In State v. John Fiore, Docket No. A-0960-09T2 and A-1078-09T2 (App. Div. 2013), the downgraded sentence pursuant to N.J.S.A. 2C:44-1f(2) was affirmed. There, a jury found defendant guilty on: count one (second-degree conspiracy to promote or facilitate bribery in official and political matters, N.J.S.A. 2C:27-2d; misapplication of entrusted property, N.J.S.A. 2C:21-15; and official misconduct, N.J.S.A. 2C:30-2), count two (second-degree bribery in official and political matters N.J.S.A. 2C:27-2d), and part of count four (second-degree official misconduct for accepting a bribe, N.J.S.A. 2C:30-2a). Id. at 2-4. It is noteworthy that all three of Fiore’s convictions carried “enhanced penalties” in the form of five year periods parole ineligibility under N.J.S.A. 2C:43-6.5.
Over the state’s objection, after merging all of the counts the trial judge downgraded count four to a third-degree offense pursuant to N.J.S.A. 2C:44-1f(2) and sentenced defendant to a three-year term of imprisonment with no minimum period of parole ineligibility. Fiore, at 4.
In affirming the downgrade, the Appellate Division held in relevant part:
The judge found and applied the following mitigating factors: N.J.S.A. 2C:44-1b(6), the defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;” N.J.S.A. 2C:44-1b(7), “the 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;” N.J.S.A. 2C:44-1b(8), “the defendant’s conduct was the result of circumstances unlikely to recur;” N.J.S.A. 2C:44-1b(9), “the character and attitude of the defendant indicate that he is unlikely to commit another offense;” N.J.S.A. 2C:44-1b(10), “the defendant is particularly likely to respond affirmatively to probationary treatment;” N.J.S.A. 2C:44-1b(11), “the imprisonment of the defendant would entail excessive hardship to himself or his dependents;” and N.J.S.A. 2C:44-1b(12),”the willingness of the defendant to cooperate with law enforcement authorities.” The judge then treated sentencing disparity in the sentences imposed on Nemes and Rossi as a mitigating factor. The judge made detailed factual findings with respect to each aggravating and mitigating factor and determined that the mitigating factors clearly and convincingly outweighed the aggravating factors and the interest of justice demanded a downgrade.
We discern no abuse of discretion in defendant’s sentence. The judge abided by the presumption of imprisonment applicable to a defendant convicted of a second-degree crime, even when that crime is downgraded for the purpose of sentencing. N.J.S.A. 2C:44-1d; State v. Evers, 175 N.J. 355, 388 (2001). We are satisfied that the record amply supports the aggravating and mitigating factors the judge found and applied and does not support aggravating factor one. We are also satisfied that the judge properly weighed the aggravating and mitigating factors and determined that the interest of justice demanded a downgrade of count four from a second to a third degree offense pursuant to N.J.S.A. 2C:44-1f(2). Affirmed.
Fiore, at 38-41.
While the record is silent as to the nature of mitigating factor 12 in Fiore, it is clear is that the factor was disputed by the State when they appealed the downgraded sentence. Id. at 39. Therefore, there is no basis to give it any significant weight in the downgrading process. Such would be the case if Fiore provided crucial testimony against a co-defendant or otherwise assisted the police in a successful investigation. The same logic applies to the trial court’s treating the disparity of the negotiated sentences of Fiore’s co-defendants as a mitigating factor since the state disputed that mitigating factor as well. Id.
Notably, the Appellate Division did not require the trial court to announce any specific findings with regard to compelling reasons for the downgrade “in addition to the mitigating factors.” This was due in large part to the fact that “The judge abided by the presumption of imprisonment applicable to a defendant convicted of a second-degree crime, even when that crime is downgraded for the purpose of sentencing.”
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