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A New Jersey appeals court, abiding by the U.S. Supreme Court ruling in Blakely v. Washington, has held New Jersey’s sentencing law violates the right to trial by jury. The judges, in State v. Natale, A-4289-03, found there was no material difference for constitutional purposes between New Jersey’s scheme and that of Washington State, which the U.S. high court struck down June 24 in Blakely, 124 S.Ct. 2531. “We find [the statute] unconstitutional to the extent it permits the trial judge to increase the presumptive sentence in the absence of jury fact-finding, based on proof beyond a reasonable doubt, of the aggravating factors,” wrote Judge Edwin Stern, joined by Donald Coburn and Barbara Byrd-Wecker. Under Blakely, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Natale is one of three recently decided appeals asserting that Blakely applies to New Jersey law, which sets a presumptive term but allows judges to increase or decrease a sentence within a prescribed range, based on their finding and weighing of aggravating and mitigating factors. In one other case, State v. Abdullah, A-1982-02, another state appeals court reached a contrary conclusion on Oct. 12. Judges Jack Lintner, James Petrella and Joseph Yannotti found that because the enhanced sentence fell within the statutory maximum, Blakely did not apply. Natale will not throw sentencing into disarray, at least not right away, because the court stayed it pending state Supreme Court review. Keeping the status quo will not preclude defendants from obtaining relief if the ruling is affirmed, but the state would have no remedy if the ruling were given immediate effect but later overturned, Stern explained. The stay will be automatically vacated if the state does not file a notice of appeal in 10 days or if the Court dismisses its appeal. Lee Moore, a spokesman for the Attorney General’s Office, says the state will seek an appeal. In October, the Supreme Court denied a direct appeal but it is likely to grant certification because of the conflicting appellate rulings. The Public Defender’s Office is seeking an appeal in Abdullah. Ocean County Prosecutor Thomas Kelaher, who heads the County Prosecutors Association, is grateful for the stay. “The judges have been around long enough to recognize the opinion could create a real problem,” he says. Under Natale, judges retain power to find facts that result in longer lockups. They can decide on periods of parole ineligibility and on whether to make sentences consecutive rather than concurrent. NEW STAGE IS SET As for Michael Natale, whose enhanced nine-year prison sentence for second-degree aggravated assault was at issue in the appeal, the court reversed and remanded for resentencing. On remand, prosecutors will have to decide whether to try the relevant aggravating factors that Camden County Superior Court Judge Linda Baxter found at sentencing. If they do so, the judge would have to consider the need for a supplementary indictment, the appeals court said. The prosecution may also re-consider its prior waiver of the right to present factors that would extend jail time under the No Early Release Act. Natale’s lawyer, Westmont’s Edward Crisonino, says he will cross-appeal. He says the court, once it found the sentencing provision unconstitutional, should have vacated the two-year enhanced portion rather than remanding. Crisonino plans to move this week for Natale’s release on bail pending appeal, noting that his client has been in jail for more than four years and is beyond his maximum parole ineligibilty based on the presumptive seven-year sentence. Kelaher says prosecutors have been concerned about the issue of the role of judges in finding sentencing facts since State v. Apprendi, 530 U.S. 466 (2000). There, the U.S. Supreme Court struck down New Jersey’s hate-crime law because it allowed enhanced punishment based on judges’ findings. The prosecutors’ response has been to try to get defendants to admit to aggravating factors while giving pleas. Steven Sanders, who appeared for the amicus Association of Criminal Defense Lawyers of New Jersey, says many questions remain, such as how to handle a Natale-type remand, whether those serving extended terms are entitled to bail pending appeal and whether Natale applies only to cases in the pipeline or extends back to Blakely or even Apprendi. Another question is what happens with the sentencing law if the Supreme Court affirms. It would probably require a legislative fix, says Sanders, of Chatham’s Arseneault, Fassett & Mariano. In the third Blakely-based appeal, State v. King, A-966-02, the court held the U.S. ruling does not apply to murder, based on statutory language that murder carries no presumptive term.

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