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

NOT FOR PUBLICATION WITHOUT THE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, 2020
2

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 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' crossappeals challenging the imposed sentences as excessive. State v. Hanna, No. A2098-17 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).
3

A-2098-17T3

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 AGGRAVATINGMITIGATING 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
4

A-2098-17T3

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 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.
5

A-2098-17T3

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
6

A-2098-17T3

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 seconddegree 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
7

A-2098-17T3

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,4the 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 seconddegree 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).
8

A-2098-17T3

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 secondguess 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 
9

A-2098-17T3

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.
10 A-2098-17T3

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 
11 A-2098-17T3

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 
12 A-2098-17T3

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
13 A-2098-17T3

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."
14 A-2098-17T3

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 
15 A-2098-17T3

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-
16 A-2098-17T3

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:
17 A-2098-17T3

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 
18 A-2098-17T3

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).
19 A-2098-17T3

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.] 
20 A-2098-17T3

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
21 A-2098-17T3

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.