SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1879-19T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

REYNALDO MORERA,

Defendant-Respondent.

________________________

Submitted September 29, 2020 – Decided

Before Judges Messano and Suter.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 16-04-1200. 

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).

Vincent C. Scoca, attorney for respondent (Robert 

Carter Pierce, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

October 28, 2020
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Pursuant to N.J.S.A. 2C:44-1(d), a sentencing court may "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[.]'" State v. Rice, 425 N.J. Super. 375, 386 (App. 

Div. 2012) (quoting N.J.S.A. 2C:44-1(d)). In addition, when a defendant is 

convicted of a first- or second-degree crime, "the court may sentence [him or 

her] to a term appropriate to a crime of one degree lower than that of the crime 

for which he [or she] was convicted[,]" if "the court is clearly convinced that the 

mitigating factors substantially outweigh the aggravating factors and where the 

interest of justice demands[.]" N.J.S.A. 2C:44-1(f)(2). Even if the State agrees 

to downgrade the charge to a third-degree offense pursuant to N.J.S.A. 2C:43-

6(f)(2), "the presumption of imprisonment" contained in N.J.S.A. 2C:44-1(d) 

still applies. State v. Nance, 228 N.J. 378, 399 n.4 (2017).

An Essex County grand jury indicted defendant Reynaldo Morera for 

third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 

2C:35-10(a)(1) (count one); and first-degree possession of CDS with intent to 

distribute, N.J.S.A. 2C:35-5(a)(1) (count two). The charges arose from events 

that took place on December 9, 2015, when defendant arrived at Newark Liberty 
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International Airport upon returning from the Dominican Republic. Federal 

authorities arrested defendant after inspection of two bottles marked "laxative 

supplement" in his luggage revealed they contained more than one kilogram of 

cocaine.

In return for defendant's guilty plea, the State agreed to downgrade count 

two to a second-degree offense, dismiss count one, and recommend a five-year 

term of imprisonment with no period of parole ineligibility. During the plea 

colloquy, defendant admitted that he traveled to the Dominican Republic to visit 

family, and, while there, he agreed to bring back the two bottles, which he knew 

contained cocaine, and deliver them to someone in Paterson, where defendant 

resided.

However, at sentencing, defense counsel argued that his fifty-seven-yearold client had been "duped into bringing some cocaine into the country under 

the guise of it being medication," but once defendant realized it was cocaine, 

"he went along with the event . . . despite not understanding the impact it could 

have on his life." Arguing a number of mitigating sentencing factors applied, 

see N.J.S.A. 2C:43-1(b), and noting defendant's gainful employment and lack of 
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prior criminal convictions,

1

counsel asked the judge to sentence defendant as a 

third-degree offender to a "reverse 364," i.e., a non-custodial probationary 

sentence in which defendant would serve 364 days in jail if he violated 

probation, or a suspended sentence. 

The prosecutor argued that defendant had already received the benefit of 

the State's decision to downgrade the charge from a first- to second-degree 

offense. The prosecutor noted that pursuant to N.J.S.A. 2C:44-1(d), a person 

convicted of a first- or second-degree offense was presumed to receive a 

sentence of imprisonment unless imprisonment would result in a serious 

injustice. He asked the court to impose the bargained-for sentence of five years 

imprisonment with no mandatory period of parole ineligibility. 

The judge noted that defendant had always appeared in court as required 

since his arrest, and she concluded the conviction was an "aberration" in 

defendant's life. She found aggravating factor nine applied, N.J.S.A. 2C:44-

1(a)(9) (the need to deter defendant and others), and mitigating factors six, 

seven, eight, nine and ten applied. See N.J.S.A. 2C:44-1(b)(6) (defendant has 

or will compensate the victim or will participate in a program of community 

1 The pre-sentence investigation report (PSR) revealed several prior criminal 

charges which defendant claimed were either dismissed or lodged against 

someone else, not him. 
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service); (b)(7) (defendant has no history of prior delinquency or criminal 

activity or has led a law-abiding life for a substantial period of time before the 

commission of the present offense); (b)(8) (defendant's conduct was the result 

of circumstances unlikely to recur); (b)(9) (defendant's character and attitude 

indicate he is unlikely to commit another offense); and (b)(10) (defendant is 

particularly likely to respond affirmatively to probationary treatment).

The judge concluded that the mitigating factors "substantially 

outweigh[ed] the aggravating ones," and pursuant to N.J.S.A. 2C:44-1(f), "it 

[wa]s in the interest of justice that [defendant be] given the opportunity to be 

sentenced a degree lower, to the third-degree range." Even though she noted 

that the presumption of imprisonment still applied, citing defendant's lack of 

criminal history, the judge concluded it was "appropriate" to impose a 

probationary sentence. The judge sentenced defendant to five years’ probation 

which could be reduced to three years if defendant complied with the terms and 

conditions of probation. The judge imposed all mandatory fines and penalties, 

one hundred hours of community service, and ordered defendant to maintain 

gainful employment and remain arrest and drug free. The State dismissed count 

one of the indictment.
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The sentence was automatically stayed pursuant to N.J.S.A. 2C:44-

1(f)(2), which provides, "if the court imposes a noncustodial or probationary 

sentence upon conviction for a crime of the first[-] or second degree, such 

sentence shall not become final for [ten] days in order to permit the appeal of 

such sentence by the prosecution." The State filed this timely appeal, after 

which the judge filed a written amplification of her reasons for imposing the 

probationary sentence. See R. 2:5-1(b).

The judge cited an article describing the role of "blind mules," i.e., 

"unknowing couriers" in international drug trafficking operations. Reiterating 

the sentencing factors she found prior to imposing probation and turning to 

N.J.S.A. 2C:44-1(f)(2), the judge wrote "that the mitigating factors substantially 

outweighed the aggravating factors and in the interest of justice, [defendant] 

should have been sentenced a degree lower in the third-degree range." The judge 

again found that defendant had "no criminal record and had had no involvement 

with the criminal justice system except for this matter[.]" 

Relying on State v. K.S., 220 N.J. 190 (2015), the judge wrote that she did 

not take into account that defendant was originally indicted for a first-degree 

offense, or his conviction for a disorderly persons' offense from 1995 because 

these were not "undisputed facts." Relying on State v. Jaffe, 220 N.J. 114 
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(2014), the judge wrote that she viewed defendant as he stood before the court 

on the day of sentencing, and, therefore, took into consideration that defendant 

had not reoffended since he was indicted. The judge wrote, "even if the court 

does take the original charges into consideration, [defendant’s] imprisonment 

would be of such serious injustice based on all of the mitigating factors that the 

court has considered."

The State contends not only did defendant fail to rebut the presumption of 

imprisonment that applies to convictions for first- or second-degree crimes, 

N.J.S.A. 2C:44-1(d), but also that defendant was not entitled to have the seconddegree conviction treated as a third-degree offense. We agree with both points, 

and, therefore, reverse and remand the matter to the trial court for resentencing.

Our review of the sentence imposed by the trial court is usually quite 

limited. State v. Miller, 205 N.J. 109, 127 (2011). We review the sentence for 

a mistaken exercise of the judge's discretion. State v. Fuentes, 217 N.J. 57, 70 

(2014). "However, 'the deferential standard of review applies only if the trial 

judge follows the Code and the basic precepts that channel sentencing 

discretion.'" State v. Trinidad, 241 N.J. 425, 453 (2020) (quoting State v. Case, 

220 N.J. 49, 65 (2014)).
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We begin by noting "that the two statutes address 'qualitatively different 

situations,' with N.J.S.A. 2C:44-1d being geared toward the initial determination 

of whether a defendant will be 'in or out' of prison rather than the length of term 

scenario confronted by the downgrade provision of N.J.S.A. 2C:44-1f(2)." State 

v. Lake, 408 N.J. Super. 313, 327 (App. Div. 2009) (quoting State v. Megargel, 

143 N.J. 484, 499 (1996)). "[T]he 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." Ibid. (quoting Megargel, 143 N.J. at 501–02).

"[T]he standard governing downgrading is high." Megargel, 143 N.J. at 

500. It requires the judge to engage in 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.'" Rice, 425 N.J. Super. at 384 (quoting State v. L.V., 410 N.J. Super. 

90, 109 (App. Div. 2009)). Additionally, "[t]he reasons justifying a downgrade 

must be 'compelling,' and something in addition to and separate from, the 

mitigating factors that substantially outweigh the aggravating factors." Ibid.

(quoting Megargel, 143 N.J. at 505). 
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"[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, 408 N.J. Super. at 326 

(citing Megargel, 143 N.J. at 500-01). The court must "consider the sentence 

from the perspective of deterrence." Trinidad, 241 N.J. at 454 (citing Megargel, 

143 N.J. at 501). The "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[.]" 

Megargel, 143 N.J. at 502.

Here, the judge engaged in the two-step process required, and, she 

concluded that the mitigating sentencing factors substantially outweighed the 

aggravating ones. However, in considering the "interest of justice" standard, the 

judge did not focus on the offense. She did not explain the compelling reasons 

why, for example, sentencing defendant at the lowest range for a second-degree 

offense, which was the State's recommendation, was inappropriate. 

Rather, the judge explained her reasons for a downgrade by focusing 

entirely upon defendant's lack of any serious criminal record, his stable 

employment, and his timeliness when required to be in court. The "interest of 

justice" prong cannot be based on "circumstances such as a defendant's overall 
10 A-1879-19T1

character or contributions to the community[.]" Rice, 425 N.J. Super. at 385; 

see also State v. Locane, 454 N.J. Super. 98, 110 (App. Div. 2018) (citing 

"black-letter law that the focus of the downgrade decision must be the severity 

of the crime, not defendant's personal circumstances"). Although the judge 

referenced the role of unwitting "mules" in the international drug trade, 

defendant's allocution under oath when he pled guilty belied any claim that he 

lacked full awareness of his role in transporting more than one kilogram of 

cocaine into this country and delivering it to a specific person. In short, the 

judge's decision to downgrade the offense was a mistaken exercise of her 

discretion.

"The 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." State v. Evers, 175 N.J. 355, 389 (2003) (citing State v. Jarbath, 

114 N.J. 394, 413 (1989)). The court's discretion to impose a sentence other 

than imprisonment upon conviction of a first- or second degree crime "may be 

legitimately exercised in those 'truly extraordinary and unanticipated' cases 

where the 'human cost' of punishing a particular defendant to deter others from 

committing his offense would be 'too great.'" Ibid. (quoting State v. Rivera, 124 

N.J. 122, 125 (1991)). In Evers, the Court noted that as of the date of its 
11 A-1879-19T1

decision, this exacting standard had only been met in one case, Jarbath. 175 N.J. 

at 389; see also State v. Soricelli, 156 N.J. 525, 533 (1999) (stating the Court

has "regularly . . . declined to find circumstances sufficient to constitute 'serious

injustice' that would overcome the presumption of incarceration"). Our research 

has revealed no other decision by the Court or any reported decision from this 

court since Evers that found the defendant was entitled to this extraordinary 

relief.

Here, the judge certainly explained what facets of defendant's "character 

and condition" influenced her decision not to impose a custodial term. N.J.S.A. 

2C:44-1(d). However, as the Court has explained,

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.

[Evers, 175 N.J. at 400.]

Simply put, the judge failed to explain what were the "truly extraordinary and 

unanticipated circumstances" present that justified the necessary statutory 

conclusion, i.e., defendant's incarceration would be a serious injustice that 
12 A-1879-19T1

outweighed the need to deter others from trying to import a significant amount 

of cocaine into this country. Megargel, 143 N.J. at 501. 

We are mindful that defendant committed this crime more than five years 

ago and was sentenced nearly one year ago. Defendant is entitled to have the 

judge assess him as he stands before the court at the time of re-sentencing. State 

v. Randolph, 210 N.J. 330, 351 (2012). We therefore decline the opportunity to 

exercise original jurisdiction and order the court to impose a specific sentence. 

We vacate the judgment of conviction in this case and remand the matter to the 

trial court for resentencing consistent with the principles discussed in this 

opinion. 

Reversed and remanded. We do not retain jurisdiction.