Judge’s Power at a Sentencing hearing STATE OF NEW JERSEY v. ARTHUR W. VESPIGNANI, Unpublished opinion November 8, 2019
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
Trial Judge’s power and authority at sentencing is seen in this case. So long as the judge lays out his/her thoughts and opinions consist with the criminal code, sentencing guidelines and evidence established in the record; and those conclusions are rationally based upon those facts, the judge will not be overturned.
Here is the appellate court’s language:
“At sentencing, defendant presented a psychological evaluation recently performed by Dr. Witt, recommending against incarceration. In that evaluation, Dr. Witt noted his findings were “mixed.” “On the negative side,” Dr. Witt found that “despite having experienced significant legal consequences in 2003 and despite being supervised on [community supervision for life], [defendant] has relapsed with regard to downloading child pornography,” resulting in a rise in his risk assessment scores since his last evaluation in 2013. “On the positive side,” Dr. Witt noted defendant’s “therapist, a sex offender treatment expert, indicates that for the first time, [defendant] is taking psychotherapy seriously, showing more openness in treatment, and demonstrating a high degree of commitment and motivation,” which Dr. Witt found evident in his interview with defendant. Defendant’s therapist provided a letter attesting to his progress in therapy, asserting a prison term “would destabilize him emotionally and disrupt his ability to support himself and his family.”
Judge Curry took both evaluations as well as the entirety of the pre- sentence report, which noted defendant’s prior years of therapy, into account in finding aggravating factors three, six and nine, giving “light weight” to mitigating factor eleven, and rejecting defendant’s proffer of mitigating factors one, two, four, seven, eight, nine and twelve. In his comprehensive statement imposing sentence, Judge Curry stressed that possession of child pornography is not a “victimless crime” and that defendant could not fail to appreciate the wrongfulness of his conduct.
While pleased to note the progress defendant had made recently in therapy, the judge noted defendant’s prior record and that these offenses occurred while defendant continued under community supervision for life, underscoring the risk of further offense and the need to deter. In light of defendant’s history, the judge determined he could not find that recent therapy made it unlikely at this point that defendant would reoffend or would be particularly likely to respond to probationary treatment.
Judge Curry obviously took considerable care in crafting the sentence imposed in this case, weighing each of defendant’s arguments. Our review of the sentencing transcript convinces us that the judge’s careful findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence imposed is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70-71 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009). “