What Happens when You are Charged with a Second Degree Indictable Offense in New Jersey?

Second degree crimes in New Jersey are reserved for serious offenses, which carry thousands of dollars in fines, long stints in prison of 5 to 10 years, and no early release if your crime is considered violent.

Second Degree Indictable Offense Meaning and Implications in NJHow do Second Degree Crimes Fit into the NJ Criminal Charging Structure?

In the New Jersey criminal system, offenses are categorized not as felonies and misdemeanors but as indictable, disorderly persons, and petty disorderly persons crimes.  Indictable offenses are classified as felonies in most other states and include manslaughter, burglary, and possessing CDS with intent to distribute.  They have levels from first through fourth degree. Disorderly persons crimes are what other states call misdemeanors, such as simple assault, shoplifting, and writing bad checks. Petty disorderly crimes are minor offenses such as trespassing and disorderly conduct. With that background information, it is important to understand that being charged with a second degree indictable offense means you are facing the second-most severe level of crime that can be charged in the state of New Jersey. The only degree above second in terms of severity is a first degree indictable offense.

Common Examples of Second Degree Offenses in NJ

  • Sexual Assault: Sexual contact with someone under 13 years of age and you are over 17 years old, committing sexual penetration when using physical force; the victim is under your control, such as a student, the victim is between 16 and 18 years of age and is related to you, or the victim is 13-16 years old, and you are at least four years older.
  • Robbery: You use force or violence to obtain articles or money that are not yours.  This is similar to theft but is a violent crime.
  • Unlawful Possession of a Handgun: Possessing a firearm that qualifies as a handgun without a valid permit from the state of New Jersey. This can apply to unlawfully having a handgun without a permit or having a handgun on your person without a permit to carry.
  • Drug Distribution– Distribution of more than 100 dosages of prescription medications, or between 0.5 to 5 ounces of heroin or cocaine is a second degree offense.  It includes carrying drugs with the intention of distributing them, carrying drugs from a safe house to the point of sale, or selling directly to drug buyers.  You can be charged with this offense if you are found to have a digital scale, a list of dealers or purchasers, and packaging paraphernalia such as baggies.

What You Face if Convicted of a 2nd Degree Felony in NJ

Most second degree crimes carry a five to ten year sentence and a fine of up to $150,000.  The fine amount may be more regarding drug offenses, and financial restitution may be ordered in some instances. Although it appears that the sentencing structure is rigid, a judge does have leeway to adjust sentencing.  For example, if the crime had mitigating circumstances, such as a spontaneous act causing little physical damage to the victim, and it was the defendant’s first offense, a sentence of five years may be given.  The penalty may be closer to the ten-year maximum if the defendant has a criminal record and committed a more violent crime. Other examples of mitigating circumstances are unusual circumstances; the defendant shows remorse, extensive abusive or violent family history, substance addiction, and the defendant played a minor role in the crime and harmed no one.

Presumption of Imprisonment for Second Degree Indictable Offenses

A presumption for incarceration means that it is assumed that if you are convicted, you will go to jail.  Presumptive jail terms are usually handed down in first- and second-degree crime cases. The mitigating circumstances listed above may lessen a defendant’s sentence.  When there is a case of presumption for incarceration, the pendulum may swing the other way, as well through aggravating factors.  There are many possible aggravating factors.  Some of them include the degree of violence of the crime, the risk that another crime will be committed, a violent crime was committed against an elderly victim; the defendant committed a violent offense against a law enforcement officer to act as a deterrent from reoffending, and the extent of the defendant’s prior criminal record. If you are charged with a second degree crime, there is usually a presumption of jail time, and many have a required minimum you have to serve before parole eligibility.

PTI, also known as Pre-trial Intervention, is usually unavailable for second degree offenders. There is not generally a hard and fast list of crimes that make you ineligible for the program, but it is doubtful your application will be accepted without help from an experienced criminal defense attorney who knows what can be done to get you approved for the program. You can petition the prosecutor with a statement explaining why you should be considered for the program, and create a package of reasons supporting your application, character letters, references, and other evidence of your good standing in the community. They will look at your situation’s mitigating and aggravating circumstances and whenever you are seeking PTI for a second degree offense, having an attorney representing your case is a must.

Second Degree Indictable Criminal Offenses May Carry Special Sentencing Requirements in New Jersey

There are two sentencing mandates applied frequently in New Jersey criminal courts in serious cases. The first is the No Early Release Act NERA  (N.J.S.A. 2C:43-7.2) which requires that an offender complete 85% of their sentence before becoming eligible for parole.  Crimes that fall under this statute are violent ones.  Some examples include causing a drug-induced death, s0me aggravated assault crimes, carjacking, kidnapping, murder, vehicular homicide, robbery, and sexual assault, among others.

Facing a 2nd Degree Crime in NJ, What are my Options? The Graves Act encompasses weapons-related crimes.  Some of the crimes governed by the Graves Act are possession of a firearm for an unlawful purpose, possessing a gun in the course of dealing a CDS, and illegal possession of a firearm, among others. This act provides a presumption of incarceration for no less than 42 months.  What gives the statute even more teeth is additional drug charges related to the weapons offense, which will be given consecutively rather than concurrently.

Presumption of Detention in 2nd Degree Criminal Cases

A recent bill was passed in New Jersey (No. 2426) which establishes a “rebuttable presumption” that a defendant charged with a firearm-related crime can be detained before their trial. This bill also states that pretrial detention is applicable for someone charged with a first or second degree crime with an 85% mandatory minimum.  The defense’s demonstration of proof can refute a rebuttable presumption through a preponderance of the evidence.

What Court Handles Second Degree Indictable Offense Cases in NJ?

Second Degree criminal offenses are considered Superior Court cases. In fact, first through fourth degree cases are handled through the Superior Court in the county where you were charged. Indictable offenses must go to a grand jury for an indictment before a criminal trial can occur. In a select few cases, a fourth degree crime will be downgraded and remanded to the lower court.

Don’t Face an NJ Second Degree Indictable Offense on Your Own

Are you facing second degree indictable offenses charges in New Jersey? Are you aware of the seriousness of your situation?  The potential penalties of a second degree crime can be severe, up to ten years.  These are life-changing consequences that could devastate you and your loved ones. Contact our NJ attorneys to begin to mount your defense. You should take advantage of this moment to get ahead of the legal process and start protecting your rights.  Our criminal defense lawyers have defended hundreds of clients and we will work to have your charges dismissed or lessened, but we are always ready to go to trial if necessary. If you have been arrested, call (201)-330-4979 today for a free consultation.


If you’ve been charged with a criminal offense, disorderly persons offense, or traffic / DWI violation, you have the right to an attorney who will defend you against your charges and fight for your best interests. To learn more about how your attorney can fight to have your charges dismissed or reduced, click a link below to see our video library of legal defenses and strategies.