In New Jersey, a Motion for reconsideration or reduction of the sentence imposed by the Court is made pursuant to Court Rule 3:21-10. The rule requires that this type of motion must be filed within sixty days after the date of sentencing. Under most circumstances, the motion is heard by the judge who imposed the sentence.
Exceptions to the sixty day filing requirement are permitted when:
- The applicant is drug or alcohol dependent; and, the application is for changing a custodial sentence into a treatment or rehabilitation program.
- The applicant is ill or otherwise infirm and in need of medical treatment not available while incarcerated.
- The motion is made as a joint application by the State and the defense, based upon ‘good cause’ set out in the application.
- The application is making a change authorized within the statutory sentencing provisions of the criminal code.
- The application is for purposes of placing the defendant into the Intensive Supervision Program.
- The application is for the purpose of reducing a sentence imposed because of a prior conviction, which has subsequently been reversed on appeal.
It is important to note that the exceptions to the sixty day requirement set forth above require that any mandatory minimum period of parole ineligibility be served before the application will be considered by the Court.
Procedurally, the Motion for Reconsideration is filed with supporting affidavits and other documentation setting out the factual basis as to why the motion should be granted. As a practical consideration, the motion will be stronger if, among other things, the applicant has had a clean administrative record while incarcerated; has attended as many educational classes as possible – with the certificate of completion attached to the motion; has participated in a work assignment while incarcerated; and, if substance abuse is the basis of the application – that the defendant has attended AA (Alcoholics Anonymous) or NA (Narcotics Anonymous) counseling sessions while incarcerated.
If the motion will result in the release of the defendant back into society, it is not enough to just establish that time has passed, and that the defendant has accomplished these types of positive accomplishments while incarcerated. The supporting documentation should set out a support network for the defendant, if he were to be released. Where will he live? Who would he live with? What will he be doing once released? What are his employment opportunities? What will he be doing with his spare time? What efforts will he be making to re-integrate into the community he will be living in – like performing community related activities within his support group.
All of these considerations are helpful in establishing why this applicant deserves the reconsideration, because he has shown by his actions the ‘rehabilitation’ efforts made while incarcerated, and the steps he will be pursuing once he is released – to ensure his continued success. While all of these steps can be taken without the assistance of a lawyer, an experienced criminal defense lawyer like those at Bailey and Orozco can provide essential guidance to increase the likelihood of a successful motion.
