NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-2098-17T3 A-2098-17T3
STATE OF NEW JERSEY,
Plaintiff-Appellant/ Cross-Respondent,
v.
EMIL F. HANNA,
Defendant-Respondent/ Cross-Appellant. _________________________
EMAD E. NAGUIB,
Defendant-Respondent/ Cross-Appellant. _________________________
Argued January 6, 2020 – Decided February 25, 2020 Before Judges Rothstadt, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-10- 1603.
Brian Dennis Gillet, Special Deputy Attorney General/Acting Deputy First Assistant Prosecutor, argued the cause for appellant/cross-respondent (Christopher L.C. Kuberiet, Acting Middlesex County Prosecutor, attorney; Brian Dennis Gillet, of counsel and on the brief).
Timothy John Dey argued the cause for respondents/cross-appellants.
PER CURIAM
The State appeals the sentences imposed after defendants Emil F. Hanna
and Emad E. Naguib were both convicted by jury in a joint trial of second-degree
official misconduct, N.J.S.A. 2C:30-2(b).1 We consolidate these appeals,
calendared back-to-back, for the purpose of a single opinion; as defendants
1 These matters were previously before us on an excessive sentence oral argument calendar. We vacated defendants' sentences and remanded to the sentencing judge for imposition of the five-year mandatory period of parole ineligibility required by N.J.S.A. 2C:43-6.5(b); and denied defendants' cross- appeals challenging the imposed sentences as excessive. State v. Hanna, No. A- 2098-17 and State v. Naguib, No. A-2100-17. Defendants appealed from those decisions. The Supreme Court granted certification and summarily remanded the matters to us "for placement on the plenary calendar, including briefing by the parties." State v. Hanna, 239 N.J. 420 (2019); State v. Naguib, 239 N.J. 384 (2019). A-2098-17T3 2 observed in their respective merits briefs, "for all intents and purposes [they]
have identical cases." The State contends, in its sole argument:
THE SENTENCING JUDGE FAILED TO IMPOSE THE MANDATORY PAROLE DISQUALIFIER REQUIRED BY N.J.S.A. 2C:43-6.5[(b)] AND FAILED TO APPLY THE PROPER STANDARD IN MAKING THAT DECISION.
Defendants each cross-appeal from the sentences imposed—five-year
prison terms with two years of parole ineligibility—both arguing:
POINT ONE
DEFENDANTS' SENTENCE MUST BE UPHELD: APPELLATE COURT CANNOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE TRIAL COURT: TRIAL COURT'S FACTFINDING VIS A VIS DEFENDANTS' CHARACTER AND THE NEED TO DETER ARE SUBJECT TO GREAT DEFERENCE.
POINT TWO
THE CHARACTER OF DEFENDANTS HANNA AND NAGUIB WERE FACTUAL DETERMINATIONS OF THE TRIAL COURT AND SENTENCING COURT. THE AGGRAVATING- MITIGATING FACTORS DOVETAIL THEREIN AND DO NOT STAND IN A VACUUM.
POINT THREE
THE FINDING OF DEFENDANTS' CHARACTER CLEARLY OUTWEIGHED THE NEED TO DETER. LAW PROVIDES TRIAL JUDGES WITH UNQUESTIONABLE AUTHORITY TO FIND
A-2098-17T3 3 CHARACTER OUTWEIGHS MERE "GENERAL DETERRENCE."
We reverse and remand because the full, five-year mandatory period of
incarceration under N.J.S.A. 2C:43-6.5(b) should have been imposed.
Defendants' merits briefs advance arguments against the State's position.
Neither defendant, however, advanced any argument challenging the sentences
imposed. As such we deem their respective cross-appeal claims abandoned, see
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (holding any
claim that has not been briefed is deemed abandoned on appeal), but we consider
defendants' arguments opposing the State's claim.
We set forth the facts of this case in our previous decision reversing the
trial judge's grant of defendants' motions for judgment of acquittal.2 Hanna, slip
op. at 15 (App. Div. Feb. 9, 2016). We note all parties' merits briefs extensively
quote those facts that we discerned from the record. We will not repeat them
here except as germane to the issues before us.
2 Defendants made motions for judgment of acquittal after the State rested and after the defense rested, R. 3:18-1; the trial judge reserved on both motions. State v. Hanna, Nos. A-4618-12, A-4894-12 (App. Div. Feb. 9, 2016) (slip op. at 5-6). Defendants also moved for judgement of acquittal after the return of the verdict, R. 3:18-2. Id. at 6. Prior to sentencing, the trial judge granted defendants' motions for judgment of acquittal which, although not specified in the trial judge's order, we considered made under Rule 3:18-2. Ibid. A-2098-17T3 4 Defendants worked for the New Brunswick Parking Authority (NBPA),
a municipal agency offering parking within the city of New Brunswick. The NBPA is supervised by the New Jersey Department of Community Affairs. Emil Hanna, a security sergeant and Emad Naguib, a security guard, were both employees of the NBPA. Both defendants patrolled numerous parking decks and garages under the NBPA's control, assisted cashiers at entrances and exits, assisted patrons with payment, and oversaw security and safety operations for patrons and their property.
[Id. at 2.]
One of the methods parking-deck patrons could utilize when exiting was
the "pay-in-lane" method whereby a ticket—obtained from a "ticket spitter"
when entering the deck—would be fed into a self-pay machine, and the patrons
would be required to pay with cash or credit card. Id. at 2-3. A summary of the
transaction would be printed on the ticket that was retained in the machine. Id.
at 3. If payment was bypassed for any reason, the ticket would be stamped
"void," ibid., and the exit gate would have to be raised by using a swipe card,
id. at 3-4.
An investigation prompted by reports of malfunctioning pay-in-lane
machines revealed machines that were "filled with tickets marked 'void.'" Id. at
4. Further investigation disclosed
A-2098-17T3 5 that certain employees, including defendants, were involved in a scheme to defraud the NBPA. The scheme operated as follows: after regular hours, when booth attendants were not present, patrons entered the garages and took a ticket from the "ticket spitter." When patrons sought to leave the parking garage, the security guards would assist at the exits. If the deck patrons made a cash payment, the security guards would take the cash, insert the patron's ticket into the pay-in-lane machine, and use their employee badge to raise the parking deck gate to allow the patron to leave. The tickets were then inserted into pay machines as "void." Those participating in the scheme would keep the money that the patrons assumed they were paying to the NBPA.
[Id. at 4-5.]
During defendants' trial, other NBPA security guards testified about their
involvement in the scheme and that of both defendants. Id. at 5. The jury
acquitted defendants of all charges except second-degree official misconduct, as
charged in count two, "for not reporting the thefts committed by other
employees."3 Id. at 6.
3 Defendants were both charged under Indictment No. 10-10-1603 with second- degree official misconduct – official function – benefit, N.J.S.A. 2C:30-2(a) (count one); second-degree official misconduct – non-perform duties, N.J.S.A. 2C:30-2(b) (count two); third-degree theft by unlawful taking, N.J.S.A. 2C:20- 3 (count three); third-degree failure to make lawful disposition, N.J.S.A. 2C:20- 9 (count four); second-degree computer crime – access purpose defraud/steal, N.J.S.A. 2C:20-25(c) (count five); second-degree conspiracy – computer crime, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-25 (count six); third-degree misapplication
A-2098-17T3 6 By the time we reversed the trial judge's grant of the motions for judgment
of acquittal and remanded the matter for sentencing, and the Supreme Court
denied defendants' petitions for certification, 4 the trial judge had retired and a
different judge (the sentencing judge) sentenced defendants "in the [third-]
degree range to the custody of the Commissioner of the Department of
Corrections for a term of five . . . years with a two . . . year period of parole
ineligibility." Defendants were ordered to "forfeit public employment" and were
"barred from holding public employment in the future" pursuant to N.J.S.A.
2C:51-2 to -5.
Our review of the judge's sentencing decision is narrow, governed by an
abuse of discretion standard. See State v. Blackmon, 202 N.J. 283, 297 (2010).
We will affirm a sentence unless
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the
of entrusted property, N.J.S.A. 2C:21-15 (count seven); two counts of second- degree bribery, N.J.S.A. 2C:27-2(c) and N.J.S.A. 2C:27-2(d) (counts eight and nine); second-degree offer/confer of unlawful benefit to public servant, N.J.S.A. 2C:27-11(a) (count eleven); second-degree pattern of official misconduct, N.J.S.A. 2C:30-7(a) and N.J.S.A. 2C:30-2(a) (count twelve); and third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25(a) (count thirteen). Hanna was additionally charged with second-degree leader of organized crime, N.J.S.A. 2C:5-2(g) (count fourteen) and second-degree theft by extortion, N.J.S.A. 2C:20-5 (count fifteen). 4 State v. Hanna, 228 N.J. 268 (2016); State v. Naguib, 228 N.J. 253 (2016). A-2098-17T3 7 sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
We will likewise affirm if the sentencing judge balances the appropriate and
applicable aggravating and mitigating factors, and such factors are supported by
sufficient credible evidence in the record. See State v. Carey, 168 N.J. 413, 430
(2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). We do not second-
guess such assessments so long as they are based on the appropriate guidelines.
Roth, 95 N.J. at 365. We review the imposed sentences under those standards.
I.
At the sentencing hearing, the judge largely rejected the State's assertion
that aggravating factors one, two, three, four, nine, ten and eleven, N.J.S.A.
2C:44-1(a)(1), (2), (3), (4), (9), (10) and (11), applied to both defendants, and
that aggravating factor six, N.J.S.A. 2C:44-1(a)(6), applied to Naguib. The
judge found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter
defendants "and others from violating the law"), and added that aggravating
factor eleven, N.J.S.A. 2C:44-1(a)(11) ("[t]he imposition of a fine, penalty or
A-2098-17T3 8 order of restitution, without also imposing a term of imprisonment would be
perceived . . . as part of the cost of doing business," or expense related to "the
initial decision to resort to unlawful practices"), "may apply," although the judge
stated he would not "give it any kind of substantial weight." The sentencing
judge found mitigating factors two, seven, eight and nine, N.J.S.A. 2C:44-
1(b)(2), (7), (8) and (9), "[a]nd the mitigating factors clear and convincing
evidence substantially exceed the mitigating factors in this case (sic), but the
[c]ourt will grant the application to be sentenced one degree lower pursuant to
[N.J.S.A.] 2C:43-6.5(c)(2)."5
In an amplification issued after the State appealed, R. 2:5-1(b), the
sentencing judge reviewed each proposed sentencing factor and concluded
"mitigating factors [one, two, seven, eight and nine were] applicable in this
case," and only aggravating factor nine applied. The judge reversed his prior
finding of aggravating factor eleven "because it is the court's intention to impose
5 N.J.S.A. 2C:44-1(f)(2), provides:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted. A-2098-17T3 9 a term of imprisonment with a period of parole ineligibility," so he found that
aggravating factor inapplicable. Despite that determination, and the judge's
finding that application of aggravating factor four "raise[d] the specter of
double-counting," the judge added, "[t]he court will give very slight weight to
aggravating factors [four] and [eleven]." He then, inexplicably concluded
"aggravating factor [nine] is the only aggravating factor in this case." (Emphasis
added).
The State argues the sentencing judge erred in failing to find aggravating
factors four and ten. N.J.S.A. 2C:44-1(a)(4) requires a sentencing judge to
consider whether "[a] lesser sentence will depreciate the seriousness of the
defendant's offense because it involved a breach of the public trust under
chapters 27 and 30, or the defendant took advantage of a position of trust or
confidence to commit the offense." The judge must also consider whether "[t]he
offense involved fraudulent or deceptive practices committed against any
department or division of State government," under N.J.S.A. 2C:44-1(a)(10).
The sentencing judge explained that application of aggravating factor four
raised the prohibited practice of double-counting because the underlying
conviction for official misconduct "inherently involves a breach of trust.
Moreover, the court's sentence in this matter involving as it does a significant
A-2098-17T3 10 period of parole ineligibility does not 'depreciate' the seriousness of the offense.
Imprisonment, particularly with a period of parole ineligibility, is a significant,
impactful and life[-]altering experience."
Similarly, the judge found application of aggravating factor ten "would
constitute 'double[-]counting'" because the crime of official misconduct
"involves action taken against a government entity." The judge also found that
factor inapplicable because the NBPA was "an arm of [the] City of New
Brunswick, a local entity," and not "a division or department of State
government."
We do not agree with the sentencing judge's conclusion that consideration
of aggravating factor four would constitute double-counting. Prohibited
"double-counting" occurs when a sentencing judge considers one of the required
elements of the offense charged as an aggravating factor. See State v. Yarbough,
100 N.J. 627, 633 (1985) (finding facts incorporated by the Legislature into a
criminal statute "as part of the original grading of the offense" are not to be
weighed as aggravating and mitigating factors). As our Supreme Court observed
in State v. Kromphold, 162 N.J. 345, 353 (2000):
In [Yarbough, 100 N.J. at 633], we recognized that facts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that
A-2098-17T3 11 sentence. We reasoned that the Legislature had already considered the elements of an offense in the gradation of a crime. Ibid. If we held otherwise, every offense arguably would implicate aggravating factors merely by its commission, thereby eroding the basis for the gradation of offenses and the distinction between elements and aggravating circumstances. In the same manner, double-counting of elements of the offenses as aggravating factors would be likely to interfere with the Code's dedication to uniformity in sentencing.
We recognized the
three elements required to establish a violation of N.J.S.A. 2C:30-2[(b)] are that "(1) the defendant was a public servant; (2) the defendant knowingly refrained from performing a duty which is imposed upon him or her by law or which is clearly inherent in the nature of the office; and (3) the defendant's purpose in so refraining was to benefit himself or herself or to injure or deprive another of a benefit."
[State v. Kueny, 411 N.J. Super. 392, 404 (App. Div. 2010) (quoting State v. Thompson, 402 N.J. Super. 177, 195-96 (App. Div. 2008)).]
Aggravating factor four requires a sentencing judge to balance the gravity
of conduct involving a breach of the public trust in every chapter 30 conviction
against the length of a reduced sentence. It does not directly implicate the three
elements of official misconduct so as to constitute double-counting. Rather, the
task is akin to considering whether injuries sustained by a victim of a violent
crime exceed those required to establish an element of the crime. See, e.g., State
A-2098-17T3 12 v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992) ("The extent of the injuries,
which exceed the statutory minimum for the offense, may be considered as
aggravating.").
We cannot, however, conclude the judge abused his discretion in
balancing defendant's conduct against the sentence and finding aggravating
factor four inapplicable. The judge considered the length of the five-year
sentence and the period of parole ineligibility in assessing whether a lesser
sentence would "'depreciate' the seriousness" of each defendant's offense
because it involved official misconduct, a chapter 30 offense. To that end, the
judge considered the role each defendant played in the scheme, noting—in his
mitigating-factor findings—defendants were found not guilty of theft and were
found guilty of official misconduct because of their failure to report thefts by
their coworkers.
As noted, the sentencing judge also found application of aggravating
factor ten "would constitute 'double[-]counting'" because the crime of official
misconduct "involves action taken against a government entity." The judge also
found that factor inapplicable because the NBPA was "an arm of [the] City of
New Brunswick, a local entity," and not "a division or department of State
A-2098-17T3 13 The assistant prosecutor, when asked by the judge at the sentencing
hearing how the application of factor ten was "not double-counting," replied, "I
think -- it might be double[-]counting, [j]udge, but I think it's an aggravating
factor that I think is present." The colloquy continued:
THE COURT: Well, if it's double[-]counting, I can't take it under consideration.
[ASSISTANT PROSECUTOR]: Well, I mean, the weight you give it is of course up to Your Honor.
THE COURT: Well, no. It --
[ASSISTANT PROSECUTOR]: But it is a factor.
THE COURT: The Appellate Division has said if it's inherent in the actual charge -- official misconduct means you've messed around in your government position -- then number [ten] can't apply because it's double[-]counting because it involves messing up against the government.
[ASSISTANT PROSECUTOR]: I'll give you that.
The State's concession during sentencing effectively forecloses its contrary
argument on appeal. Ji v. Palmer, 333 N.J. Super. 451, 459 (App. Div. 2000).
Nonetheless, because we agree with the judge's conclusion that factor ten
is inapplicable because the illegal activity was not committed against a State
department or division, we need not determine whether its application
constituted double-counting. Although the NBPA is supervised by the New
A-2098-17T3 14 Jersey Department of Community Affairs, as we recognized in our prior decision
in this matter, it is a municipal agency. Hanna, slip op. at 2 (App. Div. Feb. 9,
2016).
We thus find no error in the sentencing judge's finding that aggravating
factors four and ten were inapplicable.
II.
The State also contends the sentencing judge erred in reducing the period
of parole ineligibility to two years instead of adhering to N.J.S.A. 2C:43-6.5(a)
that provides, in relevant part:
[A] person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is convicted of a crime that involves or touches such office or employment . . . shall be sentenced to a mandatory minimum term of imprisonment without eligibility for parole as follows . . . for a crime of the second degree, five years[.]
[(Emphasis added).]
That mandatory minimum term may be waived or reduced "[i]f the court finds
by clear and convincing evidence that extraordinary circumstances exist such
that imposition of a mandatory minimum term would be a serious injustice
which overrides the need to deter such conduct in others[.]" N.J.S.A. 2C:43 -
A-2098-17T3 15 6.5(c)(2). If the mandatory minimum is reduced or waived, the sentencing judge
"must state with specificity its reasons" for so doing. N.J.S.A. 2C:43-6.5(c)(2).
Although "[t]he decision to waive or reduce the mandatory minimum may
be made even in the absence of a downgrade" under N.J.S.A. 2C:44-1(f)(2),
State v. Rice, 425 N.J. Super. 375, 389 (App. Div. 2012), "N.J.S.A. 2C:43-
6.5(c)(2) imposes a 'higher standard' on the judge when deciding to reduce a
period of parole ineligibility than when deciding to downgrade an offense," id.
at 388. That "higher standard" allows a reduction or waiver
only in "the extraordinary or extremely unusual case where the human cost of imprisoning a defendant [for the statutory mandatory minimum and] for the sake of deterrence constitutes a serious injustice." See [State v. Evers, 175 N.J. 355, 392 (2003)]. The judge may consider the circumstance of the case and the defendant's role in the commission of the crime. See id. at 394. But, the critical focus, as with N.J.S.A. 2C:44-1(d), is whether the "extraordinary circumstances" presented by an individual defendant outweigh the legislative determination that the need to deter others from committing certain crimes "involv[ing] or touch[ing] . . . [public] office or employment" requires imposition of the statutory mandatory minimum. N.J.S.A. 2C:43-6.5(a) and (c)(2).
[Rice, 425 N.J. Super. at 389 (first, third, fourth and fifth alterations in original).]
The "guideposts" for deciding these "extraordinary or extremely unusual"
cases were announced by the Court in Evers:
A-2098-17T3 16 In deciding whether the "character and condition" of a defendant meets the "serious injustice" standard, a trial court should determine whether there is clear and convincing evidence that there are relevant mitigating factors present to an extraordinary degree and, if so, whether cumulatively, they so greatly exceed any aggravating factors that imprisonment would constitute a serious injustice overriding the need for deterrence. We do not suggest that every mitigating factor will bear the same relevance and weight in assessing the character and condition of the defendant; it is the quality of the factor or factors and their uniqueness in the particular setting that matters.
[175 N.J. at 393-94.]
Additionally, the Court instructed that the quality of the cumulative
"extraordinary mitigating factors . . . must be weighed in deciding whether the
'serious injustice' standard has been met." Id. at 395. So too, the sentencing
judge "must look at the gravity of the offense with respect to the peculiar facts
of a case to determine how paramount deterrence will be in the equation." Ibid.
The sentencing judge found extraordinary circumstances warranted a
reduction in the mandatory minimum term: both defendants "were found not
guilty of engaging in any affirmative wrongdoing" including theft; their
conviction "was premised on their failure . . . to disclose" other employees '
wrongdoing; "[n]o serious harm actually occurred or [could] be attributed to
. . . defendants"; they received "[n]o personal benefit"; only aggravating factor
A-2098-17T3 17 nine applied; they had "no substantial criminal record"; and their recidivism risk
was "de minimis." The judge thus concluded clear and convincing evidence
proved "the character and condition of defendants are so idiosyncratic and
present extraordinary circumstances of the type that justifies the application of
N.J.S.A. 2C:4[3]-6.5(c)(2)."
The judge's conclusion misapprehended the "serious injustice" standard.
As the Evers Court observed, the "serious injustice" standard is extremely
narrow and not readily overcome. Id. at 391-92. The Evers Court recognized
that only one case, to that point, satisfied the high standard: State v. Jarbath.6
Id. at 389. The rarity of the cases that meet the standard was illustrated by the
idiosyncratic nature of the defendant in Jarbath—described by the Court as a
"twenty-one year old woman who has also been diagnosed as psychotic," with
an intellectual disability, who pleaded guilty to second-degree manslaughter
after killing her nineteen-day-old son—and her circumstances:
Defendant's deficient mental and emotional condition were relevant not only to her culpability but also to her capacity to assimilate punishment. Both courts found that the crime was unintentional. There was little evidence to suggest that defendant could comprehend that she had committed a crime that deserved a prison term, or that she could modify her behavior based on her imprisonment. In addition, defendant did not have
6 114 N.J. 394 (1989). A-2098-17T3 18 the understanding or emotional strength of relatively normal persons. She apparently could not endure life in prison without unusual suffering, that is, hardship and privation greatly exceeding that which would be accepted and endured by ordinary inmates as the inevitable consequences of punishment. In sum, as determined by the Appellate Division, the "serious injustice" of imprisonment under these circumstances clearly outweighs the needs of general deterrence.
[114 N.J. at 398, 408-09.]
Since Jarbath, few cases have met the standard. See State v. E.R., 273 N.J.
Super. 262, 273-74 (App. Div. 1994) (finding "serious injustice" where the
defendant was bedridden with AIDS and incarceration would not serve a
purpose). But see State v. Jabbour, 118 N.J. 1, 4, 8-9 (1990) (finding that the
"serious injustice" standard was not met where the defendant was characterized
"as a sad, sorry, weak individual in need of psychiatric attention").
The "extraordinary circumstances" found by the sentencing judge do not
support the reduced mandatory minimum term. As the Evers Court held, a
defendant's status as a first-time offender, "family man," "breadwinner," and esteemed member of the community, however commendable and worthy of consideration in deciding the length of his term of incarceration, is not so extraordinary as to alter the conclusion that his imprisonment would not constitute a serious injustice overriding the need for deterrence.
[175 N.J. at 400.]
A-2098-17T3 19 Thus, the factors found by the sentencing judge, related to the crime and
defendants' character, evidenced by the numerous letters lauding defendants as
respected members of the community, are not so extraordinary as to warrant a
departure from the presumption of mandatory minimum. Defendants have not
met the heavy burden necessary to satisfy the "serious injustice standard." See
id. at 394-95.
We conclude with our observation that the sentencing judge's finding that
"[t]he [o]fficial [m]isconduct statute applies to this case because the City of New
Brunswick assumed a function that is not traditionally thought of as a
government function—providing parking spaces" and that "[t]raditional
government functions were not implicated in this case" had no role in
determining whether the mandatory minimum term should have been waived.
The jury found the State proved the elements of the crime of official misconduct,
including that defendants were public servants who knowingly refrained from
reporting thefts from a public authority. Judges do not decide the functions in
which a government may engage. If a public servant "knowingly refrain[s] from
performing a duty which is imposed upon him or her by law or which is clearly
inherent in the nature of the office," and that governmental function is deprived
of a benefit, such as parking fees, Kueny, 411 N.J. Super. at 404, judges must
A-2098-17T3 20 acknowledge such conduct constitutes official misconduct, particularly when
that finding is made by a jury.
We also look askance at the sentencing judge's finding that "but for the
timing of the trial judge's decision to effectively acquit them, [defendants] would
be facing absolutely no penal consequences." The judge's comment disregards
the true facts of the case—the motion granted by the trial judge was made after
the return of the verdict and was appealable by the State, R. 2:3-1(b)(3), and
deprecates our reversal of the trial judge's grant of that motion. The motion, or
the timing of the motion, should not have been considered in determining the
mandatory-minimum reduction.
We, therefore, remand these matters for the imposition of the five-year
period of parole ineligibility required by N.J.S.A. 2C:43-6.5(b). We note the
judgments of conviction were not amended after the sentencing judge issued the
amplification in which he clarified defendants' sentences were not downgraded
for purposes of sentencing. The judgments erroneously provide the sentences
imposed were "in the [third-]degree range[.]" That error should be corrected
when new judgments are prepared.
Reversed and remanded. We do not retain jurisdiction.
A-2098-17T3 21