                                NOT FOR PUBLICATION WITHOUT THE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.
_________________________

STATE OF NEW JERSEY,

          Plaintiff-Appellant/
          Cross-Respondent,

v.

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

government."


                                                                        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


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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.




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