STATE
OF NEW JERSEY VS. BRIAN RICE
A-3777-09T4
Defendant,
an off-duty police officer, was convicted of second-degree official misconduct,
conspiracy to commit official misconduct, and tampering with physical
evidence. Pursuant to N.J.S.A.
2C:43-6.5(a), defendant faced a mandatory minimum term of five-years'
imprisonment. The judge sentenced
defendant as a third-degree offender, N.J.S.A. 2C:44-1(f)(2), reduced the mandatory
minimum pursuant to N.J.S.A. 2C:43-6.5(c)(2), and
imposed
a sentence of three years with a three-year period of parole ineligibility.
The State appealed and defendant
cross-appealed. We affirmed
defendant's conviction of official misconduct and tampering but reversed and
remanded for reconsideration of the sentence imposed.
N.J.S.A. 2C:43-6.5 was enacted in 2007
as part of a comprehensive legislative scheme affecting the pension rights of public
employees, as well as the forfeiture and sentencing
provisions
of the Code. N.J.S.A.
2C:43-6.5(c)(2) permits the judge to "waive or reduce the mandatory
minimum term of imprisonment required by" the statute if he "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."
This portion of the statute has not been the subject
of
a reported case.
We conclude the statute requires
application of a different standard than that which governs the exercise of the
judge's discretion in downgrading the offense pursuant to N.J.S.A.
2C:44-1(f)(2)
(permitting the judge to impose a sentence "one degree lower than that of
the crime for which [the defendant] was convicted" if "clearly
convinced that the mitigating factors substantially outweigh the aggravating
factors and . . . the interest of justice demands"). 4-16-12
