STATE OF NEW JERSEY VS. BRIAN RICE A-3777-09T4

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