NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0177-24
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FREDY A. ROSARIO,
Defendant-Respondent. _________________________
Submitted September 10, 2025 – Decided October 15, 2025
Before Judges Paganelli and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 23-08-0771.
Camelia M. Valdes, Passaic County Prosecutor, attorney for appellant (Timothy P. Kerrigan, Chief Assistant Prosecutor, of counsel and on the briefs).
Markman & Cannan, LLC, attorneys for respondent (Robert R. Cannan, on the brief).
PER CURIAM The State of New Jersey appeals from the trial court's sentence of
defendant to probation following his guilty plea to a second-degree violation of
N.J.S.A. 2C:39-5(b)(1). Because we conclude the trial court misapplied the
sentencing guidelines, we vacate the sentence and remand for re-sentencing.
The parties agree to the following statement of facts:
On January 1, 2023, [d]efendant was operating a motor vehicle while intoxicated, and while he unlawfully possessed a loaded handgun. . . . While doing so, [d]efendant exited his car and became involved in a dispute with a parking attendant. . . . During that dispute, [d]efendant told the victim, "I will kill you and shoot you in the head you piece of s[**]t. I will kill you right now and you'll stay dead." . . . Defendant did not remove the handgun from the car, brandish it, or point it at the victim. . . . After leaving the scene, [d]efendant was pulled over after a police officer observed him using a cell phone while driving. . . . Defendant stumbled while exiting his car; then dropped his wallet on the ground and didn't have the balance to pick it up. . . . Defendant had a blood alcohol content of .09. . . .
Defendant was indicted as follows: second-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b)(1) (count one), and third-degree terroristic
threat, N.J.S.A. 2C:12-3(b) (count two). Defendant was also charged with
driving while intoxicated, N.J.S.A. 39:4-50; and issued a ticket for using a cell
phone while driving.
A-0177-24 2 The State filed a waiver of the mandatory minimum sentence under
N.J.S.A. 2C:39-5(b)(1), and in exchange for defendant's plea to count one,
agreed to recommend a three-year prison term with one year to be served without
parole eligibility. In effect, the State agreed that defendant would be sentenced
in the third-degree range. The charge of terroristic threats was to be dismissed.
Defendant pleaded to count one and noted, at sentencing, he would argue for
probation without any prison time. The State objected to probation.
At sentencing, defendant pleaded guilty to driving while intoxicated under
N.J.S.A. 39:4-50, and the State dismissed the cell phone ticket.
As to sentencing, defendant argued he had no prior criminal history. He
also asserted that he was sixty-four years old and was "in poor health." He
alleged he had "severe diabetes," "suffered two strokes, both of which resulted
in the placement of . . . medical stent[s]," "suffered a heart attack," and was
"advised by [his] doctor that he [wa]s not expected to live a long life."
Defendant contended he had two children, ages thirty-six and thirty-seven; and
three grandchildren, ages eighteen, twelve, and two. Defendant asserted he was
married for over twenty-five years but was divorced "just prior to this offense."
He blamed his use of alcohol for "ruining his marriage" and "harming the
A-0177-24 3 relationship he . . . had with his children and his grandchildren." He contended
that because of this incident, he no longer drinks alcohol.
In his statement to the court, defendant expressed he was "very sorry" and
"promise[d this would] never happen again." Further, defendant stated his
drinking affected him and his family. He offered a "guarantee" and was "one
hundred percent sure" this was never going to "happen again."
The trial court found defendant: (1) was sixty-four years old; (2) had no
prior record; (3) had no substance abuse issues or treatment; (4) previously
worked, was unemployed, and on social security; (5) was married and divorced
in 2022, has a great relationship with his children, and is an "involved
grandparent"; and (6) was no longer drinking alcohol.
In considering sentencing, the trial court assessed mitigating and
aggravating factors. See N.J.S.A. 2C:44-1. As to mitigating factors, the court
found factor: (1) whether defendant "caused nor threatened serious harm,"
N.J.S.A. 2C:44-1(b)(1), was not applicable or "not given much weight,"
considering defendant had a loaded gun, was intoxicated, the victim was
impacted, and the situation could have escalated very quickly; (7) whether
defendant had a "history of prior . . . criminal activity," N.J.S.A. 2C:44-1(b)(7),
was applicable or "give[n] somewhat medium weight," because defendant had
A-0177-24 4 no record; (8) whether "defendant's conduct was the result of circumstances
unlikely to recur," N.J.S.A. 2C:44-1(b)(8), was not applicable or "not . . . given
much weight" because the court was "not convinced . . . this conduct was the
result of circumstances unlikely to reoccur"; (9) whether defendant's "character
and attitude . . . indicate[d] that he was unlikely to commit another offense,"
N.J.S.A. 2C:44-1(b)(9), was "clearly applicable" and "given somewhat medium
weight" because defendant was "clearly remorseful," plus "[h]e is 64 years old,"
"[h]as health challenges," has a "close relationship" with his adult children and
grandchildren, "[t]he youngest one being" two years of age, when he "addressed
the [c]ourt, he appeared to be genuinely sorry, remorseful"; and "since he [was]
. . . picked up on this charge, he has not picked up any other charges . . . [or]
motor vehicle offenses in terms of driving while intoxicated"; (10) whether
"defendant is particularly likely to respond affirmatively to probationary
treatment," N.J.S.A. 2C:44-1(b)(10), was applicable because "probation will
[provide] enough of a deterrence"; (11) whether "imprisonment of the defendant
would entail excessive hardship to the defendant or the defendant's dependents,"
N.J.S.A. 2C:44-1(b)(11), was not applicable because defendant had no
dependents and while prison would impose a hardship it was not "an excessive
hardship" because defendant's "hardship [wa]s not unique or something
A-0177-24 5 idiosyncratic"; (12) whether there was a "willingness of . . . defendant to
cooperate with law enforcement authorities," N.J.S.A. 2C:44-1(b)(12), was
applicable and "give[n] somewhat low weight because . . . [defendant was] not
fleeing the scene and [was] being cooperative in the sense that this gun was
located when he remained on the scene"; (13) N.J.S.A. 2C:44-1(b)(13), was not
applicable because defendant was "not a youthful defendant"; and (14) N.J.S.A.
2C:44-1(b)(14), was not applicable, "because defendant [wa]s . . . not under the
age of 26 at the time of the offense."
With regard to aggravating factors, the court found factor: (3) "[t]he risk
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0177-24
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FREDY A. ROSARIO,
Defendant-Respondent. _________________________
Submitted September 10, 2025 – Decided October 15, 2025
Before Judges Paganelli and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 23-08-0771.
Camelia M. Valdes, Passaic County Prosecutor, attorney for appellant (Timothy P. Kerrigan, Chief Assistant Prosecutor, of counsel and on the briefs).
Markman & Cannan, LLC, attorneys for respondent (Robert R. Cannan, on the brief).
PER CURIAM The State of New Jersey appeals from the trial court's sentence of
defendant to probation following his guilty plea to a second-degree violation of
N.J.S.A. 2C:39-5(b)(1). Because we conclude the trial court misapplied the
sentencing guidelines, we vacate the sentence and remand for re-sentencing.
The parties agree to the following statement of facts:
On January 1, 2023, [d]efendant was operating a motor vehicle while intoxicated, and while he unlawfully possessed a loaded handgun. . . . While doing so, [d]efendant exited his car and became involved in a dispute with a parking attendant. . . . During that dispute, [d]efendant told the victim, "I will kill you and shoot you in the head you piece of s[**]t. I will kill you right now and you'll stay dead." . . . Defendant did not remove the handgun from the car, brandish it, or point it at the victim. . . . After leaving the scene, [d]efendant was pulled over after a police officer observed him using a cell phone while driving. . . . Defendant stumbled while exiting his car; then dropped his wallet on the ground and didn't have the balance to pick it up. . . . Defendant had a blood alcohol content of .09. . . .
Defendant was indicted as follows: second-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b)(1) (count one), and third-degree terroristic
threat, N.J.S.A. 2C:12-3(b) (count two). Defendant was also charged with
driving while intoxicated, N.J.S.A. 39:4-50; and issued a ticket for using a cell
phone while driving.
A-0177-24 2 The State filed a waiver of the mandatory minimum sentence under
N.J.S.A. 2C:39-5(b)(1), and in exchange for defendant's plea to count one,
agreed to recommend a three-year prison term with one year to be served without
parole eligibility. In effect, the State agreed that defendant would be sentenced
in the third-degree range. The charge of terroristic threats was to be dismissed.
Defendant pleaded to count one and noted, at sentencing, he would argue for
probation without any prison time. The State objected to probation.
At sentencing, defendant pleaded guilty to driving while intoxicated under
N.J.S.A. 39:4-50, and the State dismissed the cell phone ticket.
As to sentencing, defendant argued he had no prior criminal history. He
also asserted that he was sixty-four years old and was "in poor health." He
alleged he had "severe diabetes," "suffered two strokes, both of which resulted
in the placement of . . . medical stent[s]," "suffered a heart attack," and was
"advised by [his] doctor that he [wa]s not expected to live a long life."
Defendant contended he had two children, ages thirty-six and thirty-seven; and
three grandchildren, ages eighteen, twelve, and two. Defendant asserted he was
married for over twenty-five years but was divorced "just prior to this offense."
He blamed his use of alcohol for "ruining his marriage" and "harming the
A-0177-24 3 relationship he . . . had with his children and his grandchildren." He contended
that because of this incident, he no longer drinks alcohol.
In his statement to the court, defendant expressed he was "very sorry" and
"promise[d this would] never happen again." Further, defendant stated his
drinking affected him and his family. He offered a "guarantee" and was "one
hundred percent sure" this was never going to "happen again."
The trial court found defendant: (1) was sixty-four years old; (2) had no
prior record; (3) had no substance abuse issues or treatment; (4) previously
worked, was unemployed, and on social security; (5) was married and divorced
in 2022, has a great relationship with his children, and is an "involved
grandparent"; and (6) was no longer drinking alcohol.
In considering sentencing, the trial court assessed mitigating and
aggravating factors. See N.J.S.A. 2C:44-1. As to mitigating factors, the court
found factor: (1) whether defendant "caused nor threatened serious harm,"
N.J.S.A. 2C:44-1(b)(1), was not applicable or "not given much weight,"
considering defendant had a loaded gun, was intoxicated, the victim was
impacted, and the situation could have escalated very quickly; (7) whether
defendant had a "history of prior . . . criminal activity," N.J.S.A. 2C:44-1(b)(7),
was applicable or "give[n] somewhat medium weight," because defendant had
A-0177-24 4 no record; (8) whether "defendant's conduct was the result of circumstances
unlikely to recur," N.J.S.A. 2C:44-1(b)(8), was not applicable or "not . . . given
much weight" because the court was "not convinced . . . this conduct was the
result of circumstances unlikely to reoccur"; (9) whether defendant's "character
and attitude . . . indicate[d] that he was unlikely to commit another offense,"
N.J.S.A. 2C:44-1(b)(9), was "clearly applicable" and "given somewhat medium
weight" because defendant was "clearly remorseful," plus "[h]e is 64 years old,"
"[h]as health challenges," has a "close relationship" with his adult children and
grandchildren, "[t]he youngest one being" two years of age, when he "addressed
the [c]ourt, he appeared to be genuinely sorry, remorseful"; and "since he [was]
. . . picked up on this charge, he has not picked up any other charges . . . [or]
motor vehicle offenses in terms of driving while intoxicated"; (10) whether
"defendant is particularly likely to respond affirmatively to probationary
treatment," N.J.S.A. 2C:44-1(b)(10), was applicable because "probation will
[provide] enough of a deterrence"; (11) whether "imprisonment of the defendant
would entail excessive hardship to the defendant or the defendant's dependents,"
N.J.S.A. 2C:44-1(b)(11), was not applicable because defendant had no
dependents and while prison would impose a hardship it was not "an excessive
hardship" because defendant's "hardship [wa]s not unique or something
A-0177-24 5 idiosyncratic"; (12) whether there was a "willingness of . . . defendant to
cooperate with law enforcement authorities," N.J.S.A. 2C:44-1(b)(12), was
applicable and "give[n] somewhat low weight because . . . [defendant was] not
fleeing the scene and [was] being cooperative in the sense that this gun was
located when he remained on the scene"; (13) N.J.S.A. 2C:44-1(b)(13), was not
applicable because defendant was "not a youthful defendant"; and (14) N.J.S.A.
2C:44-1(b)(14), was not applicable, "because defendant [wa]s . . . not under the
age of 26 at the time of the offense."
With regard to aggravating factors, the court found factor: (3) "[t]he risk
. . . defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), was
applicable and "given somewhat low weight" because "[t]here [wa]s a risk that
. . . defendant would commit another offense" and (9) "[t]he need for deterring
. . . defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9), was
applicable because "both general and specific deterrents [we]re applicable to
this defendant" and given "somewhat . . . low weight." The court found "no
other aggravating factors that [we]re applicable."
The trial court noted defendant pleaded to a second-degree charge.
Therefore, "[i]n order to sentence . . . defendant one degree lower, . . . the [c]ourt
[stated it] must be clearly convinced that the mitigating factors substantially
A-0177-24 6 outweigh the aggravating factors, and the interest of justice demanded" a lower
sentence. The court concluded that "because th[e] . . . mitigating factors
substantially outweigh the aggravating factors, the defendant could now be
sentenced to a one degree lower." Therefore, the court sentenced defendant to
probation, finding probation would provide sufficient deterrence.
Further, the trial court found "that the defendant's imprisonment would do
a serious injustice, which overrides the need to deter others by such conduct ."
The court further found "the character of . . . defendant and [his] attitude . . .
satisfied [it that] after weighing the factors that the mitigating factors
substantially outweigh[ed] the aggravating factors."
The State appealed and the matter was placed on a sentencing calendar
pursuant to Rule 2:9-11. Having determined the matter was not ready for
disposition without full briefing, the matter was rescheduled and placed on a
plenary calendar.
On appeal, the State argues the trial court abused its discretion when it
imposed probation because the sentence was not supported by the trial court's
"own findings, the correct standard, or the facts of the case."
Defendant counters "the State had agreed to recommend a three-year
sentence with a one-year period of parole ineligibility" and he "would be asking
A-0177-24 7 for probation." Therefore, defendant asserts "[i]t is at least a bit surprising that
the State would agree to one of two possible outcomes and then seek relief from
. . . what is exactly the bargain that they entered into." The State denies any
agreement regarding a sentence to probation.
"Appellate courts review sentencing determinations in accordance with a
deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014); see also State v.
Torres, 246 N.J. 246, 258 (2021) (Our review is guided by an abuse of discretion
standard.). Thus, a "reviewing court must not substitute its judgment for that of
the sentencing court." Ibid.
The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364- 65 (1984).
[Ibid. (alteration in original).]
Under certain circumstances, a sentencing judge may downgrade a
second-degree offense. N.J.S.A. 2C:44-1(f)(2) provides:
In cases of convictions for crimes of the . . . second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice
A-0177-24 8 demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which the defendant was convicted. If the court does impose sentence pursuant to this paragraph, . . . the sentence shall not become final for 10 days in order to permit the appeal of the sentence by the prosecution.
[(Emphasis added).]
"Accordingly, downgrading, while not required, is appropriate where both
prongs of the statutory test are satisfied." State v. Trinidad, 241 N.J. 425, 453
(2020).
"[T]he Code does not define the 'interest of justice.'" Id. at 454 (quoting
State v. Megargel, 143 N.J. 484, 500-02 (2020)). Nevertheless, the standard
imposes a "high bar, requiring 'compelling' reasons for a downgrade." Ibid.
(quoting Megargel, 143 N.J. at 500-02).
Generally, the reasons that compel a downgrade must be in addition to, and separate from, the mitigating factors. Megargel, 143 N.J. at 502. As the focus of the inquiry is on the offense rather than the offender, "the most single important factor" is the severity of the crime. Id. at 500. Determining a crime's severity involves consideration of the "factual circumstances," including whether the defendant's crime was "similar to a lower degree offense, thus suggesting that a downgraded sentence may be appropriate." Ibid. The defendant's role in the crime is also relevant. Id. at 501 ("Was the defendant the mastermind, a loyal follower, an accomplice whose shared intent is problematic, or an individual who is mentally incapable of forming the
A-0177-24 9 necessary criminal intent?"). We further consider the sentence from the perspective of deterrence. Ibid. And, finally, we hesitate to downgrade where the Legislature has provided an enhanced penalty for a particular offense. Id. at 502.
[Ibid. (citations reformatted).]
"A person convicted of violating [N.J.S.A. 2C:39-5(b)] . . . shall be
sentenced by the court to a term of imprisonment." N.J.S.A. 2C:39-5(i); see also
N.J.S.A. 2C:43-6(c) ("Graves Act") ("A person who has been convicted under
[N.J.S.A. 2C:39-5(b)], . . . shall be sentenced to imprisonment by the court.").
"In the case of a crime of the second degree," the "term of years . . . shall be
fixed by the court and shall be between five years and [ten] years ." N.J.S.A.
2C:43-6(a)(2) and "[i]n the case of a crime of the third degree," the "term of
years . . . shall be fixed by the court and shall be between three years and five
years." N.J.S.A. 2C:43-6(a)(3).
Under N.J.S.A. 2C:43-6(c), "[t]he minimum term shall be fixed at one-
half of the sentence imposed by the court or 42 months, whichever is greater,
. . . during which the defendant shall be ineligible for parole."
However,
[o]n a motion by the prosecutor made to the assignment judge that the imposition of a mandatory minimum term of imprisonment under . . . N.J.S.A. 2C:43-6[(c)] for a defendant who has not previously been convicted of an
A-0177-24 10 offense under that subsection, . . . does not serve the interests of justice, the assignment judge shall place the defendant on probation pursuant to . . . [N.J.S.A. 2C:43- 2(b)(2)] or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole. . . .
[N.J.S.A. 2C:43-6.2 (emphasis added).]
Therefore, N.J.S.A. 2C:43-6.2 "exempts certain first-time offenders
convicted of Graves Act offenses from the mandatory minimum terms of
incarceration that the statute otherwise requires." State v. Nance, 228 N.J. 378,
391 (2017).
Concerning the presumption of incarceration, N.J.S.A. 2C:44-1(d)
provides:
The court shall deal with a person who has been convicted of a crime of the first or second degree, . . . by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that the defendant's imprisonment would be a serious injustice which overrides the need to deter such conduct by others.
[N.J.S.A. 2C:44-1(d) (emphasis added).]
The Court has noted "[t]he 'serious injustice' threshold is higher than the
showing necessary to downgrade an offense." Trinidad, 241 N.J. at 456 (quoting
Megargel, 143 N.J. at 501). Indeed, "the standard for invalidating sentences
because of a 'serious injustice' is extremely narrow: it should be applied only
A-0177-24 11 under circumstances that are 'truly extraordinary and unanticipated.'" State v.
Jarbath, 114 N.J. 394, 406-07 (1989) (quoting Roth, 95 N.J. at 358). The finding
of "'extraordinary and unanticipated' sentences" is uncommon. Id. at 407
(quoting Roth, 95 N.J. at 358). "It is . . . the rare case where imprisonment for
serious crimes will not further the goals of general deterrence." Id. at 408. It
occurs only "where the 'human cost' of punishing a particular defendant to deter
others from committing his offense would be 'too great.'" State v. Evers, 175
N.J. 355, 389 (2004) (quoting State v. Rivera, 124 N.J. 122, 125 (1991)).
Nevertheless, "there may be instances where the character and condition
of the defendant are so idiosyncratic that incarceration or extended
imprisonment for the purposes of general deterrence is not warranted." Jarbath,
114 N.J. at 408.
In Jarbath, where the defendant was an intellectually disabled "twenty-
one[-]year[-]old woman who ha[d] also been diagnosed as psychotic. . . . [And]
. . . was charged with the knowing murder of her nineteen-day-old son," id. at
398, the Court concluded imprisonment would impose a serious injustice. The
Court held:
There was little evidence to suggest that defendant could comprehend that she had committed a crime that deserved a prison term, or that she could modify her behavior based on her imprisonment. In addition,
A-0177-24 12 defendant did not have the understanding or emotional strength of relatively normal persons. She apparently could not endure life in prison without unusual suffering, that is, hardship and privation greatly exceeding that which would be accepted and endured by ordinary inmates as the inevitable consequences of punishment. In sum, . . . the "serious injustice" of imprisonment under these circumstances clearly outweigh[ed] the needs of general deterrence.
[Id. at 408-09.]
In State v. E.R., we affirmed "the sentencing judge['s] . . . discretionary
decision to impose probation rather than incarceration" when the defendant
presented "with an uncontradicted prognosis of imminent death within six
months due to an active disease process." 273 N.J. Super. 262, 265 (App. Div.
1994). We were convinced the defendant's condition could "be considered
'idiosyncratic' so as 'to forestall the deterrent effect of incarceration.'" Ibid.
In Nance, the Court considered "the role of the presumption of
incarceration prescribed by N.J.S.A. 2C:44-1(d) in the assignment judge's
sentencing determination under [N.J.S.A. 2C:43-]6.2 for a . . . second-degree
Graves Act offender." Nance, 228 N.J. at 394-95.
In "harmoniz[ing] the two components of the Code's sentencing scheme,"
id. at 395-96, the Court noted, "[n]othing in either provision suggests that a
Graves Act waiver exempts a defendant convicted of a . . . second-degree
A-0177-24 13 offense from the presumption of incarceration." Id. at 396. Instead, "[b]y
considering the standard of N.J.S.A. 2C:44-1(d) in deciding between the
probationary and custodial sentences authorized by [N.J.S.A. 2C:43-]6.2, an
assignment judge or presiding judge achieves the legislative objectives of both
provisions." Ibid. Therefore, "[t]he presumption of incarceration set forth in
N.J.S.A. 2C:44-1(d) should apply when an assignment judge or his or her
designee chooses between [N.J.S.A. 2C:43-]6.2's alternative sentences." Id. at
397.
Applying this well-established framework, we conclude the trial court
misapplied its discretion in sentencing defendant. We start with the State's
acknowledgment that "the facts and circumstances justif[ied] a downward
departure and imposition of the previously agreed upon three[-]year sentence
with one[-]year parole ineligibility." Therefore, there is no challenge to the trial
court's conclusion that defendant could receive a lower sentence than his second-
degree plea. The three-year sentence would comport with N.J.S.A. 2C:43-
6(a)(3).
However, the State asserts the court erred in ordering probation, because
the presumption of incarceration cannot be overcome under N.J.S.A. 2C:44-
(f)(2), absent "a serious injustice that overrides the need to deter others." The
A-0177-24 14 State notes "the presumption is not overcome merely because the mitigating
factors preponderate over the aggravating factors." Instead, the State asserts "a
defendant must be 'idiosyncratic' in order to 'forestall the deterrent effect of
incarceration' significantly enough to meet the 'serious injustice' standard." The
State emphasizes the trial court specifically found defendant's incarceration
would impose a hardship on defendant, however, defendant's hardship was
neither unique nor idiosyncratic.
We are persuaded by the State's arguments. Defendant does not present
with the conditions described in Jarbath or E.R. to warrant a finding of "serious
injustice" under N.J.S.A. 2C:44-(f)(2). The trial court's reference to defendant's
age, medical issues, and relationship with his family, are common hardships
associated with imprisonment. Indeed, "[i]mprisonment generally results in
hardship. It is not enough, however, that a defendant would find incarceration
difficult." State v. Jabbour, 118 N.J. 1, 8 (1990).
Thus, we conclude the trial court misused its discretion in applying the
sentencing guidelines.
Vacated and remanded for re-sentencing. We do not retain jurisdiction.
A-0177-24 15