On November 5, 2018, the New Jersey Supreme Court decided the Bergen County case of State v. Nicholas Kiriakakis. The principal issue was whether N.J.S.A. 2C:43-6(b) violates the Sixth Amendment by giving a sentencing judge the discretion to impose a period of parole disqualification based on a balancing of aggravating and mitigating factors.
Writing for a unanimous Court, Justice Albin held in relevant part: In affirming the constitutionality of N.J.S.A. 2C:43-6(b), however, Abdullah relied on two cases that are no longer good law — Harris, which has been explicitly overruled by Alleyne, and State v. Stanton (2003), which has been implicitly overruled by both Alleyne and Grate. That Abdullah can no longer rest on the pillars of Harris or Stanton does not mean that N.J.S.A. 2C43-6(b) does not have a sturdy constitutional foundation.
As we will discuss, N.J.S.A. 2C:43-6(b) passes constitutional muster in the wake of both Alleyne and Grate.
A defendant convicted of second-degree conspiracy to distribute cocaine is subject to an ordinary-range sentence of five to ten years’ imprisonment and a parole ineligibility range of zero to five years. In setting the appropriate sentence in either range, the sentencing court must engage in several steps of discretionary decision-making.
First, the court must determine whether any of the aggravating factors or mitigating factors are supported by credible evidence in the record. Second, the court must assign an appropriate weight to any established factor. Third, the court must balance any aggravating factors against any mitigating factors and decide whether one set of factors outweighs the other.
In the case of an ordinary-term sentence, “when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range.” In the case of imposing a minimum period of parole ineligibility under N.J.S.A. 2C43-6(b), the court must be “clearly convinced that the aggravating factors substantially outweigh the mitigating factors,” and even then the court is not required to impose such a sentence.
The specific provision of the Sixth Amendment at issue here is the right to an impartial jury. The defense argument is that if a particular fact or set of facts subjects a defendant to a longer prison sentence, the fact(s) should be found by a unanimous jury at trial as opposed to a judge at sentencing.