Presenting Factors in Your Favor to Reduce Sentencing
After a defendant is convicted of a crime, his sentence is often still not cast in stone. Unless the court has made a sentencing commitment as part of a plea bargain, the defendant’s sentence could range anywhere from a sentence that does not involve jail – or a mandatory minimum if there is one – up to the statutory maximum. That is particularly the case after the defendant is convicted at trial, or in federal court where judges do not take part in plea negotiations and there is rarely an agreement that a defendant received a certain sentence.
A factor or evidence that supports an argument for a lower sentence is referred to as a mitigating factor. Conversely, factors presented by the prosecution when seeking a higher sentence are referred to as aggravating factors. Mitigating factors can include evidence regarding the defendant’s age, family life, and socio-economic status; his remorse for committing the crime; the lack of a prior criminal conduct; having made restitution; and having taken steps to improve his or her life. In cases that involve a drug conviction, the defendant’s dependence on drugs can also be a mitigating factor, especially when the defendant has taken steps to get help with the addiction. Additionally, the presence of mitigating factors may convince the court to treat an eligible young person as a youthful offender, thus removing the stigma of a criminal conviction, and limiting the time they may face in jail.
Some of the factors that may be presented as aggravating factors include the age of the victim and the circumstance of the crime, the motive for the crime, and the criminal record of the defendant, to name a few. Obviously a defendant with a lengthy criminal record, particularly involving recent offenses, would be treated differently than someone who has never been in trouble or who has not been involved in the criminal justice system in many years. In a DWI, a defendant’s blood alcohol content can also act as an aggravating factor, especially if it is multiple times the legal limit.
Under New York law, a judge may not impose a sentence for a felony unless a pre-sentence report has been completed on the defendant. Although not required for misdemeanors, pre-sentence reports are required for certain sentences. A pre-sentence report can contain both mitigating and aggravating factors related to the defendant. A presentence report prepared by the probation department, however, is not a substitute for presentence memorandum submitted by the defense. Too often, defendants and attorneys view securing a favorable plea as the end of the process; there is a great deal of advocacy, however, which can and should go into affecting the sentence the judge is considering. Even when a sentence has been agreed upon, the defendant’s sentencing memorandum and the record of sentencing can positively affect the defendant’s prison placement, his eligibility for programming in prison, his consideration for release by a parole board and his notification level if he is required to register as a sex offender.
Contact an Experienced Criminal Defense Attorney
If you have been arrested, you need an experienced criminal defense attorney who can help you fight the charges against you and advocate on your behalf throughout your entire case, including at sentencing if you are convicted. Contact experienced Syracuse criminal defense attorney George F. Hildebrandt for a consultation.