There is a significant difference between sentences that can be imposed for a third degree offense and sentence that can be imposed for a second degree offense under the New Jersey’s Criminal Code.  (Code).  The sentencing range for a third degree offense is 3 to 5 years. The presumptive term is 4 years.  More importantly, however, the Code specifically instructs that first-time offenders have a presumption of non-incarceration, which means that on the day of sentencing, the trial court must impose a non-custodian term absent special circumstances.

A second degree offense requires a sentencing range of 5 to 10 years with a presumptive term of 7 years.  Defendants who plea to or are convicted of a second degree offense are presumed to receive a custodial term.

On many occasions, the government will negotiate a plea arrangement that will require the defendant charged with a second degree offense to plea to the second degree offense but receive a sentence consistent with a third degree crime.  Under those circumstances, the presumption of imprisonment
remains intact.  Moreover, the presumption of incarceration will not be satisfied with a probationary term that contains a condition requiring the defendant to spend a period of time in the county jail.