The Court continued:
The first prong of the downgrade analysis requires the mitigating factors to substantially outweigh the aggravating factors. second prong is that the interest of justice demands a downgrade. We fail to see where either prong was met.
Here either aggravating factors were not found or were given insufficient weight. The mitigating factors were not fully supported by the record. Thus, the mitigating factors did not substantially outweigh the aggravating. This was a second-degree crime, implicating the need for public protection and for deterrence. It was a crime for which the Legislature enacted an enhanced penalty, also a factor not taken into consideration. Where an enhanced penalty exists, care must be taken to closely adhere to, not ignore, the downgrade statute. We fail to see on this record where the interest of justice demands a downgrade.
Accordingly, we vacate the downgrade. In light of the striking similarities between the first and second sentence, the third and hopefully final hearing must occur before a different judge. See State v. Tindell, (App. Div. 2011) (“the statements made by the trial judge during the sentencing hearing created an irreparable impression of bias . . . . We are thus compelled to remand this matter for re-sentencing before a different judge.”).
Defendant is correct that in this case double jeopardy bars the State from appealing the concurrent terms. Concurrent terms are authorized dispositions, imposed at the discretion of the court. As Eigenmann explains: “once service of the sentence commenced, the lawful discretionary elements of the sentence — no matter how thoughtlessly or erroneously conceived — could not be made more burdensome.” It is basically too late to correct this wrong, and wrong it was.
The Appellate panel went out of their way to attack the trial judge. Their opinion ignores the fact that the prosecution failed to move for a stay of the sentence that would have given them standing to challenge the concurrent or consecutive decision before the defendant completed her sentence.