STATE OF NEW JERSEY VS. JOHN A. DAVEY (17-11-3156, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0441-18T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOHN A. DAVEY,
Defendant-Respondent.
_________________________
Submitted November 7, 2019 – Decided November 19, 2019
Before Judges Mayer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 17-11-3156.
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for appellant (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
Lorraine S. Gauli-Rufo, attorney for respondent.
PER CURIAM
The State appeals from a September 21, 2018 judgment of conviction
directing defendant to serve a five-year probationary sentence on an amended
third-degree official misconduct offense, N.J.S.A. 2C:30-2A. That same
judgment provided for defendant to serve a five-year probationary term for
third-degree theft, N.J.S.A. 2C:20-3A.1 Defendant was ordered to serve his
probationary sentences concurrently. The State challenges the official
misconduct sentence, arguing defendant was not entitled to a waiver of the
mandatory parole ineligibility period set forth in N.J.S.A. 2C:43-6.5(a). We
affirm defendant's convictions but remand this matter for resentencing on the
official misconduct sentence only.
On appeal, the State raises the following arguments:
Point I:
The sentencing court erred by granting defendant's motion to
waive the mandatory parole ineligibility period required by
N.J.S.A. 2C:43-6.5[(a)], and sentencing defendant to
probation.
A. The High Bar Imposed by N.J.S.A. 2C:43-
6.5[(c)] for waiver.
B. Defendant Falls Short of Clearing that High
Hurdle.
1
The State does not appeal defendant's sentence on the third-degree theft
charge.
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i. Sentencing Factors.
Aggravating Factor (3)
Aggravating Factor (4)
Aggravating Factor (11)
Mitigating Factor (7)
Mitigating Factor (8)
Mitigating Factor (10)
Mitigating Factor (11)
ii. The Need to Deter.
iii. Applicable Standard.
We review a judge's sentencing decision under an abuse of discretion
standard. State v. Fuentes, 217 N.J. 57, 70 (2014). "[A]ppellate courts are
cautioned not to substitute their judgment for those of our sentencing courts."
State v. Case, 220 N.J. 49, 65 (2014). (citations omitted).
As directed by the Fuentes Court, we must determine whether:
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[217 N.J. at 70 (alteration in original) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984).]
Trial judges have broad sentencing discretion if the sentence is based on
competent credible evidence and fits within the statutory framework. State v.
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Dalziel, 182 N.J. 494, 500 (2005). When sentencing a defendant, judges "first
must identify any relevant aggravating and mitigating factors set forth in
N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49,
64 (2014) (citing State v. Blackmon, 202 N.J. 283, 297 (2010)).
Guided by these principles, we are satisfied the aggravating and mitigating
factors found by the sentencing judge were based on competent and reasonably
credible evidence in the record. The State's argument to the contrary lacks merit
and requires no further discussion. R. 2:11-3(e)(2). Accordingly, we limit our
comments to whether the sentencing judge erred in granting defendant a waiver
of the parole ineligibility period set forth in N.J.S.A. 2C:43-6.5(a).
Defendant's conviction for an amended third-degree official misconduct
offense arises from his forgery of New Jersey Transit tickets and then selling
the forged tickets to NJT customers. In his guilty plea to the amended official
misconduct charge, he admitted receiving a benefit or depriving another of a
benefit valued at $200 or less. In exchange for his guilty plea, the State
recommended that defendant be sentenced to a four-year prison term with a two-
year period of parole eligibility on the amended official misconduct charge. The
State also indicated a willingness to dismiss the remaining counts of the
indictment once defendant was sentenced.
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Ordinarily, there is a presumption against imprisonment for third-degree
offenses where a defendant has no prior criminal history. However, no such
presumption exists where a defendant is convicted of third-degree official
misconduct.
N.J.S.A. 2C:43-6.5(a) provides, in relevant part:
[A] person who serves or has served as a public officer
or employee under the government of this State, or any
political subdivision thereof, who is convicted of a
crime that involves or touches such office or
employment . . . shall be sentenced to a mandatory
minimum term of imprisonment without eligibility for
parole as follows . . . for a crime of the third degree,
two years . . . . As used in this subsection, "a crime that
involves or touches such office or employment" means
that the crime was related directly to the person's
performance in, or circumstances flowing from, the
specific public office or employment held by the
person.
[Ibid. (emphasis added).]
Notwithstanding the language set forth in N.J.S.A. 2C:43-6.5(a), the
official misconduct statute provides a mechanism for a judge to waive the mandatory
minimum term of imprisonment as follows:
If the court 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, the court may waive or reduce the mandatory
minimum term of imprisonment required by subsection
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a. of this section. In making any such finding, the court
must state with specificity its reasons for waiving or
reducing the mandatory minimum sentence that would
otherwise apply.
[N.J.S.A. 2C:43-6.5(c)(2).]
When applying the "serious injustice" standard referenced in N.J.S.A. 2C:43-
6.5(c)(2), a trial court should determine "whether the 'extraordinary circumstances'
presented by an individual defendant outweigh the legislative determination that the
need to deter others from committing certain crimes 'involv[ing] or touch[ing] . . .
[public] office or employment' requires imposition of the statutory mandatory
minimum." State v. Rice, 425 N.J. Super. 375, 389 (App. Div. 2012) (alterations in
original) (quoting N.J.S.A. 2C:43-6.5(a) and (c)(2)). A waiver will be "justified only
in 'the extraordinary or extremely unusual case where the human cost of imprisoning
a defendant [for the statutory mandatory minimum and] for the sake of deterrence
constitutes a serious injustice.'" Ibid. (alteration in original) (quoting State v. Evers,
175 N.J. 355, 392 (2003)).
In considering whether to waive or reduce a mandatory term under N.J.S.A.
2C:43-6.5(a), a court should engage in an analysis similar to the one required by
N.J.S.A. 2C:44-1(d), which allows the court to waive a mandatory term for a first-
or second-degree offender if it finds that in light of defendant's "character and
condition," imprisonment would result in a serious injustice overriding the need of
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general deterrence. Rice, 425 N.J. Super. at 386-87. The "serious injustice" standard
contained in both statutes requires a showing of extraordinary and unanticipated
circumstances. Id. at 386. "[T]he reasons offered to dispel the presumption of
imprisonment must be even more compelling than those that might warrant
downgrading an offense." Evers, 175 N.J. at 389 (citation omitted).
In Evers, Justice Albin provided guidance to trial judges on addressing the so-
called idiosyncratic defendant. In assessing whether a defendant's "character and
condition" satisfy the "serious injustice" standard under N.J.S.A. 2C:44-1(d), the
Court advised that "a trial court should determine whether there is clear and
convincing evidence that there are relevant mitigating factors present to an
extraordinary degree and, if so, whether cumulatively, they so greatly exceed any
aggravating factors that imprisonment would constitute a serious injustice overriding
the need for deterrence." Id. at 393-94. The Court warned that "it is the quality of
the factor or factors and their uniqueness in the particular setting that matters." Id.
at 394. The Evers Court also noted "demands for deterrence are strengthened in
direct proportion to the gravity and harm[ful]ness of the offense and the
deliberateness of the offender." Id. at 394 (alteration in original) (quoting State v.
Megargel, 143 N.J. 484, 501 (1996)).
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The record before us suggests the trial judge understood the proper
standard in addressing the waiver of the mandatory parole ineligibility period.
The judge considered statements from character witnesses, who asked that
defendant not be sentenced to prison. The judge also reviewed numerous letters,
including a letter from defendant, requesting leniency. Further, she considered
defendant's expressed remorse for his crimes and his offer to pay restitution. In
analyzing the aggravating and mitigating factors, she acknowledged defendant's
willingness to participate in a community program.
During sentencing, defendant testified he understood that his guilty plea
would lead to forfeiture of public employment and this forfeiture "would have
implications in terms of pensions and other benefits that would have been
available to [him] as part of [his] employment." Defendant affirmed he
comprehended these and other consequences flowing from his guilty plea.
After the sentencing judge heard argument regarding defendant's waiver
request, she reviewed defendant's personal circumstances. She noted defendant
was forty-nine years old and had no criminal or juvenile record. Further, she
acknowledged he had worked for NJT for twenty-nine years, was married with
two children, had no substance abuse issues and had no history of domestic
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violence. She stated she "never had so many people speak on behalf of a
defendant's character."
The judge also summarized the letters supporting defendant, noting they
"[spoke] to Mr. Davey's character and the burden that he would bear if [he] is
sentenced to imprisonment." She found defendant would likely be barred from
obtaining government employment, that he provided financially for his children,
suffered from spinal injuries, required therapy for the injuries and needed
additional surgeries. Moreover, the judge was aware from defense counsel's
comments that defendant's wife was disabled and had several surgeries
scheduled. The trial judge further recognized defendant's children needed
"hospital care" for asthma and had other physical ailments "that require not only
Mr. Davey be present for them but also for his wife so that she can continue to
work and care for the children."
Consistent with the Evers analysis, the judge considered the severity of
defendant's crimes (both third-degree offenses) and noted there was "no violence
here." Further, she painstakingly addressed numerous aggravating and
mitigating factors. The judge found aggravating factors N.J.S.A. 2C:44-1(a)(9),
the need to deter, and (10), the offense involved fraudulent or deceptive
practices against a department or division of State government. She also found
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mitigating factors N.J.S.A. 2C:44-1(b)(6), defendant will compensate the victim
or perform community service, (7), no history of prior delinquency or criminal
activity, (8), defendant's conduct was the result of activities unlikely to recur,
(9), defendant's character and attitude indicates he is unlikely to commit another
offense, (10), defendant is likely to respond affirmatively to probationary
treatment, and (11), imprisonment of defendant would entail excessive hardship
to himself or his dependents.
On her finding of excessive hardship, the judge explained she found this
mitigating factor because defendant is "someone who is extremely involved in
his family's lives." She added, "this goes above and beyond a simple sentence
[causing] a hardship that would be suffered by a parent's incarceration."
Additionally, the judge cited other hardships faced by defendant as a result of
his criminal conduct. She noted his inability to pay his mortgage, and the
humiliation he had caused to himself and others. Ultimately, the judge concluded
the mitigating factors substantially outweighed the aggravating factors.
The record reflects the judge clearly enunciated the applicable legal
standards to be considered before granting a waiver. She stated:
The burden [under] N.J.S.A. 2C:43-6.5(c)(2) is by clear
and convincing evidence. It requires that the [c]ourt
find by clear and convincing evidence that
extraordinary circumstances exist that warrant the
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waiver pursuant to that statute of the minimum sentence
that should be imposed for official misconduct offenses
pursuant to N.J.S.A. 2C:43-6.5(a).
The law has established that these circumstances be
determined by clear and convincing evidence that
extraordinary circumstances exist. Based on the
individual defendant [the court must find] that
imposition of the statutory minimum would be a serious
injustice that overrides the need to deter such conduct.
And that's the . . . [State v.] Rice case at 425 N.J. Super.
372 Appellate Division case from [2012] . . . . And, as
to the interest of justice, again . . . the factors to be
considered in determining whether the character and
condition of the defendant is so highly unusual, unique,
that imprisonment would be [a] serious injustice
overriding the State's paramount concern for
[deterrence].
The judge concluded:
As to [deterrence], there's no question that defendant's
prosecution in this case will serve as a deterrent to the
defendant. It will also serve as a deterrence to others.
Even if the defendant does not - - is not sentenced to
prison . . . . The statutory mitigating factor to be
considered is whether the character and the condition
of the defendant is so highly unusual, unique and
imprisonment would be a serious injustice which
overrides the paramount - - the concern for deterrence .
. . . And, these reasons, as I stated, are personal to the
defendant but also pertaining to the effect that a
sentence of imprisonment would have on his family, on
his children. As such, I find that the defendant has met
his burden by clear and convincing evidence that
extenuating circumstances having regard to character
and condition of the defendant require the waiver of the
two year mandatory minimum. And, I - - further find
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that this court is satisfied that his imprisonment would
be a serious injustice which overrides the need to deter
the conduct of others. I've already indicated that I
found that - - the mitigating factors substantially
outweigh the aggravating factors.
Following her lengthy analysis, the judge imposed a five-year
probationary term for each third-degree offense.
The State concedes the trial judge initially cited the correct standard for
allowing a waiver, but argues she then utilized a less stringent standard of
"interests of justice" and replaced the "extraordinary circumstances" standard
with a "softer 'extenuating circumstances' burden." We are satisfied the
sentencing judge used certain terms which are not set forth in the applicable
waiver statute. However, based on our thorough review of the sentencing
transcript, we cannot conclude the judge intended to deviate from the very
standards she enunciated before she granted defendant a waiver of the parole
ineligibility period and imposed a probationary sentence, rather than a prison
term for his amended official misconduct charge.
Although the record reflects the judge referred to defendant's "extenuating
circumstances" and the need to satisfy the "interest of justice," before granting
the waiver, it also reflects she discussed the standards of "extraordinary
circumstances" and "serious injustice" attendant to a waiver application under
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N.J.S.A 2C:43-6.5 (c)(2). Moreover, her analysis involved a discussion of the
Evers and Rice cases, further evincing her understanding of the requirements to
find defendant was idiosyncratic and deserving of a waiver.
Because the judge referred to standards that differed from what is set forth
in N.J.S.A. 2C:43-6.5(c)(2), we are constrained to remand this matter for
reconsideration of defendant's sentence. We observe that the loss of a job, and
other financial hardships do not constitute extraordinary and unanticipated
circumstances. Indeed, a conviction for third-degree official misconduct carries with
it a presumption of a minimum prison term, so such hardships are a natural,
reasonable consequence of a conviction for third-degree official misconduct.
In sum, we affirm defendant's convictions and remand to the trial court to
conduct a resentencing within thirty days on the amended official misconduct
offense. The resentencing will afford the trial judge the opportunity to clarify her
comments and assess whether defendant's personal circumstances meet the exacting
statutory standards for the grant of a waiver, as set forth in N.J.S.A. 2C:43-6.5(c)(2).
At the resentencing, the court should consider all relevant evidence and
all relevant sentencing factors as of the day defendant stands before the court.
State v. Randolph, 210 N.J. 330, 354 (2012). The sentencing court may consider
defendant's conduct and comportment while on probation, whether positive or
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negative. Defendant is entitled to bring to the court's attention any rehabilitative
or other constructive measures he has taken since he was sentenced. The State,
likewise, is not limited in its presentation.
Affirmed in part and remanded for resentencing consistent with this opinion.
We do not retain jurisdiction.
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