Sentencing Downgrade (Part 8) – State v. John Fiore

by | Jan 18, 2016 | Blog, Criminal Law, Jail Time and Probation

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.”

Excellent rating
Based on 288 reviews
Google star 1Google star 2Google star 3Google star 4Google star 5
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred completely exceeded all expectations with the result of my case.
John M
Google star 1Google star 2Google star 3Google star 4Google star 5
I love the insight! It helps to keep my kids out of troubel!
Michael G
Google star 1Google star 2Google star 3Google star 4Google star 5
Great!!! , got my case handled in the exact manner that I was told and would recommend to everyone else in need of legal representation .
Raumelis R
Google star 1Google star 2Google star 3Google star 4Google star 5
Best criminal defense lawyer in ocean county!!
Austin A
Google star 1Google star 2Google star 3Google star 4Google star 5
Called back within 10 minutes,very easy to talk to. Not judgmental at all. I am hopeful about the outcome.
Colleen H
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred helped me in a civil matter and was very attentive to my needs and responsive to my emails. Also very detail-oriented and timely. Highly recommend.
Kristen C
Google star 1Google star 2Google star 3Google star 4Google star 5
Very knowledgeable within every aspect of the law. Highly recommend his talent for your criminal defense.
Will S
Google star 1Google star 2Google star 3Google star 4Google star 5
Hired Mr.Sisto to handle a case of mine a couple of months ago and while the service was okay the customer service was awful. When I had inquired about a charge I was unsure of on my bill, Mr. Sisto immediately got defensive and had the unprofessionalism to ask me if I “was high” for asking this question. I wonder if Mr. Sisto asks all of his clients this question or only the ones who have jobs in the cannabis industry? Regardless, I don’t believe this was an appropriate question to ask, regardless of the industry one works in, and therefore Mr. Sisto needs to heavily work on his customer service. Edit: Mr. Sisto had the UNPROFESSIONALISM to reach out to my family and ask them to ask me to take down my review instead of reaching out directly towards me when it was I who was his client, not my family. Clearly speaks to the unprofessionalism surrounding this practice. This has not been the only time Mr.Sisto has gone directly to my family instead of me, his client, for important legal matters and I will not seek out his services again. For those who may not understand Spanish, the email starts with “You should speak to your daughter regarding the review she has just published.” Edit to Response: As an attorney, one should be able to make appropriate questions and comments regardless if a client is “uncooperative” or “disrespectful.” The fact that rather than apologizing for the awful interaction with your firm, and I was not released “within hours” as you claim shows how low value your firm is and how you openly instead chose to harass my family through email for my initial review rather than actually revomy case which I ended up doing and you chareged me for . Regardless of results, your character speaks volumes and anyone who reads this would know better than to give their money to an awful person such as yourself. What a shame
Ximena C
Google star 1Google star 2Google star 3Google star 4Google star 5
Great experience overall having Frederick P Sisto as my attorney. Sisto understands his client, very insightful and is an expert in his field. Truly a professional and marvelous individual.
Maybelin R
Google star 1Google star 2Google star 3Google star 4Google star 5
For the people. For the little guy My legal bully
Glennlykesmusic