For reinstatement -- Chief Justice Wilentz and Justices Clifford, Handler, O'Hern, Garibaldi, Stein and Pollock. Opposed -- None. The opinion of the Court was delivered by Pollock, J.
Following defendant's conviction for official misconduct, the trial court sentenced him to a six-year custodial term. In an unreported opinion, the Appellate Division sustained the conviction, but reversed the sentence and remanded the matter for resentencing. We granted the State's motion for leave to appeal, and now reinstate the sentence originally imposed by the trial court.
The facts surrounding the sordid incident underlying this case may be summarized as follows. On August 31, 1984, defendant, Charles O'Donnell, a police officer of the City of Elizabeth, arrested Kevin Burns. Because Burns resisted the arrest, defendant and his partner, Officer Kelly, subdued him.
Three other police officers arrived to provide "back-up" support and to control a gathering crowd. Instead of taking Burns to a holding cell at police headquarters, Kelly and O'Donnell took him to the police garage. According to Burns, defendant said the officers intended to beat him because he had robbed elderly residents of Elizabeth, including the relative of another police officer, Joseph Overberger. Defendant did not testify, and Kelly did not recall defendant making that statement.
At the garage, Burns's hands and ankles were handcuffed. Defendant and Kelly then placed Burns's hands on a hydraulic lift, which Kelly raised until Burns was lifted off his feet. While Burns was suspended, defendant hit him in the legs with a nightstick. Additionally, defendant punched the victim so hard that the stone fell from defendant's Marine Corps ring. Officer Overberger arrived and also punched Burns. After the beating, Burns was taken to Elizabeth General Hospital because of an arm injury he suffered before his arrest.
None of the police officers involved in the beating reported the incident. The matter came to light when an assistant prosecutor was preparing for the trial of Burns on several robbery charges. Aware of Burns's allegations that he had been beaten, the prosecutor interviewed defendant, who initially said that he had used his nightstick because Burns had resisted arrest. After being assured that his comments would be "off the record," O'Donnell told the prosecutor about the beating: "We took him back to the garage and beat him. We took care of him. We laid into him with our nightsticks. We called Overberger down and 'he got licks in, too.'" Defendant related the details of the beating and asserted that the police officers had beaten the victim "for the old people that Burns had gotten." He explained why the officers had beaten Burns between the neck and legs: "We only did that because when I had first gotten on the force I had opened up some guy's head and I had gotten some shit for that, besides it hurts more to hit them in the legs and it doesn't leave marks."
Defendant told the prosecutor not to worry about the incident because no one was present but the victim and police officers. Furthermore, defendant stated that if he were questioned, he would swear that he never hit Burns.
Together with two other police officers, defendant was indicted for official misconduct, contrary to N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6, as well as aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) and N.J.S.A. 2C:2-6. Officer Kelly turned State's witness and testified under a grant of immunity. N.J.S.A. 2A:81-17.3. The other officers were acquitted of all charges, and defendant was acquitted of aggravated assault. The jury was unable to agree on the charge of official misconduct against defendant, but on retrial defendant was found guilty of that charge.
Balancing the aggravating and mitigating factors, the trial court sentenced defendant to six-years' imprisonment without any parole ineligibility. The court found that defendant, who was a decorated Viet Nam veteran, had an exceptional record as a public servant. The only other mitigating factor was the potential hardship defendant would face in prison. N.J.S.A. 2C:44-1b(7) and -(11). Because of O'Donnell's boastful attitude about the beating administered to Burns, the court specifically rejected arguments that defendant was unlikely to commit another offense. N.J.S.A. 2C:44-1b(9). The court then found a number of aggravating factors: the cruelty of the assault, N.J.S.A. 2C:44-1a(1); the victim's vulnerability, N.J.S.A. 2C:44-1a(2); the likelihood that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); and the need to deter similar police misconduct, N.J.S.A. 2C:44-1a(9).
In vacating the sentence, the Appellate Division found that the trial court improperly considered certain aggravating factors and failed to consider some mitigating factors. With respect to the aggravating factors, the Appellate Division ruled that the sentencing judge erred by concluding ...