SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO S

. A

- 2098

- 17T3

A

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- 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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

February 25, 20202 A

- 2098

- 17T3 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 D ennis Gillet, Special Deputy Attorney General/Acting D eputy First Assistant Prosecutor, argued the cause for appellant /cross

- respondent (Christopher L.C. Kuberiet, Acting Middlesex County Prosecutor, attorney; Brian D ennis Gillet, of counsel and on the brief )

. Timothy J ohn Dey argued the cause for respondent s /cross

- appellants

.
PER CURIAM

T he 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 e xcessive s entence o ral

a rgument calendar. W e 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 appeal ed from those decisions. The Supreme Court granted certification and summarily remanded the matters to us "f or 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 ).3 A

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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 DISQUAL IFIER 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 FIND4 A

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- 17T3 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 clai ms abandoned , s ee 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.

W e set forth the facts of this case in our previous decision reversing the
trial judge ' s grant of defendants ' motions for jud gment of acquittal

. 2 Hanna , slip
op. at 15 (App. Div. Feb. 9, 2016). We note all parties ' merits briefs ex tensively
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). Defend ants 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 consi dered made under Rule 3:18

- 2. Ibid.5 A

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D efendants 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 sec urity 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

— w ould 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 wa s bypassed for any reason, the ticket would be stamped

"void , " ibid. , and the exit gate would have to be raised by u sing a swipe card ,
i d. 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 disclosed6 A

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- 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 th at 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 Defendant s 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 duti es, 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 misapplication7 A

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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

ab use 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

- d egree financial facilitation of criminal activity, N.J.S.A. 2C:21

- 25(a) (count thirteen)

. Hanna was additionally charged with se cond

- degree leader of organized crime, N.J.S.A. 2C:5

- 2(g) (count fourteen) and second

- degree t heft 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).8 A

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[ State v. Fuentes , 217 N.J. 57, 70 (2014) (alteration in origin al) (quoting State v. Roth , 95 N.J. 334, 364

- 65 (1984)).]

W e 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 rec ord. 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) ( t h e 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 or9 A

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order of restitution, without also imposing a term of imprisonment would be
perceived . . . as part of the cost of doing business," or expense rela ted 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 whi ch he was convicted.10 A

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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 , " t he 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." ( E mphasis
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 involve d fr audulent 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 explaine d that application of aggravating factor four
raised the prohibited practice of double

- counting because the underlying

convicti on for official misconduct "inherently involves a breach of trust.

Moreover, the court ' s sentence in this matter involving as it does a significant11 A

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period of parole ineligibility does not ' depreciate ' the seriousness of the offense.
Imprisonment, particu larly 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

"in volves 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 f actor. 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 Co urt 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 de termining that12 A

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- counting of elements of the offenses as aggravating factors would be likely to interfere with the Code ' s de dication 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 f actor 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 i mplicate the three

element s of official misconduct so as to constitute double

- counting. Rather, the
task is akin to considering w hether injuries sustained by a victim of a violent
crime exceed those required to establish an element of the crime. See , e.g. , State13 A

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v. Mara , 253 N. J

. Super. 204, 214 (App. Div. 1992) ("The extent of the injuries ,
which exceed the statutory minimum for t he 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 conside red 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, t he 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."14 A

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T he assista nt prosecutor , when asked by the judge at the sentencing
hearing how the application of factor ten was "not double

- c ounting," 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

-- o fficial 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 co ncession during sentencing effectively forecloses its contrary
argument on appeal. J i v. Palmer , 333 N.J. Super. 451, 459 (App. Div. 2000).
Nonetheless, b ecause 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 New15 A

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Jersey Department of Community Affairs, as we recognized in ou r 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 o f 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

-16 A

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6.5(c)(2). If the mandatory minimum is reduced or waived, the sentencing judge
"must state with specificity its reasons" f or 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 i n 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 fr om 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 :17 A

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. [1 75 N.J. at 39 3

- 94.]
Additionally, t he Court instructed that the quality of the cumulative
"extraordinary mitigating factors . . . must be weighed in deciding whether the

' serious injustice ' standard has been met

. " I d. at 39 5

. 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 min imum 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] b e attributed to
. . . defendants"; they received "[ n ] o personal benefit"; only aggravating factor18 A

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nine applied; they had "no substantial criminal record " ; and their re ci di vism risk

was "de minimis." T he judge thus concluded clear and convincing ev idence
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 39 1

- 9 2

. T he Evers Court recognized

that only one case, to that point, satisfied the high standard : State v. Jarbat h

. 6

Id. at 389

. T he 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 pl eaded 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 crim e 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).19 A

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[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

- 7 4 (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 re duced mandatory minimum term. As t he Evers C ourt 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. ]20 A

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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. D efendants have not
met the heavy bu rden 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 assum ed 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 he r 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 must21 A

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acknowledge such conduct constitutes official misconduct, particul ar ly 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 reve rsal 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 o f 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.