STATE OF NEW JERSEY v. BRIAN RICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3777-09T4

STATE OF NEW JERSEY,

Plaintiff-Appellant/

Cross-Respondent,

v.

BRIAN RICE,

Defendant-Respondent/

Cross-Appellant.

____________________________________________________

April 16, 2012

 

Submitted January 10, 2012 - Decided

 

Before Judges Messano, Yannotti and Espinosa.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-03-0716.

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant/cross-respondent (Lucille M. Rosano, Special Deputy Attorney General/Assistant Prosecutor, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, attorney for respondent/cross-appellant (Michele A. Adubato, Designated Counsel, on the brief).

 

The opinion of the court was delivered by

 

MESSANO, P.J.A.D.

Following a jury trial, defendant Brian Rice, an Irvington police officer, was convicted of second-degree conspiracy to commit official misconduct, N.J.S.A. 2C:5-2 and 2C:30-2 (count one); second-degree official misconduct, N.J.S.A. 2C:30-2 (count two); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count three).1 The judge merged count one into count two, sentenced defendant as a third-degree offender pursuant to N.J.S.A. 2C:44-1(f)(2), and imposed a custodial sentence of three years with a three-year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6.5(a). The judge sentenced defendant to a concurrent nine-month term on count three.

The State filed an appeal of the sentence, and defendant sought leave to file his cross-appeal as within time, which we administratively granted. The State raises the following point on appeal:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED DEFENDANT ONE DEGREE LOWER PURSUANT TO N.J.S.A. 2C:44-1(f)(2)

 

Defendant raises the following points in his cross-appeal:

 

POINT I

 

THE REFERENCES TO STATEMENTS PROVIDED TO THE INTERNAL AFFAIRS DEPARTMENT BY THE PARTIES INVOLVED IN THE INCIDENT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION. (Not raised below)

 

POINT II

 

THE TRIAL COURT'S INSTRUCTIONS TO THE JURY WAS [SIC] INSUFFICIENT AND INADEQUATE AND DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised below)

 

A. FAILURE TO CHARGE REGARDING THE PROPER EVALUATION OF DEFENDANT'S ORAL STATEMENTS

 

B. FAILURE TO GIVE A LIMITING INSTRUCTION REGARDING UNCHARGED CRIMINAL CONDUCT

 

C. FAILURE TO ADEQUATELY INSTRUCT THE JURY ON THE CHARGE OF OFFICIAL MISCONDUCT

 

POINT III

 

THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH DEFENDANT'S CONVICTIONS FOR CONSPIRACY AND OFFICIAL MISCONDUCT[] BEYOND A REASONABLE DOUBT2

 

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's convictions for official misconduct and tampering with physical evidence, reverse his conviction for conspiracy and remand the matter to the trial judge for further consideration of the sentence imposed.

 

I.

We first consider the arguments raised by defendant in his cross-appeal.

Defendant was indicted along with fellow police officer Brandis Puryear. Regarding the testimony at trial, we quote at length from our earlier opinion disposing of Puryear's appeal. State v. Puryear, No. A-2778-09 (App. Div. Aug. 17, 2010), certif. denied, 205 N.J. 81 (2011).

[A]t approximately 1:00 a.m. on November 17, 2009, [Puryear] was working off-duty, but in uniform, as a security guard at a Pathmark store in Irvington. At approximately the same time, [defendant] entered the Pathmark in plainclothes to make a purchase and Juwann Shabazz also entered the store to use the automated teller machine. Shabazz recognized [Puryear] from an encounter earlier in the day when she directed him and a few of his friends who were in front of a liquor store to disperse. Shabazz approached [Puryear] to talk, and "to make sure that everything was good between" them.

As Shabazz was talking to [Puryear], he noticed a man at a nearby cash register, later identified as [defendant], looking in his direction. Shabazz asked him, "What is the problem[?] [C]an I help you[?] . . . [W]ho are you?" [Defendant] responded, "You don't want no problems with me." [Puryear] told Shabazz, "Yeah, you don't want no problems with him." [Defendant] approached Shabazz, and "put[] his hand in [his] face" in a fist-like motion with his index finger extended. Shabazz asked him to remove his hand, and [defendant] replied, "If you knock my hand down from your face, then I'm going to hit you." When Shabazz removed [defendant's] hand, [defendant] punched him on "the right side of [his] face." Shabazz fell to the ground, hit his head on the concrete, and the two tussled. [Puryear] and others in the store eventually broke up the fight. Shabazz narrated the events as they unfolded while the jury viewed a video of the incident.

 

[Puryear] radioed a "Signal 5" for backup assistance. Testimony revealed this was a code used by the police department to report a general disturbance, such as a fight or argument. Shortly thereafter, [Puryear] again used her radio to alert dispatch that the incident had been brought under control.

 

Less than five minutes after defendant's first call for assistance, Lieutenant Dwayne Mitchell arrived on the scene. He observed [Puryear] and [defendant] standing outside the Pathmark. Shabazz was yelling: "He assaulted me. I'm pursuing this to the fullest. I'm pressing charges . . . . I didn't know he was a cop." Mitchell testified that he did not detect alcohol on Shabazz' breath, and Shabazz did not appear intoxicated. Mitchell asked [defendant and Puryear] whether Shabazz was under arrest, and [defendant] responded, "No, it was a verbal[,]" signifying that no physical assault had occurred. [Puryear] did not respond, though Mitchell noted this was not unusual since [defendant] outranked [Puryear] and police protocol required him to answer the question.

Mitchell interviewed Shabazz at the scene and informed him that he could file a complaint. Mitchell again approached both [defendant and Puryear], and noticed that [defendant] was nursing a bloody hand "with some tissue." After informing both officers that Shabazz intended to file a complaint, Mitchell asked them, "Are you sure nothing happened?" [Defendant] responded, "I'm the senior officer on the scene and I'm saying it's a verbal. It is what it is and he got to do what he got to do."

Shabazz initially went to the police station to make a report but was transported to the hospital before he could do so. Approximately thirty-five to forty-five minutes after he first responded on the scene, Mitchell returned to the Pathmark. Outside [defendant's] presence, he told [Puryear] that Shabazz was filing a complaint, explained that an assault could occur without anyone being struck, and asked [Puryear] whether an assault had occurred; she told Mitchell no assault took place. Mitchell asked [Puryear] again, "Are you sure nothing happened? She said, I called it back a verbal; that's how I called it back." Shabazz filed a complaint with Internal Affairs the next morning.

 

Dennis Garner, a security officer employed by Pathmark, monitored the store surveillance cameras on November 17. The security office contained a daily tape recorder that permitted the operator to randomly view various parts of the store. Four additional stationery cameras recorded specific areas of the store on VHS videotape. Through the cameras, Garner saw [defendant] make a purchase and also saw [Puryear] having a "verbal altercation" with Shabazz. When Garner saw [Puryear] signal Shabazz to step back with her hand, he left the security office and went into the store to monitor the situation more closely.

He described the conversation between [Puryear] and Shabazz as "kind of heated[,] [but] [i]t was nothing that she couldn't handle at the time." He noticed [defendant] and [Puryear] conversing, and then saw [defendant] talking to Shabazz. At first, the conversation was inaudible, but then Garner heard [defendant] say, "Here it comes, here it comes[,]" and punch Shabazz in the face. A brief struggle ensued before [Puryear] and others separated the two men.

After other officers arrived on the scene, Garner returned to the security booth to view the tapes and write an incident report. Both [defendant and Puryear] entered the booth. Garner said "it's normal for them to come in to review a tape if the person is on duty." Garner knew [defendant] because [defendant] was once employed as an off-duty Pathmark security guard and Garner did not think it was unusual for [defendant] to also come to the booth. Garner was able to isolate the videotape from one of the stationary cameras that captured the events.

 

Both defendants watched the tape with him. [Defendant] then asked, "what happens if the tapes would disappear[?]" Garner did not answer. Garner wrapped all the tapes in an elastic band and left them on his desk. He left the room to respond to a call from the store's night manager. On his way out, he observed [defendant] put the tapes under his jacket. [Puryear] was already out of the office and walking ahead of Garner.

. . . .

 

Detective Sergeant Amanda Koontz of Internal Affairs, who investigated Shabazz' complaint, testified . . . before the jury. Koontz went to Pathmark to secure any videotapes from the night of the incident. None existed, though there were tapes present for days both before and after that date. She then contacted the security manager at Pathmark headquarters in Carteret. Koontz was able to secure a "digital tape" that recorded events live and retained them at corporate headquarters on compact discs. That video was the version of events played for the jury.

 

The State rested after Koontz' testimony. The judge granted [Puryear's] motion for acquittal only as to the official misconduct count. [Puryear] elected not to testify, but [defendant] did.

He overheard Shabazz and [Puryear] having what appeared to be a cordial conversation. Then, Shabazz directed his attention towards [defendant], saying "what [are you] looking at[?]" and telling him to "mind [his] business . . . ." Shabazz appeared to be intoxicated, his speech was slurred, and [defendant] detected alcohol on his breath. [Defendant] pointed his finger at Shabazz, and motioned for him to continue his conversation with [Puryear]. Shabazz responded, "Don't point at me and don't put your hand in my face." When Shabazz reached over as if to touch [defendant's] hand, [Puryear] stepped in between them. Shabazz stepped backwards, and fell; [defendant] denied punching him. [Defendant] walked out of the store, and retrieved tissues from his car to blow his nose.

[Defendant] met [Puryear] outside of the store, and they discussed the incident. He had a conversation with Mitchell, told him that "[i]t was a verbal" incident, that Shabazz was drunk, and that the matter was resolved. Then, Garner informed [defendant] that the incident was likely captured on the security footage, and Garner and the defendants went to the security office. [Defendant] testified that Garner could not recover any tape showing the incident, and he and [Puryear] left the room. [Defendant] denied taking any videotapes.

 

[Id. (slip op. at 3-10) (footnote omitted).]

 

As noted, based upon this evidence, the jury convicted defendant of all charges, acquitted Puryear of tampering and convicted her of conspiracy to commit official misconduct. We reversed Puryear's conviction on appeal, concluding "there was insufficient proof adduced before the jury that [Puryear] conspired with [defendant] to commit the crime of official misconduct." Id. (slip op. at 21).

II.

During Koontz's direct examination, the following occurred:

Prosecutor: Explain a little bit about what you did in the course of this investigation.

 

Koontz: Initially, when I received the complaint, I found out what officers were on the scene, the location of the alleged assault.

 

Once I found that information out, Mr. Shabazz responded to Internal Affairs to file a citizen complaint.

 

Once Mr. Shabazz filed a citizen complaint, a statement was taken. And at that point, all of the officers that were involved were questioned, statements were taken regarding the incident. Everyone was questioned. Statements were given with the exception of Officer Brian Rice.

 

For the first time defendant claims this testimony amounted to commentary on the invocation of his Fifth Amendment right against self-incrimination. We disagree.

"A trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). "However, if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2). "Our state law privilege [against self-incrimination] does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." State v. Muhammad, 182 N.J. 551, 569 (2005) (citing State v. Deatore, 70 N.J. 100, 108-09 (1976)).

In response to a general question regarding her investigation of Shabazz's complaint, Koontz briefly mentioned that she took statements from "the officers that were involved," but not from defendant. She did not elaborate or explain. This single comment was not "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see also State v. Burns, 192 N.J. 312, 341 (2007).

III.

We turn to defendant's arguments regarding the jury charge. Once again, no objection was made at trial. We therefore review these contentions under the plain error standard. See R. 2:10-2.

As applied to a jury charge, "plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Burns, supra, 192 N.J. at 341 (first alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assesed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006).

While an erroneous jury charge may be a "poor candidate[] for rehabilitation under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)) (internal quotation marks omitted), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised here was actually of no moment[,]" State v. White, 326 N.J. Super.304, 315 (App. Div. 1999), certif. denied, 163 N.J.397 (2000), and creates a "presum[ption] that the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.), certif. denied, 177 N.J.572 (2003).

A.

Defendant claims that the trial judge failed to give the jury a Hampton instruction concerning defendant's oral statements which were "critical to the State's case."3 We find no plain error in the failure to give the charge.

In Hampton, supra, 61 N.J.at 272, the Court held that when a defendant's confession is admitted in evidence, a jury "shall be instructed that they should decide whether . . . the defendant's confession is true[,]" and if they conclude that it is "not true, then they must . . . disregard it for purposes of discharging their function as fact finders." See alsoN.J.R.E.104(c) ("If the judge admits the statement the jury shall not be informed of the finding that the statement is admissible but shall be instructed to disregard the statement if it finds that it is not credible."). A trial court should provide a Hamptoncharge "whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence" regardless of "[w]hether [the charge is] requested or not." Jordan, supra, 147 N.J.at 425. However, the failure to provide a Hamptoncharge is not "reversible error perse." Ibid. Rather, a reviewing court will only reverse if the "omission is 'clearly capable of producing an unjust result.'" Ibid.(quoting R.2:10-2).

In this case, the judge gave a comprehensive charge regarding witness credibility. Defendant testified to facts that challenged the credibility of Garner's version of the encounter in the security booth, and he adamantly denied removing the videotapes. Defendant's statement to Mitchell -- that the incident with Shabazz was only a verbal altercation -- was consistent with his testimony at trial and consistent with Mitchell's testimony regarding Puryear's subsequent statement. The jury clearly understood that it was required to determine whether the statements were actually made by defendant. Although the judge should have provided the requisite charge, his failure to do so, under the particular facts of this case and given the lack of any request, does not require reversal.

B.

Defendant next claims that evidence of his alleged assault on Shabazz required a limiting instruction to ensure that the jury used the information properly and did not convict him for assault, rather than the offenses charged. Again, we find no plain error in the judge's failure to provide a specific instruction.

Defendant does not argue that the evidence was inadmissible under N.J.R.E. 404(b). However, the Court has said that after the admission of such evidence, the judge should clearly instruct the jury on the prohibited and permitted uses for which it may consider the evidence and repeat the instructions at the conclusion of the case. State v. Blakney, 189 N.J. 88, 92-93 (2006).

The State argues that evidence of the assault was not subject to N.J.R.E. 404(b) because the rule "does not apply to uncharged acts of misconduct that are components of the crime that is the subject of the trial." State v. Long, 173 N.J. 138, 161 (2002) (citation and internal quotation marks omitted). Our jurisprudence recognizes the distinction between uncharged bad acts that are intrinsic to the commission of the charged crime requiring no 404(b) analysis or charge, and evidence of uncharged bad acts admitted to prove, for example, intent or motive, requiring a 404(b) analysis and charge. See Rose, supra, 206 N.J. at 177-78.

But the analysis adopted by the Court in Rose serves to limit what evidence may be considered "intrinsic." In Rose, supra, 206 N.J. at 180, the Court adopted the test enunciated in United States v. Green, 617 F.3d 233 (3d Cir. 2010). "[E]vidence is intrinsic if it 'directly proves' the charged offense[,]" or "if [the uncharged acts] facilitate the commission of the charged crime. . . . [A]ll else must be analyzed under Rule 404(b)." Ibid. (quoting Green, supra, 617 F. 3d at 248-49) (internal quotation mark omitted). Rose was decided after the trial in this case, and the Court explicitly stated its holding would be applied prospectively. Id. at 181.

At the time this case was tried, the attorneys and the judge operated under existing precedent and considered evidence of the assault upon Shabazz to be an integral strand in the fabric of the case, not evidence of an uncharged bad act. Long, supra, 173 N.J. at 161. There was no objection to the admission of the evidence at trial, no request that it be analyzed under N.J.R.E. 404(b) and no request for a limiting instruction.

In summation, the prosecutor clearly focused the jury's attention on the conduct for which defendant was charged. In other words, the jury understood that defendant's "official misconduct" was not the assault, but rather, the theft of the videotapes that might have provided incriminating evidence of the assault. Under the specific facts presented, we find no plain error in failing to provide a limiting instruction.

C.

Defendant also claims that the jury instructions concerning the elements of official misconduct were erroneous because they did not identify the act which the prosecution alleged was misconduct. The judge provided the following charge:

Defendant Rice is charged with tampering with evidence. The State alleges that this offense constitutes the basis for the charge of official misconduct. You must consider each charge separately based on the evidence produced in support of that charge.4

 

[(Emphasis added).]

 

The judge thereafter generally followed the Model Jury instructions on official misconduct and tampering with evidence. In so doing, he specifically identified the act of removing the security tapes as the basis of the official misconduct charge. Defendant's contention that the charge was "deficient in informing the jury specifically what needed to be proven . . . for a conviction of . . . official misconduct" is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

 

IV.

Defendant unsuccessfully moved before the trial judge for a judgment of acquittal or, in the alternative, for a new trial, as to the conspiracy and official misconduct counts in the indictment. Before us, he argues that there was "insufficient evidence to prove conspiracy to commit official misconduct" and, since he acted solely as a private citizen and not a police officer, a necessary element of official misconduct was not proven.

We conduct our review of the denial of defendant's motion for acquittal de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:

[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[State v. Reyes, 50 N.J. 454, 459 (1967).]

 

A motion for a new trial is subject to the discretion of the trial judge. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Therefore, on appeal,

Our scope of review is limited to a determination of "whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record." Moreover, we will "give deference to the trial judge's feel for the case since he presided over [it] . . . and had the opportunity to observe and hear the witnesses as they testified."

 

[State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004) (alterations in original) (quoting Russo, supra, 333 N.J. Super. at 140).]

 

The trial judge s ruling on a motion for a new trial based upon insufficient evidence "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

We agree with defendant's contention that the evidence was insufficient to convict him of conspiracy. As we summarized the relevant law in our prior opinion:

"[T]he agreement to commit a specific crime is at the heart of a conspiracy charge." State v. Samuels, 189 N.J. 236, 245 (2007). "It is the agreement that is pivotal." Id. at 246 (citation omitted).

 

. . . .

 

However, "[t]here must be intentional participation with the purpose of furthering the goal of committing the crime." Cannel, New Jersey Criminal Code Annotated, comment 5 on N.J.S.A. 2C:5-2 (2010). Thus, the essential elements of conspiracy must be evaluated in terms of the underlying offense. Samuels, supra, 189 N.J. at 246. "[M]ere knowledge, acquiescence, or approval of the substantive offense, without an agreement to cooperate is not enough to establish one as a participant in a conspiracy." State v. Abrams, 256 N.J. Super. 390, 401 (App. Div.) (citation omitted), certif. denied, 130 N.J. 395 (1992).

 

[Puryear, supra, (slip op. at 13-14).]

 

We noted "the proof was insufficient to allow a reasonable juror to find beyond a reasonable doubt that [Puryear] agreed with [defendant] that one of them would steal the tapes." Id. at 17.

Since the State's contention was that defendant conspired with Puryear to steal the videotapes, and the evidence was insufficient to establish Puryear's agreement in this regard, defendant's motion for a judgment of acquittal should have been granted. See Abrams, supra, 256 N.J. Super. at 401-02 (reversing the defendant's conviction of conspiracy to commit murder when the evidence was insufficient to demonstrate his co-conspirator's agreement).

Defendant's further contention that the evidence was insufficient to find him guilty beyond a reasonable doubt of official misconduct lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add the following brief comments.

To prove defendant's guilt on this charge, the State was required to prove that: "(1) the defendant [was] a public servant, (2) who committed an act relating to his office, (3) with purpose to benefit himself or deprive another of a benefit." State v. Bullock, 136 N.J. 149, 153 (1994). N.J.S.A. 2C:27-1(g) defines public servants to include police officers, and police officers remain public servants whether they are on-duty, off-duty or even suspended. Bullock, supra, 136 N.J. at 153-54.

With regard to the second element, "when law-enforcement officers commit an act of malfeasance because of the office they hold or because of the opportunity afforded by that office, their conduct sufficiently relates to their office." Id. at 157. Here, based upon Garner's testimony, the jury could conclude defendant was provided access to the tapes because he was an off-duty police officer who had previously worked in the store. Lastly, the evidence supported a finding that defendant sought a benefit by taking the tapes, potential evidence of his assault upon Shabazz. There was sufficient evidence regarding the third element of the crime of official misconduct.

We reverse defendant's conviction for conspiracy and affirm his conviction for official misconduct.

V.

The State argues that the judge erred by sentencing defendant as a third-degree offender pursuant to N.J.S.A. 2C:44-1(f)(2). That statute provides that when a defendant is convicted of a first- or second-degree crime, and "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." Ibid. (emphasis added).

The State further argues that the judge mistakenly exercised his discretion by imposing a three-year period of parole ineligibility because a five-year period of parole ineligibility was mandatory pursuant to N.J.S.A. 2C:43-6.5(a). That statute provides:

[E]xcept as otherwise provided in subsection c. of this section, a person who serves . . . 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 as set forth in subsection b. of this section, 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 . . . .

 

[Ibid.]

 

Official misconduct is a crime listed in subsection (b). N.J.S.A. 2C:43-6.5(b)(17). Therefore, the State contends the appropriate sentence should have been, at a minimum, five years' imprisonment with a five-year period of parole ineligibility.

However, N.J.S.A. 2C:43-6.5(c)(2) provides that "[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, the court may waive or reduce the mandatory minimum term of imprisonment required." (Emphasis added). "In making any such finding, the court must state with specificity its reasons for waiving or reducing the mandatory minimum sentence that would otherwise apply." Ibid.

At sentencing, defendant requested that the judge not impose any period of parole ineligibility pursuant to N.J.S.A. 2C:43-6.5(c)(2). The judge found aggravating factors three (the risk defendant would commit another offense); four ("[a] lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust"); nine (the need to deter); and ten ("[t]he offense involved fraudulent or deceptive practices committed against any department or division of State government"). See N.J.S.A. 2C:44-1(a)(3), (4), (9) and (10). The judge also found mitigating factors seven (lack of prior record); and eight (defendant's conduct was the result of circumstances unlikely to recur). See N.J.S.A. 2C:44-1(b)(7) and (8). On the judgment of conviction, the judge listed mitigating factor "[fourteen]" -- "the reasons expressed on the record." Although our sentencing statute lists only thirteen mitigating factors, we have recognized the court's ability to use non-statutory mitigating factors in imposing a sentence. See State v. Ross, 335 N.J. Super. 536, 543 (App. Div. 2000), certif. denied, 167 N.J. 637 (2001). We presume the judge was referencing statements he made at the time of sentencing regarding defendant's character and the high regard in which he was held by the community and his co-workers, as evidenced by numerous letters sent to the court.5

The State initially contends that mitigating factors seven and eight were not supported by the record. As to factor seven, the State argues that since 2000 and before the charges in this case, defendant had been arrested for aggravated assault and terroristic threats. After the events for which he was indicted, defendant was charged with aggravated assault as a bias crime. No convictions resulted.

Adult arrests that do not result in convictions may be "relevant to the character of the sentence . . . imposed." See State v. Tanksley, 245 N.J. Super. 390, 397 (App. Div. 1991). A sentencing court, therefore, does not abuse its discretion by refusing to find mitigating factor seven based upon on charges that did not result in convictions. State v. Torres, 313 N.J. Super. 129, 162 (App. Div.), certif. denied, 156 N.J. 425 (1998). However, the State has cited no reported decision holding the converse, i.e., that the judge may not find mitigating factor seven because of arrests not resulting in convictions. The judge did not mistakenly find mitigating factor seven.

Mitigating factors eight and nine, N.J.S.A. 2C:44-1(b)(8) and (9), relate to aggravating factor three. State v. Towey, 244 N.J. Super. 582, 593 (App. Div.) certif. denied, 122 N.J. 159 (1990). The judge expressly determined that aggravating factor three applied because defendant did "not tell[] the truth" when testifying before the jury, lacked any remorse and took no responsibility for his actions. However, he did not place "great weight on the aggravating factor." The judge rejected mitigating factor nine for the same reasons. See State v. O'Donnell, 117 N.J. 210, 216-17 (1989) (mitigating factor nine did not apply when the defendant police officer lacked any remorse over the beating of a suspect).

As to mitigating factor eight, the judge reasoned the circumstances were unlikely to reoccur because defendant was "not [going to] be a police officer anymore, so he's not [going to] have the opportunity to do what he did." In his weighing process, the judge stated, "I place great weight on the fact that the results will never happen again. The circumstances are just not happening any more. I give that great weight." The State contends there was no support for mitigating factor eight simply because defendant was required to forfeit his position as a police officer. In State v. Lake, 408 N.J. Super. 313, 329 (App. Div. 2009), without regard to a specific mitigating factor, we said it was of "no significance . . . that [the] defendant was required to forfeit his public office" because forfeiture was "a statutory consequence of his criminal conduct that was imposed upon him." However, our comment in Lake was made in the context of consideration of the "interest of justice" standard contained in N.J.S.A. 2C:44-1(f)(2). We cannot conclude that the judge erred in finding mitigating factor eight.

We also conclude that the judge did not mistakenly exercise his discretion in weighing the sentencing factors and concluding that the "mitigating factors substantially outweigh[ed] the aggravating factors." He gave "great weight" to mitigating factor eight and "paramount weight, crushing weight, overwhelming weight to [defendant's] record of service as evidenced in the letters" he received. The judge noted defendant's "bravery[,] . . . heroism and his reliability and assisting other officers."

We turn then to the crux of the State's appeal. After weighing the sentencing factors, referring to N.J.S.A. 2C:43-6.5(c)(2) and "the full wrath of th[at] law" which required a minimum sentence of "[five] with a [five]," the judge stated:

The mitigating factors . . . not only bring it down to the third[-]degree range, but go further. Those letters . . . which [I] received [are] the clear evidence that leads me to believe -- clear and convincing that -- it would be a serious [in]justice that outweighs the need to deter conduct from others.

 

The judge continued by stating he had "already made the finding under [N.J.S.A.]2C:43-6," and he was "clearly convinced that the mitigating factors substantially outweigh[ed] the aggravating factors and the interest[s] of justice demand that [defendant] be sentenced one degree lower than the second[-]degree crime for which he was convicted." He sentenced defendant to three years with a three-year period of parole ineligibility.

The downgrade provisions of N.J.S.A. 2C:44-1(f)(2) have been extensively construed and interpreted by case law. However, no reported case has construed N.J.S.A. 2C:43-6.5(c)(2) since its enactment in 2007. See L. 2007, c. 49, 10. We conclude the exercise of the court's sentencing discretion under the two statutes is guided by different standards. Because the judge essentially concluded the two statutes imposed the same standard, we are compelled to remand the matter for reconsideration of defendant's sentence.

Under N.J.S.A. 2C:44-1(f)(2), when the court considers imposing a sentence one degree lower than the crime for which a defendant has been convicted, it must apply a two-step process. The judge "must be clearly convinced that the mitigating factors substantially outweigh the aggravating ones and that the interest of justice demands a downgraded sentence." State v. L.V., 410 N.J. Super. 90, 109 (App. Div. 2009) (quoting State v. Megargel, 143 N.J. 484, 496 (1996)) (internal quotation marks omitted), certif. denied, 201 N.J. 156 (2010). "[T]he standard governing downgrading is high." Megargel, supra, 143 N.J. at 500.

The Megargel Court identified several factors for the sentencing court to consider, including: "the degree of the crime [which] is the focus of the sentence"; whether "[t]he surrounding circumstances of an offense may make it very similar to a lower degree offense"; and "facts personal to the defendant," including his "role in the incident." Id. at 500-01. "The reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Id. at 505. "[I]n those cases in which the Legislature has acted to provide an enhanced penalty for conviction of a particular offense, the downgrade of that offense requires more compelling reasons than the downgrade of an offense for which the Legislature has not attached an enhanced penalty." Id. at 502.

"[B]ecause the focus remains on the offense and not the offender, the surrounding circumstances used as compelling reasons for a downgrade should arise from within the context of the offense itself." Lake, supra, 408 N.J. Super. at 326 (emphasis added) (citing Megargel, 143 N.J. at 500-01). For example in L.V., supra, 410 N.J. Super. at 93, we held that the sentencing judge erred in refusing to sentence defendant, who pled guilty to second-degree aggravated assault and second-degree manslaughter of her two newborn children, as a third-degree offender. In particular, we noted that "[t]he circumstances surrounding [the defendant's] behavior were extreme and severe," because "[s]he had been raped by her father repeatedly for years, causing impairment of her judgment and decision-making ability." Id. at 112 (emphasis added).

Conversely, on the State's appeal in Lake, supra, 408 N.J. Super. at 330, we reversed the judge's decision to impose a third-degree sentence on the defendant convicted of second-degree official misconduct. We noted that in justifying the downgrade, the trial judge relied upon "circumstances such as a defendant's overall character or contributions to the community [which] should not be considered under the interest of justice prong in the determination of whether or not to downgrade a sentence pursuant to N.J.S.A. 2C:44-1f(2)." Id. at 328. Furthermore, in Lake, supra, 408 N.J. Super. at 330 n.1, we noted that N.J.S.A. 2C:43-6.5 imposed "enhanced punishment" for the crime of official misconduct, although we did not consider that factor because of "ex post facto implications."

In enacting N.J.S.A. 2C:43-6.5(c)(2), the Legislature adopted a standard different than the "interest of justice" utilized in the downgrade provisions of the Code. Instead, in order to "waive or reduce" the mandatory minimums required, the judge must find "extraordinary circumstances . . . such that imposition of a mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others." Ibid. (emphasis added).

The Megargel Court considered the different standards -- "interest of justice" versus "serious injustice." Discussing N.J.S.A. 2C:44-1(d), which permits the court to waive the presumption of imprisonment for a first- or second-degree offender when "having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others[,]" the Court noted:

The "serious injustice" standard found in N.J.S.A. 2C:44-1(d) is not the same as the "in the interest of justice" standard found in section 44-1f(2). First, the language of the two statutes is different. In N.J.S.A. 2C:44-1(d) the "character and condition of the defendant" are specifically to be considered. In section 44-1f(2), there is no reference to the defendant's character or condition. Second, the two statutes address two qualitatively different situations. N.J.S.A. 2C:44-1(d) governs imprisonment versus nonimprisonment, a more serious condition, while section 2C:44-1f(2) governs whether or not a defendant convicted of a crime should be sentenced as if convicted of a crime one degree lower.

 

[Megargel, supra, 143 N.J. at 499.]

 

Referencing its decision in State v. Hodge, 95 N.J. 369, 376 (1984), the Court concluded, "since the Code requires a high standard even for downgrading, it must have contemplated an even higher standard to give confidence to the 'in or out' decision." Megargel, supra, 143 N.J. at 499-500. "[B]ecause the 'serious injustice' standard requires 'truly extraordinary and unanticipated circumstances' to exist to overcome the presumption of imprisonment, a somewhat lower standard should apply to the decision to downgrade a defendant's sentence." Id. at 501.

In State v. Evers, 175 N.J. 355, 389 (2003) (citing Megargel, supra, 143 N.J. at 498-502), the Court said that although "[t]he downgrading of an offense is not a prerequisite to finding that the presumption of imprisonment for a first- or second-degree conviction has been overcome[,]" "the reasons offered to dispel the presumption of imprisonment must be even more compelling than those that might warrant downgrading an offense." See also Lake, supra, 408 N.J. Super. at 327 (noting that "the [Megargel] Court held that the compelling reasons required to satisfy the interest of justice for a downgrade under N.J.S.A. 2C:44-1f(2) present a 'somewhat lower standard' than the 'truly extraordinary and unanticipated circumstances' required before a 'serious injustice' may be found under N.J.S.A. 2C:44-1d") (quoting Megargel, supra, 143 N.J. at 501).

The Evers Court further noted that even though N.J.S.A. 2C:44-1(d) permitted consideration of "the character and condition of the defendant," words omitted by the Legislature in enacting N.J.S.A. 2C:43-6.5(c)(2), in "only one case to date, [State v. Jarbath, 114 N.J. 394 (1989)], has this Court had occasion to hold that the 'serious injustice' standard was satisfied." Evers, supra, 175 N.J. at 389.6 The Court then gave "trial courts guideposts for determining the extraordinary or extremely unusual case where the human cost of imprisoning a defendant for the sake of deterrence constitutes a serious injustice." Id. at 392.

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.

 

[Id. at 393-94.]

 

"In determining the role that deterrence should play in the serious injustice standard," the court must look to the statutory scheme, i.e., the presumption of imprisonment for first and second degree crimes, the circumstances of the case and the defendant's role in the commission of the crime. Id. at 394.

 

It is the quality of the extraordinary mitigating factors taken together that must be weighed in deciding whether the "serious injustice" standard has been met. The trial court also 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.

 

[Id. at 395.]

 

We distill, therefore, by analogy that 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. A decision to "waiv[e] or reduc[e] the mandatory minimum sentence that would otherwise apply" affects the actual period of imprisonment a defendant must serve before being eligible for parole. Ibid. It is more akin to the "in or out" decision made under N.J.S.A. 2C:44-1(d) than it is to deciding whether a downgrade is appropriate. The Legislature chose to use the same "serious injustice" standard in adopting N.J.S.A. 2C:43-6.5(c)(2), and we presume the Legislature to have been aware of the Court's decision in Megargel announced more than a decade before the statute was enacted. See Chapland, supra, 187 N.J. at 291 (stating that "the Legislature is presumed to be aware of the judicial construction placed on an enactment").

N.J.S.A. 2C:43-6.5 was adopted as part of a comprehensive legislative scheme that also significantly impacted the pension rights of public employees convicted of crimes and amended the forfeiture provisions of N.J.S.A. 2C:51-2. See L. 2007, c. 49, 1 to 10. The purpose of the law was clearly to impose significant penalties upon those public employees convicted of a crime "that involves or touches" such employment. N.J.S.A. 2C:43-6.5; see also Lake, supra, 408 N.J. Super. at 330 n.1.

Although the Legislature failed to use the words "character and condition of the defendant" when it adopted N.J.S.A. 2C:43-6.5(c)(2), we conclude it nevertheless intended that the sentencing court must engage in a similar analysis to that required by N.J.S.A. 2C:44-1(d). In other words, before waiving or reducing a mandatory minimum imposed by the statute, a judge must determine "by clear and convincing evidence" that "extraordinary circumstances exist" based upon the individual defendant before the court, and the "imposition of [the statutory] mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others." N.J.S.A. 2C:43-6.5(c)(2). Additionally, "the court must state with specificity its reasons for waiving or reducing the mandatory minimum sentence that would otherwise apply." Ibid.

The decision to waive or reduce the mandatory minimum may be made even in the absence of a downgrade. See Evers, supra, 175 N.J. at 389. However, the decision to waive or reduce the mandatory minimum is justified 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 id. at 392. 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).

The decision to downgrade requires application of a different calculus. As we have already noted, the downgrade determination requires a lesser threshold. Evers, supra, 175 N.J. at 388-89; Lake, supra, 408 N.J. Super. at 327. Nonetheless, "because the focus remains on the offense and not the offender, the surrounding circumstances used as compelling reasons for a downgrade should arise from within the context of the offense itself." Lake, supra, 408 N.J. Super. at 326. And, most significantly, "[a] trial court should also state why sentencing the defendant to the lowest range of sentencing for the particular offense for which he was convicted, is not a more appropriate sentence than a downgraded sentence under section 44-1f(2)." Megargel, supra, 143 N.J. at 502.

In light of our discussion and enunciation of the different standards applicable to the sentencing schemes contained in the two statutes, we are not satisfied from the existing record that the judge clearly expressed his consideration of the distinctions between the two. Paramount in our decision to remand is the fact that N.J.S.A. 2C:43-6-5.2(c)(2) has not been the subject of a reported decision heretofore, and defendant in this case did not file opposition to the State's appeal. We therefore conclude that it is appropriate to remand the matter to the sentencing judge, who also sat on the trial, and permit the parties to fully argue the issues presented in light of the standards we have now expressed.

We remand the matter to the trial judge for reconsideration of the sentence imposed on the official misconduct conviction, and for entry of an amended judgment of conviction reflecting that the tampering conviction was a fourth-degree crime, and entering a judgment of acquittal as to the conspiracy conviction. We do not retain jurisdiction.

1 The indictment and judgment of conviction mistakenly indicated that the tampering charge was a third-degree offense. See N.J.S.A. 2C:28-6 (making tampering with physical evidence a fourth-degree crime).

2 Defendant did not file a brief in opposition to the State's appeal.

3 State v. Hampton, 61 N.J. 250, 271-72 (1972). Defendant fails to identify the oral statements that required a special instruction. We presume the focus to be his question to Garner, "[W]hat happens if the tapes would disappear[?]," and his statement to Mitchell that the incident was strictly a verbal altercation.

4 We correct a misstatement made in dicta in our prior opinion on Puryear's appeal, wherein we stated in a footnote that the judge "did not tell the jury what specific conduct by Rice was the subject of the [misconduct] charge." Puryear, supra, (slip op. at 17 n.6).

5 These are part of the appellate record.

6 The Evers court referenced our opinion in State v. E.R., 273 N.J. Super. 262 (App. Div. 1994), as the only other example of a reported case in which the standard was met. Evers, supra, 175 N.J. at 390.