Robber to be resentenced because judge forgot to ask a question

A state appeals court has ordered a new sentencing hearing for a convicted robber, who was not asked to speak before receiving a 12-year term.

The ruling also allows Timothy Rigoli to argue for consideration of a new mitigating factor recently approved by the state Legislature.

The new factor allows a sentencing judge to consider whether a defendant was under 26 years old at the time of his crime.

Rigoli, now 28, was 22 when he allegedly committed 10 armed robberies of businesses in Vineland and Millville in October 2015.

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The Millville man pleaded guilty to four of the charges and was ordered to serve concurrent 12-year terms for each. Prior to Tuesday's ruling, his parole eligibility date was in February 2026.

The appeals court rejected Rigoli's argument that the mitigating factor should be applied retroactively to his case.

But it said Rigoli could argue for the factor's consideration if an "independent error" required his resentencing.

That error occurred when the Superior Court Judge Robert Malestein did not ask a required question prior to sentencing Rigoli — whether the defendant wished to "make a statement … and to present any information in mitigation of punishment."

The two-judge panel noted Rigoli, prior to being sentenced, briefly interrupted Malestein and his attorney to ask to speak. A transcript of the session did not make clear whether he was heard, it added.

Malestein later asked, "Anybody else need to be heard on the Rigoli matter before I proceed?"

There was no response.

But the decision noted Malestein was required to address Rigoli personally about his desire to speak before sentencing.

Because that did not happen, the appeals court ordered a new sentencing hearing.

The decision also directed the sentencing judge to consider Rigoli's ability to pay his victims before determining the amount of his restitution, which was previously set at almost $1,350.

Jim Walsh covers public safety, economic development and other beats for the Courier-Post, Burlington County Times and The Daily Journal.

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This article originally appeared on Vineland Daily Journal: Timothy Rigoli can ask judge to consider his age as a mitigating factor