                                NOT FOR PUBLICATION WITHOUT THE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 NO. A-0441-18T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

JOHN A. DAVEY,

     Defendant-Respondent.
_________________________

                    Submitted November 7, 2019 – Decided November 19, 2019

                    Before Judges Mayer and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 17-11-3156.

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for appellant (Frank J. Ducoat,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

                    Lorraine S. Gauli-Rufo, attorney for respondent.

PER CURIAM
      The State appeals from a September 21, 2018 judgment of conviction

directing defendant to serve a five-year probationary sentence on an amended

third-degree official misconduct offense, N.J.S.A. 2C:30-2A.         That same

judgment provided for defendant to serve a five-year probationary term for

third-degree theft, N.J.S.A. 2C:20-3A.1 Defendant was ordered to serve his

probationary sentences concurrently.       The State challenges the official

misconduct sentence, arguing defendant was not entitled to a waiver of the

mandatory parole ineligibility period set forth in N.J.S.A. 2C:43-6.5(a). We

affirm defendant's convictions but remand this matter for resentencing on the

official misconduct sentence only.

      On appeal, the State raises the following arguments:

      Point I:

      The sentencing court erred by granting defendant's motion to
      waive the mandatory parole ineligibility period required by
      N.J.S.A. 2C:43-6.5[(a)], and sentencing defendant to
      probation.

            A.    The High Bar Imposed by N.J.S.A. 2C:43-
                  6.5[(c)] for waiver.

            B.    Defendant Falls Short of Clearing that High
                  Hurdle.


1
   The State does not appeal defendant's sentence on the third-degree theft
charge.
                                                                        A-0441-18T1
                                       2
                  i. Sentencing Factors.

                       Aggravating Factor (3)
                       Aggravating Factor (4)
                       Aggravating Factor (11)
                       Mitigating Factor (7)
                       Mitigating Factor (8)
                       Mitigating Factor (10)
                       Mitigating Factor (11)

                  ii. The Need to Deter.

                  iii. Applicable Standard.

      We review a judge's sentencing decision under an abuse of discretion

standard. State v. Fuentes, 217 N.J. 57, 70 (2014). "[A]ppellate courts are

cautioned not to substitute their judgment for those of our sentencing courts."

State v. Case, 220 N.J. 49, 65 (2014). (citations omitted).

      As directed by the Fuentes Court, we must determine whether:

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            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."

            [217 N.J. at 70 (alteration in original) (quoting State v.
            Roth, 95 N.J. 334, 364-65 (1984).]

      Trial judges have broad sentencing discretion if the sentence is based on

competent credible evidence and fits within the statutory framework. State v.

                                                                         A-0441-18T1
                                        3
Dalziel, 182 N.J. 494, 500 (2005). When sentencing a defendant, judges "first

must identify any relevant aggravating and mitigating factors set forth in

N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49,

64 (2014) (citing State v. Blackmon, 202 N.J. 283, 297 (2010)).

      Guided by these principles, we are satisfied the aggravating and mitigating

factors found by the sentencing judge were based on competent and reasonably

credible evidence in the record. The State's argument to the contrary lacks merit

and requires no further discussion. R. 2:11-3(e)(2). Accordingly, we limit our

comments to whether the sentencing judge erred in granting defendant a waiver

of the parole ineligibility period set forth in N.J.S.A. 2C:43-6.5(a).

      Defendant's conviction for an amended third-degree official misconduct

offense arises from his forgery of New Jersey Transit tickets and then selling

the forged tickets to NJT customers. In his guilty plea to the amended official

misconduct charge, he admitted receiving a benefit or depriving another of a

benefit valued at $200 or less.     In exchange for his guilty plea, the State

recommended that defendant be sentenced to a four-year prison term with a two-

year period of parole eligibility on the amended official misconduct charge. The

State also indicated a willingness to dismiss the remaining counts of the

indictment once defendant was sentenced.


                                                                         A-0441-18T1
                                        4
      Ordinarily, there is a presumption against imprisonment for third-degree

offenses where a defendant has no prior criminal history. However, no such

presumption exists where a defendant is convicted of third-degree official

misconduct.

      N.J.S.A. 2C:43-6.5(a) 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 third degree,
              two years . . . . As used in this subsection, "a crime that
              involves or touches such office or employment" means
              that the crime was related directly to the person's
              performance in, or circumstances flowing from, the
              specific public office or employment held by the
              person.

              [Ibid. (emphasis added).]

      Notwithstanding the language set forth in N.J.S.A. 2C:43-6.5(a), the

official misconduct statute provides a mechanism for a judge to waive the mandatory

minimum term of imprisonment as follows:

              If 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 by subsection

                                                                            A-0441-18T1
                                          5
             a. of this section. 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.

             [N.J.S.A. 2C:43-6.5(c)(2).]

      When applying the "serious injustice" standard referenced in N.J.S.A. 2C:43-

6.5(c)(2), a trial court should determine "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." State v. Rice, 425 N.J. Super. 375, 389 (App. Div. 2012) (alterations in

original) (quoting N.J.S.A. 2C:43-6.5(a) and (c)(2)). A waiver will be "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.'" Ibid. (alteration in original) (quoting State v. Evers,

175 N.J. 355, 392 (2003)).

      In considering whether to waive or reduce a mandatory term under N.J.S.A.

2C:43-6.5(a), a court should engage in an analysis similar to the one required by

N.J.S.A. 2C:44-1(d), which allows the court to waive a mandatory term for a first-

or second-degree offender if it finds that in light of defendant's "character and

condition," imprisonment would result in a serious injustice overriding the need of

                                                                                 A-0441-18T1
                                            6
general deterrence. Rice, 425 N.J. Super. at 386-87. The "serious injustice" standard

contained in both statutes requires a showing of extraordinary and unanticipated

circumstances. Id. at 386. "[T]he reasons offered to dispel the presumption of

imprisonment must be even more compelling than those that might warrant

downgrading an offense." Evers, 175 N.J. at 389 (citation omitted).

      In Evers, Justice Albin provided guidance to trial judges on addressing the so-

called idiosyncratic defendant. In assessing whether a defendant's "character and

condition" satisfy the "serious injustice" standard under N.J.S.A. 2C:44-1(d), the

Court advised that "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." Id. at 393-94. The Court warned that "it is the quality of

the factor or factors and their uniqueness in the particular setting that matters." Id.

at 394. The Evers Court also noted "demands for deterrence are strengthened in

direct proportion to the gravity and harm[ful]ness of the offense and the

deliberateness of the offender." Id. at 394 (alteration in original) (quoting State v.

Megargel, 143 N.J. 484, 501 (1996)).




                                                                              A-0441-18T1
                                          7
      The record before us suggests the trial judge understood the proper

standard in addressing the waiver of the mandatory parole ineligibility period.

The judge considered statements from character witnesses, who asked that

defendant not be sentenced to prison. The judge also reviewed numerous letters,

including a letter from defendant, requesting leniency. Further, she considered

defendant's expressed remorse for his crimes and his offer to pay restitution. In

analyzing the aggravating and mitigating factors, she acknowledged defendant's

willingness to participate in a community program.

      During sentencing, defendant testified he understood that his guilty plea

would lead to forfeiture of public employment and this forfeiture "would have

implications in terms of pensions and other benefits that would have been

available to [him] as part of [his] employment."        Defendant affirmed he

comprehended these and other consequences flowing from his guilty plea.

      After the sentencing judge heard argument regarding defendant's waiver

request, she reviewed defendant's personal circumstances. She noted defendant

was forty-nine years old and had no criminal or juvenile record. Further, she

acknowledged he had worked for NJT for twenty-nine years, was married with

two children, had no substance abuse issues and had no history of domestic




                                                                         A-0441-18T1
                                       8
violence. She stated she "never had so many people speak on behalf of a

defendant's character."

         The judge also summarized the letters supporting defendant, noting they

"[spoke] to Mr. Davey's character and the burden that he would bear if [he] is

sentenced to imprisonment." She found defendant would likely be barred from

obtaining government employment, that he provided financially for his children,

suffered from spinal injuries, required therapy for the injuries and needed

additional surgeries. Moreover, the judge was aware from defense counsel's

comments that defendant's wife was disabled and had several surgeries

scheduled.     The trial judge further recognized defendant's children needed

"hospital care" for asthma and had other physical ailments "that require not only

Mr. Davey be present for them but also for his wife so that she can continue to

work and care for the children."

         Consistent with the Evers analysis, the judge considered the severity of

defendant's crimes (both third-degree offenses) and noted there was "no violence

here."       Further, she painstakingly addressed numerous aggravating and

mitigating factors. The judge found aggravating factors N.J.S.A. 2C:44-1(a)(9),

the need to deter, and (10), the offense involved fraudulent or deceptive

practices against a department or division of State government. She also found


                                                                         A-0441-18T1
                                         9
mitigating factors N.J.S.A. 2C:44-1(b)(6), defendant will compensate the victim

or perform community service, (7), no history of prior delinquency or criminal

activity, (8), defendant's conduct was the result of activities unlikely to recur,

(9), defendant's character and attitude indicates he is unlikely to commit another

offense, (10), defendant is likely to respond affirmatively to probationary

treatment, and (11), imprisonment of defendant would entail excessive hardship

to himself or his dependents.

      On her finding of excessive hardship, the judge explained she found this

mitigating factor because defendant is "someone who is extremely involved in

his family's lives." She added, "this goes above and beyond a simple sentence

[causing] a hardship that would be suffered by a parent's incarceration."

Additionally, the judge cited other hardships faced by defendant as a result of

his criminal conduct.    She noted his inability to pay his mortgage, and the

humiliation he had caused to himself and others. Ultimately, the judge concluded

the mitigating factors substantially outweighed the aggravating factors.

      The record reflects the judge clearly enunciated the applicable legal

standards to be considered before granting a waiver. She stated:

            The burden [under] N.J.S.A. 2C:43-6.5(c)(2) is by clear
            and convincing evidence. It requires that the [c]ourt
            find by clear and convincing evidence that
            extraordinary circumstances exist that warrant the

                                                                           A-0441-18T1
                                       10
     waiver pursuant to that statute of the minimum sentence
     that should be imposed for official misconduct offenses
     pursuant to N.J.S.A. 2C:43-6.5(a).

     The law has established that these circumstances be
     determined by clear and convincing evidence that
     extraordinary circumstances exist.           Based on the
     individual defendant [the court must find] that
     imposition of the statutory minimum would be a serious
     injustice that overrides the need to deter such conduct.
     And that's the . . . [State v.] Rice case at 425 N.J. Super.
     372 Appellate Division case from [2012] . . . . And, as
     to the interest of justice, again . . . the factors to be
     considered in determining whether the character and
     condition of the defendant is so highly unusual, unique,
     that imprisonment would be [a] serious injustice
     overriding the State's paramount concern for
     [deterrence].

The judge concluded:

     As to [deterrence], there's no question that defendant's
     prosecution in this case will serve as a deterrent to the
     defendant. It will also serve as a deterrence to others.
     Even if the defendant does not - - is not sentenced to
     prison . . . . The statutory mitigating factor to be
     considered is whether the character and the condition
     of the defendant is so highly unusual, unique and
     imprisonment would be a serious injustice which
     overrides the paramount - - the concern for deterrence .
     . . . And, these reasons, as I stated, are personal to the
     defendant but also pertaining to the effect that a
     sentence of imprisonment would have on his family, on
     his children. As such, I find that the defendant has met
     his burden by clear and convincing evidence that
     extenuating circumstances having regard to character
     and condition of the defendant require the waiver of the
     two year mandatory minimum. And, I - - further find

                                                                    A-0441-18T1
                                11
            that this court is satisfied that his imprisonment would
            be a serious injustice which overrides the need to deter
            the conduct of others. I've already indicated that I
            found that - - the mitigating factors substantially
            outweigh the aggravating factors.

      Following her lengthy analysis, the judge imposed a five-year

probationary term for each third-degree offense.

      The State concedes the trial judge initially cited the correct standard for

allowing a waiver, but argues she then utilized a less stringent standard of

"interests of justice" and replaced the "extraordinary circumstances" standard

with a "softer 'extenuating circumstances' burden."       We are satisfied the

sentencing judge used certain terms which are not set forth in the applicable

waiver statute. However, based on our thorough review of the sentencing

transcript, we cannot conclude the judge intended to deviate from the very

standards she enunciated before she granted defendant a waiver of the parole

ineligibility period and imposed a probationary sentence, rather than a prison

term for his amended official misconduct charge.

      Although the record reflects the judge referred to defendant's "extenuating

circumstances" and the need to satisfy the "interest of justice," before granting

the waiver, it also reflects she discussed the standards of "extraordinary

circumstances" and "serious injustice" attendant to a waiver application under


                                                                         A-0441-18T1
                                      12
N.J.S.A 2C:43-6.5 (c)(2). Moreover, her analysis involved a discussion of the

Evers and Rice cases, further evincing her understanding of the requirements to

find defendant was idiosyncratic and deserving of a waiver.

      Because the judge referred to standards that differed from what is set forth

in N.J.S.A. 2C:43-6.5(c)(2), we are constrained to remand this matter for

reconsideration of defendant's sentence. We observe that the loss of a job, and

other financial hardships do not constitute extraordinary and unanticipated

circumstances. Indeed, a conviction for third-degree official misconduct carries with

it a presumption of a minimum prison term, so such hardships are a natural,

reasonable consequence of a conviction for third-degree official misconduct.

      In sum, we affirm defendant's convictions and remand to the trial court to

conduct a resentencing within thirty days on the amended official misconduct

offense. The resentencing will afford the trial judge the opportunity to clarify her

comments and assess whether defendant's personal circumstances meet the exacting

statutory standards for the grant of a waiver, as set forth in N.J.S.A. 2C:43-6.5(c)(2).

      At the resentencing, the court should consider all relevant evidence and

all relevant sentencing factors as of the day defendant stands before the court.

State v. Randolph, 210 N.J. 330, 354 (2012). The sentencing court may consider

defendant's conduct and comportment while on probation, whether positive or


                                                                               A-0441-18T1
                                         13
negative. Defendant is entitled to bring to the court's attention any rehabilitative

or other constructive measures he has taken since he was sentenced. The State,

likewise, is not limited in its presentation.

      Affirmed in part and remanded for resentencing consistent with this opinion.

We do not retain jurisdiction.




                                                                            A-0441-18T1
                                        14
