our sentencing statute contains no
de-limiting provision regarding information to be considered by
the sentencing court in relation to a defendant’s background,
character, and conduct. Id. at 346. However, we have found --
and reaffirm here -- that the sentencing statute and our case
law “left open for consideration . . . a wider array of
information” for the trial court to consider “once the decision
to impose incarceration had been made and the focus shifted to
the weighing of aggravating and mitigating factors[.]” Id. at
346-48 (citing Hodge, supra, 95 N.J. at 377).
In reaching our decision in Randolph, we relied, in part,
on Pepper v. United States, ___ U.S. ___, 131 S. Ct. 1229, 179
L. Ed. 2d 196 (2011). There, the United States Supreme Court
overturned the Eighth Circuit’s ruling prohibiting consideration
of a defendant’s post-sentencing rehabilitative efforts. Id. at
__, 131 S. Ct. at 1243, 179 L. Ed. 2d at 215. The Court
observed that “‘possession of the fullest information possible
concerning the defendant's life and characteristics’” is
“‘[h]ighly relevant -- if not essential -- to [the] selection of
an appropriate sentence.’” Id. at ___, 131 S. Ct. at 1240, 179
L. Ed. 2d at 212 (alteration in original) (quoting Williams v.
13
New York, 337 U.S. 241, 247, 69 S. Ct. 1079, 1083, 93 L. Ed.
1337, 1342 (1949)). In reaching our decision here, we reaffirm
our acceptance of the “principle that ‘the punishment should fit
the offender and not merely the crime.’” Randolph, supra, 210
N.J. at 342 (quoting Pepper, supra, __ U.S. at __, 131 S. Ct. at
1240, 179 L. Ed. 2d at 212 (internal quotation marks omitted)).
As noted above, the sentencing statute preserves the
concept of individualized assessment “through the application of
some aggravating and mitigating factors that . . . invite
consideration by the sentencing court of the individual
defendant’s unique character and qualities.” Id. at 349. We
acknowledged in Randolph the principles relied upon in cases
interpreting the federal sentencing statute, and held that a
defendant in a resentencing hearing “is entitled to the same
full review and explanation of the finding and weighing of the
aggravating and mitigating factors” as during sentencing. Ibid.
This review must include evidence relating to a defendant’s
post-offense conduct. In the court’s performance of that
function, the defendant is entitled to have his post-offense
rehabilitative evidence considered. Id. at 333. We see no
reason why these principles should not be applied to the court’s
assessment of aggravating and mitigating factors at a
defendant’s initial sentencing hearing.
14
In conclusion, the trial court should view a defendant as
he or she stands before the court on the day of sentencing.
This means evidence of post-offense conduct, rehabilitative or
otherwise, must be considered in assessing the applicability of,
and weight to be given to, aggravating and mitigating factors.
We recognize the trial judge here indicated that he did not
accept defendant’s claims that he had changed his life. “On
appeal, a trial judge’s sentencing determinations are entitled
to substantial deference.” State v. Pagan, 378 N.J. Super. 549,
558 (App. Div. 2005); see also State v. Lawless, 214 N.J. 594,
606 (2013) (noting that reviewing court may “not substitute its
judgment for the judgment of the sentencing court”). However,
in light of the judge’s statement that he could not consider
defendant’s post-offense conduct, we cannot infer that
defendant’s putative rehabilitation evidence was fully
considered when he was sentenced.2
Given the ambiguity in the record, the interests of justice
oblige us to vacate defendant’s sentence and remand to the trial
court for a de novo assessment of the applicable aggravating and
mitigating factors, accounting for defendant’s post-offense
2 Although the State was under no obligation to provide an
updated presentencing report, we note that “[t]he fact that no
revised presentence report was prepared documenting any alleged
post-incarceration rehabilitation further supports a conclusion
that the issue of rehabilitation was not fully considered.”
United States v. Diaz, 639 F.3d 616, 623 (3d Cir. 2011).
15
conduct. In accordance with Randolph, the resentencing court
must consider defendant’s post-offense conduct up to the date of
his resentencing. We express no view, however, on the merits of
this evidence or the weight that it should be given. Those are
matters for consideration by the sentencing court, in the
exercise of its discretion.
IV.
The judgment of the Appellate Division is reversed, and the
matter is remanded for resentencing consistent with this
opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUSTICE SOLOMON’s opinion.
16
SUPREME COURT OF NEW JERSEY
NO. A-12 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH M. JAFFE,
Defendant-Appellant.
DECIDED December 15, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7
1