NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0779-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON DRIESSE,
Defendant-Appellant. _______________________
Argued October 29, 2024 – Decided February 13, 2025
Before Judges Sumners and Perez-Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 16-08-0708.
Robert C. Gottlieb (Robert C. Gottlieb & Associates, PLLC) of the New York bar, admitted pro hac vice, argued the cause for appellant (Paul B. Brickfield, PC, and Robert C. Gottlieb, attorneys; Paul B. Brickfield and Robert C. Gottlieb, of counsel and on the briefs).
Timothy P. Kerrigan, Jr., Chief Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Timothy P. Kerrigan, Jr. of counsel and on the brief). PER CURIAM
On May 3, 2016, defendant drove his friend S.S. (Stacy),1 with whom he
had prior sexual relations but was never involved in a committed relationship
with, to an isolated wooded area of Long Pond Ironworks State Park. After they
got out of the car, defendant directed her to write a suicide note and when she
refused, he pulled out a gun. Defendant later claimed the gun was inoperable
and he was recreating an episode from M*A*S*H, the popular television show
from the early 1970s to early 1980s, where a doctor convinces a suicidal soldier
to live by acting as if the doctor would shoot and kill the soldier. Believing
Stacy was suicidal because of emotional issues related to her relationships with
other individuals and her sexuality, defendant professed he was trying to instill
in her a desire to live by showing her what it felt like to be close to dying. After
Stacy refused to write the note, defendant took her home.
About three months later, on August 17, a grand jury charged defendant
in a seven-count indictment with attempted murder, N.J.S.A. 2C:5-1(a)(1) and
2C:11-3(a)(1); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-
1(b)(4); second-degree aggravated assault with intent to cause serious bodily
1 We use initials and pseudonyms to protect the victim's identity. R. 1:38- 3(c)(12). A-0779-22 2 injury, N.J.S.A. 2C:12-1(b)(1); second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(1); second-degree unlawful possession
of a weapon without a permit, N.J.S.A. 2C:39-5(b)(1); third-degree terroristic
threats, N.J.S.A. 2C:12-3(b); and third-degree aggravated assault causing bodily
injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(2).
In October 2021, the motion judge denied defendant's motion to suppress
evidence of a firearm and notebook found in his home during the execution of
search warrant.
On February 7, 2022, defendant moved to dismiss the indictment for a
violation of his right to a speedy trial. The motion judge denied the request on
March 3, 2022.
Defendant's nine-day jury trial began on March 15, 2022, before a
different judge than who ruled on defendant's suppression and speedy trial
motions. Defendant was found guilty of unlawful possession of a weapon and
terroristic threats but was acquitted of the remaining five charges.
About a month later, the prosecutor declined to waive mandatory
minimum term of imprisonment for the unlawful possession of a weapon
conviction under the Graves Act, N.J.S.A. 2C:43-6.2. The Criminal Division
presiding judge denied the appeal. The trial judge sentenced defendant to a
A-0779-22 3 Graves sentence of five years in prison for unlawful possession of a weapon with
forty-two months of parole ineligibility, along with a concurrent four-year
prison term for terroristic threat. Defendant appeals, arguing:
POINT I
THE PASSAGE OF 2,132 DAYS FROM ARREST TO TRIAL VIOLATED [DEFENDANT'S] CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.
POINT II
THE TRIAL COURT'S DECISION TO IMPOSE THE GRAVES ACT WAS AN ABUSE OF DISCRETION.
POINT III
THE SENTENCING JUDGE IMPROPERLY WEIGHED AGGRAVATING AND MITIGATING FACTORS.
POINT IV
THE TRIAL COURT ERRED IN FINDING THAT THERE WAS PROBABLE CAUSE TO SEARCH [DEFENDANT'S] RESIDENCE FOR FIREARMS BECAUSE IT LACKED SUFFICIENT INFORMATION FOR SUCH A DETERMINATION.
Having considered the parties' arguments and applicable law, we affirm the
convictions and sentence but remand to the trial judge for the limited purpose of
amending the judgment of conviction (JOC).
A-0779-22 4 I.
Speedy Trial
We first address defendant's speedy trial claim. Based on the four-factor
balancing test proclaimed in Barker v. Wingo, 407 U.S. 514, 527 (1972), as
adopted by our State in State v. Szima, 70 N.J. 196, 200-01 (1976), defendant
contends the motion judge erred in denying his motion to dismiss the indictment
due to lack of a speedy trial because "2,103 days" 2 passed from his arrest on
May 6, 2016 to the filing of his speedy trial motion on February 7, 2022.
"The Sixth Amendment protects a defendant's right to a speedy trial after
arrest or indictment." State v. May, 362 N.J. Super. 572, 595 (App. Div. 2003)
(quoting State v. Long, 119 N.J. 439, 469 (1990)). The Barker four-factor test
must be applied to determine when a violation of a defendant's right to a speedy
trial contravenes due process. The Barker test focuses on: (1) the length of the
delay before trial; (2) the reason for the delay and, specifically, whether the
government or the defendant is more to blame; (3) the extent to which the
defendant asserted his speedy trial right; and (4) the prejudice to the defendant.
407 U.S. at 530-31.
2 It was actually 2,106 days. A-0779-22 5 A judge applying the Barker test must balance the four factors, State v.
Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009), based on a "case-by-case
analysis" because the "facts of an individual case are the best indicators of
whether a right to a speedy trial has been violated," State v. Cahill, 213 N.J. 253,
270-71 (2013). "But the question of how long is too long" for a trial to be
delayed "'cannot be answered by sole reference to the lapse of a specified
amount of time.'" State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983)
(quoting State v. Smith, 131 N.J. Super. 354, 360, aff'd, 70 N.J. 213 (1976)).
Legitimate delays, "however great," will not violate the defendant's right to a
speedy trial if it does not specifically prejudice the defendant's defense. Doggett
v. United States, 505 US. 647, 656 (1992). Furthermore, it is well established
that longer delays may "be tolerated for serious offenses or complex
prosecutions." Cahill, 213 N.J. at 265. Moreover, it bears emphasis that "[a]ny
delay that defendant caused or requested would not weigh in favor of finding a
speedy trial violation." State v. Gallegan, 117 N.J. 345, 355 (1989). "The only
remedy" for a violation of a defendant's right to a speedy trial "is dismissal of
the charge." Cahill, 213 N.J. at 276.
For this appeal, we afford deference to the motion judge's findings as to
the assessment and balancing of the Barker factors. State v. Fulford, 349 N.J.
A-0779-22 6 Super. 183, 195-96 (App. Div. 2002). "[W]e reverse only if the [trial] court's
determination is clearly erroneous." Tsetsekas, 411 N.J. Super. at 10 (citing
State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)). "[N]otwithstanding
our de novo review of [a] defendant's speedy trial claims," we "review the
decision of the trial court, not to decide the motion tabula rasa." State v. Reyes-
Rodriguez, ___ N.J. Super ___ (App. Div. 2025) (slip op. at 16) (quoting Est. of
Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 302 (App. Div. 2018)).
Guided by these principles, we are satisfied the motion judge, who was
not the trial judge, properly applied the Barker factors in its bench opinion and
found defendant's rights to a speedy trial were not violated.
Beginning with Barker's first factor, the length of the trial's delay, it
weighs heavily in favor of defendant. Defendant waited nearly six years to go
to trial; he was indicted on August 17, 2016, and his trial started March 15, 2022.
Thus, we agree with the motion judge's determination there "is no question . . .
the length of time between the indictment and the trial date of this matter . . . is
an inordinate amount of time" that "has triggered a serious consideration of the
other [three Barker] factors."
Turning to Barker's second factor, the reason for the trial's delay and who
is to blame, it could not be held against the State nor the court. The motion
A-0779-22 7 judge determined "that at least two years, if not more, of the delay was due to
[the] COVID-19" pandemic, which "cannot be held against the State or the
[c]ourt." The judge also noted defendant's first counsel became seriously ill at
the beginning of the pandemic and when the vicinage began having jury trials
again in June 2021, preference was given to cases involving detained defendants
–– which did not include defendant who posted a bond and wore a GPS ankle
monitor. And when defendant's trial was scheduled to start in January 2022, his
new defense counsel became infected with COVID-19, thereby delaying the
trial. Thereafter, defendant filed his speedy trial motion. The judge thus
determined there was no speedy trial violation to warrant dismissal of the
indictment because there was a reasonable explanation for the trial being
delayed. See Barker, 407 U.S. at 453.
The parties dispute whether defendant's first counsel was ready for trial in
September 2019 before the pandemic took effect and whether new counsel was
ready for trial when new counsel was substituted on March 27, 2021 or June 18,
2021. There, however, is no dispute that the trial was significantly delayed due
to the pandemic and priority was given to jury trials involving detained
defendants. We thus see no reason to disagree with the motion judge's credible
factual findings that the State did not cause the delays and under the
A-0779-22 8 circumstances there were reasonable explanations for the delay in starting
defendant's trial.
The third Barker factor, defendant's responsibility to assert the speedy
trial right, see Szima, 70 N.J. at 201, weighs against defendant. The motion
judge recognized that defendant asserted his right but waited until "the eve of
trial" to make the motion, as a "defense tactic." Moreover, defendant filed his
speedy trial motion about five years and six months after his indictment.
Finally, the fourth Barker factor, whether the delay prejudiced defendant,
also weighs against defendant. He contends he was prejudiced because he: (1)
"paid a total of $11,340[] for his GPS monitor during the pendency of this case;"
(2) "was dismissed from three jobs when . . . his GPS ankle bracelet
malfunctioned and sounded an alarm while he was working," which caused
feelings of embarrassment and being incarcerated while wearing the GPS ankle
bracelet; (3) had to transfer colleges; and (4) could not "be represented at trial
by the attorney of his choice."
The motion judge rejected these assertions. The judge acknowledged
defendant faced employment "issues" and "anxiety" while awaiting trial but
found them unpersuasive considering there are detained defendants "facing the
same" or "more serious charge[s]" while defendant proceeded to trial. The judge
A-0779-22 9 was unconvinced, finding defendant did not assert the trial delay resulted in
"losing a witness," the "destruction of exculpatory evidence," nor compromised
his discovery. The judge further noted that by not being detained, defendant
was able to freely prepare his defense with counsel without the restrictions and
lesser conditions of a detained defendant. We see no reason to disagree as the
judge's ruling is consistent with our prior considerations of this factor.
In State v. Le Furge, we held the interests "protected by the speedy trial
right" include "1) prevention of oppressive pretrial incarceration; 2)
minimization of anxiety and concern of the accused; [and] 3) limitation of the
possibility that the defense will be impaired." 222 N.J. Super. 92, 99 (App. Div.
1988) (citing Barker, 407 U.S. at 532). In considering the prejudice to a
defendant by having an unreasonable trial delay, the court generally looks to
"prejudice affecting defendant's liberty interest or . . . ability to defend on the
merits." Tsetsekas, 411 N.J. Super. at 13. Yet, other "significant prejudic[ial]"
factors are considered, such as
when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the "other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances."
A-0779-22 10 [Ibid. (quoting State v. Farrell, 320 N.J. Super. 425, 452 (App. Div. 1999)).]
On balance, we see defendant's situation like that in Le Furge where we
rejected the detained defendant's claim of prejudice, which "sole[ly] . . .
involve[d] the 'hardship for the defendant of waiting almost four years to learn
whether the State's appeal would be successful and, if so, what sentence would
be imposed.'" 222 N.J. Super. at 99. Such hardships, standing alone, are
insufficient to demonstrate prejudice. Id. at 99-100. As the motion judge
correctly recognized, defendant was not detained and did not claim impairment
to his defense. The only prejudice he suffered was due to his change in counsel
and the costs and difficulties imposed by his GPS ankle monitor. Yet, the record
supported the judge's finding that defendant knew there was no guarantee his
first counsel could represent him in the first instance, yet he waited to find new
counsel. Moreover, defendant's posting of a bond and use of a GPS ankle
monitor allowed him to remain free during the COVID-19 pandemic and, as the
motion judge noted, afforded him luxuries unavailable to other defendants
awaiting trial.
In sum, without question, the delay in adjudicating this case was much too
long. Yet, except for pre-trial anxiety and stress, considering the valid reasons
for most of the trial date adjournments, defendant's failure to promptly file his
A-0779-22 11 motion for a speedy trial, and the lack of prejudice to his defense at trial, the
facts militate against dismissal of this case. The balancing of the four Barker
factors leads us to agree with the motion judge that there was no violation of
defendant's right to a speedy trial.
II.
Search Warrant Probable Cause
We next address defendant's argument that the motion judge, who also
decided the speedy trial motion, erred in finding the police had probable cause
to search his home pursuant to a search warrant based on a New Jersey State
Park Police detective's probable cause affidavit reciting Stacy's account of the
incident. Defendant contends the judge erroneously determined probable cause
existed to issue the search warrant because there was insufficient evidence
showing that a gun "could conceivably" be in his home and its whereabouts.
Defendant also contends the judge erred in allowing the seizure of a notebook
considering the probable cause affidavit did not mention the notebook.
Search warrants are presumed valid. State v. Missak, 476 N.J. Super. 302,
317 (App. Div. 2023) (citing State v. Bivins, 226 N.J. 1, 11 (2016)). Our
deference to the trial court's issuance of a search warrant exists where "the
adequacy of the facts offered to show probable cause . . . appears to be
A-0779-22 12 marginal." Ibid. (alteration in the original) (quoting State v. Kasabucki, 52 N.J.
110, 116 (1968)). The warrant must be based on the probable cause "to believe
evidence of a crime will be found at a particular place." Facebook, Inc. v. State,
254 N.J. 329, 340 (2023). "Great protection applies especially in one's home,
the sanctity of which 'is among our most cherished rights.'" State v. Boone, 232
N.J. 417, 426 (2017) (quoting State v. Bryant, 227 N.J. 60, 69 (2016)).
Our review of the record demonstrates the State's warrant application was
based on adequate facts indicating defendant's involvement in criminal activity.
Defendant failed to surmount his "burden of proof to establish a lack of probable
cause 'or that the search was otherwise unreasonable.'" Boone, 232 N.J. at 427
(quoting State v. Watts, 223 N.J. 503, 513-14 (2015)). The detective's affidavit
in the warrant application recited Stacy's account that defendant: drove them to
his house and, while she waited in the car, he went inside before returning about
ten minutes later with unknown objects that he placed in his car trunk; drove to
the woods in Long Pond Ironworks State Park; showed her a notebook and gun;
she dropped the notebook after he pulled the gun's trigger; and he then drove
Stacy home without stopping.
The affidavit recited that after she told her parents what happened and
they advised her to get proof of the incident, she texted defendant after he left
A-0779-22 13 her house to get proof. The affidavit continued that in response to Stacy's text
about the trauma defendant inflicted on her, including putting "a gun to [her]
head," defendant acknowledged that "I'm going to have a hard time explaining
it. I want to explain it all to you. It was wrong. It was really really really
wrong."
In denying the motion, the judge determined
there was sufficient probable cause supplied by the affiant in the search warrant affidavit . . . that a weapon could conceivably be found . . . based upon the statement that at the very least we know that the notebook was taken from the scene, that [defendant] stopped at his home before they went to the woods, and he placed something in his trunk.
Based on that information, the victim's statement, and the defendant’s admission, at least in the text messages, this [c]ourt finds that there was sufficient probable cause within the four corners of the affidavit . . . .
We concur with the judge. It was reasonable for the judge to believe that
evidence of the offense –– the notebook and gun –– detailed in the detective's
affidavit, could be found in defendant's home. Indeed, there is no basis for
defendant's claim that the "affidavit is completely silent" regarding the
notebook. The police had "more than mere naked suspicion" to think he kept
the evidence somewhere in his home or car. State v. Gathers, 234 N.J. 208, 220
A-0779-22 14 (2018) (quoting State v. Keyes, 184 N.J. 541, 553 (2005)). Nothing short of
common sense supported probable cause for the search warrant. See id. at 221.
III.
Graves Act Waiver
Defendant argues the prosecutor and the presiding judge abused their
discretion by declining to grant him a Graves Act waiver. He contends the
Graves Act "is intended for people who actually attempt or commit acts of
violence." He maintains he should have received a waiver because he has no
prior "contacts with law enforcement," completed his college studies, was
employed while the trial was pending, has no history of substance abuse,
presented several character witnesses at sentencing, did not intend to harm
Stacy, and did not possess a firearm capable of firing at the time of the offense .
"The [Graves] Act makes the use or possession of a firearm during the
commission, attempted commission, or flight from the commission of certain
designated offenses a sentencing factor that triggers the imposition of a
mandatory term of imprisonment." State v. Benjamin, 228 N.J. 358, 367 (2017)
(alteration in original) (quoting State v. Franklin, 184 N.J. 516, 529 (2005)). A
defendant convicted of certain offenses involving firearms must receive a
minimum sentence of five years in prison with a minimum forty-two months'
A-0779-22 15 parole ineligibility. N.J.S.A. 2C:43-6(c). The purpose of the Graves Act is "to
deter individuals from committing firearm-related crimes by calling for a
mandatory minimum term of imprisonment for those convicted of Graves Act
offenses." Id. at 368 (citing State v. Des Marets, 92 N.J. 62, 71 (1983)).
The Graves Act, however, includes "a limited exception that allows
certain first-time offenders to receive a reduced penalty if the imposition of a
mandatory term would not serve the interests of justice." Ibid. This exception
states:
On a motion by the prosecutor made to the assignment judge that the imposition of a mandatory minimum term of imprisonment under (a) subsection c. of N.J.S.[A.] 2C:43-6 for a defendant who has not previously been convicted of an offense under that subsection, or (b) subsection e. of N.J.S.[A.] 2C:39-10 for a defendant who has not previously been convicted of an offense under chapter 39 of Title 2C of the New Jersey Statutes, does not serve the interests of justice, the assignment judge shall place the defendant on probation pursuant to paragraph (2) of subsection b. of N.J.S.[A.] 2C:43-2 or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole. The sentencing court may also refer a case of a defendant who has not previously been convicted of an offense under that subsection to the assignment judge, with the approval of the prosecutor, if the sentencing court believes that the interests of justice would not be served by the imposition of a mandatory minimum term.
[N.J.S.A. 2C:43-6.2.]
A-0779-22 16 A prosecutor's discretion to recommend a Graves Act waiver to the trial
court is guided by an Attorney General Directive. Attorney General's Directive
to Ensure Uniform Enforcement of the "Graves Act" (Oct. 23, 2008, as corrected
Nov. 25, 2008). The Directive requires prosecutors to "consider all relevant
circumstances concerning the offense conduct and the offender, including those
aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1," and
provides that the prosecutor "may also take into account the likelihood of
obtaining a conviction at trial." Ibid. In deciding whether to move for a lesser
sentence, the prosecutor must follow the Directive and, if a defendant's request
for such a motion is denied, provide a particularized statement of reasons for the
denial. Benjamin, 228 N.J. at 361. The prosecutor has the discretion to grant a
waiver and may even deny it to a defendant the trial court finds deserving of
leniency. State v. Rodriguez, 466 N.J. Super. 71, 125 (App. Div. 2021). Only
if a defendant shows that the prosecutor's decision was a patent and gross abuse
discretion should it be overturned. See Benjamin, 228 N.J. at 364 (permitting a
"defendant[] to appeal the denial of a waiver to the assignment judge upon a
showing of patent and gross abuse of discretion by the prosecutor").
There is no dispute that defendant's conviction of unlawful possession of
a weapon exposed him to a mandatory minimum sentence of "one-half of the
A-0779-22 17 sentence imposed by the court or [forty-two] months, whichever is greater."
N.J.S.A. 2C:43-6(c). Defendant's claim that he did not possess a gun capable of
firing is without merit given the jury found him guilty of unlawful possession of
a weapon. The prosecutor declined to grant a Graves Act waiver, finding
defendant inflicted serious harm on Stacy and further noted:
The State . . . has reviewed all the mitigating factors submitted by your office. Specifically, the State has reviewed Exhibit A ([defendant's expert r]eport) as well as Exhibit B, which encompassed roughly one-hundred and twenty-two letters submitted on behalf of [defendant]. These letters that the State reviewed were from immediate family, extended family, friends, congregation members, clergy, and employers. . . .
[T]he State is not extending a Graves [w]aiver in this matter for the following reasons. The jury in this case returned a verdict against [defendant] for [u]nlawful [p]ossession of a [w]eapon as well as [t]erroristic [t]hreat. . . . [T]he jury did not find [defendant's] version of events credible. The jury found that he did possess a firearm, not a part of a firearm, and that he did threaten to kill [Stacy].
It should be noted that throughout this proceeding from its inception that [Stacy] had to endure emotional consternation because of [defendant's] actions. [Stacy] was required to come to court and testify in this proceeding which was broadcast on the internet due to COVID-19, about facts and circumstances not only surrounding the events of the day, but also her background. This testimony included topics such as her sexual orientation and experiences as well as mental health struggles. [Stacy] also had to endure the
A-0779-22 18 emotional trauma from the event itself. She testified at trial about the events and testified to the jurors how she believed she was going to die. She testified that she was preparing to meet God and believed that May 3, 2016, would be her last day on Earth. It is the position of the State, that these events do not make this case one in which a Graves [w]aiver is appropriate.
The presiding judge found the prosecutor's denial of the waiver was not
"used to punish . . . defendant . . . because he is exercising his constitutional
right to a jury trial" and was consistent in seeking the Graves Act's mandatory
minimum sentence throughout this matter. The judge rejected defendant's
challenge to the prosecutor's denial, finding "the State provided adequate and
enough balance and justification for the factors in its ultimate denial of this
Graves Act application" such that it was not an abuse of discretion. The judge
agreed with the prosecutor's application of aggravating factors: one, "[t]he
nature and circumstances of the offense[s] . . . including whether or not it was
committed in an especially heinous, cruel, or depraved manner"; two, "[t]he
gravity and seriousness of harm inflicted on the victim"; and nine,"[t]he need
for deterring the defendant and others from violating the law." N.J.S.A. 2C:44 -
1(a)(1), (2), and (9). The judge applied mitigating factors: seven, defendant
lacks a "history of prior delinquency or criminal activity"; eight, "conduct was
the result of circumstances unlikely to recur"; nine, "unlikely to commit another
A-0779-22 19 offense"; and fourteen, "defendant was under 26 years of age at the time of the
commission of the offense." N.J.S.A. 2C:44-1(b)(7), (8), (9), and (14). In
finding the prosecutor did not abuse their discretion, the judge determined that
when
balanc[ing] these aggravating and mitigating factors for the purpose of the Alvarez[3] motion and considering the factors that the State considered, including the nature of the offense, the facts surrounding the circumstances of the case, the needs and the interest of the society, and the harm to the victim, all of those, when I consider those factors, the [c]ourt is satisfied that the State provided adequate and enough balance and justification for the factors in its ultimate denial of this Graves Act application.
We have no issue with the presiding judge's decision not to overturn the
prosecutor's decision in denying defendant a Graves Act waiver. Based on the
credible evidence in the record and the prosecutor's reasoning, the judge
properly determined there was no patent and gross abuse of discretion by the
prosecutor. Defendant has not articulated any argument to make us think
otherwise.
3 State v. Alvarez, 246 N.J. Super. 137, 146-47 (App. Div. 1991), which recognized a defendant can make a motion appealing the denial of Graves Act waiver. A-0779-22 20 IV.
Application of Sentencing Factors
Finally, we address defendant's assertion that the trial judge improperly
weighed the sentencing factors, which he found in equipoise. The judge applied
aggravating factors one, three and nine. Defendant contends the judge
improperly applied aggravating factors three and nine. The judge applied
mitigating factors seven and fourteen. Defendant also argues the judge should
have honored his request to apply mitigating factors: two, "defendant did not
contemplate that the . . . conduct would cause or threaten serious harm"; eight;
nine; and ten, "defendant is particularly likely to respond affirmatively to
probationary treatment." N.J.S.A. 2C:44-1(b) (2), (8), (9), and (10).
Assessing the trial judge's application of aggravating factors, we agree in
part with defendant's contentions. He is correct that in applying aggravating
factor three the judge did not consider defendant as an individual, but incorrectly
rested his consideration on normative statements about crime, and also rejected
defendant's expert opinion by finding defendant was a risk to commit another
crime. See State v. Coviello, 252 N.J. 539, 553 (2023) (holding "sentencing
judges must carefully consider both the nature of the proven offenses and the
individual characteristics of each offender"). The judge stated defendant is "not
A-0779-22 21 . . . [a] risk of harm to himself or others in the community at the present time ,"
but "there's always a risk that the defendant will commit another offense.
Although it may not be a high risk, there is always the risk." There was nothing
in defendant's history indicating he might commit another crime. See State v.
Locane, 454 N.J. Super. 98, 125 (App. Div. 2018) (quoting State v. Thomas, 188
N.J. 137, 153 (2006)) (sentencing should "include an evaluation and judgment
about the individual in light of his or her history"). The judge did not cite any
credible evidence in the record to support his finding of aggravating factor three.
See State v. Case, 220 N.J. 49, 65 (2014) (ruling appellate review must affirm a
sentence supported by credible evidence in the record). Moreover, in applying
mitigating factor seven, that defendant has no criminal history, and aggravating
factor three, the judge did not "explain how [he] reconcile[d] those two findings"
nor "explain in greater detail its assessment of the weight assigned to each
aggravating and mitigating factor, and its balancing of those statutory factors as
they apply to defendant." State v. Fuentes, 217 N.J. 57, 81 (2014).
We disagree with defendant that the trial judge should not have applied
aggravating factor nine. In pertinent part, the judge reasoned the factor applied
because there was "[a] strong need to deter others from acting in the same
manner with regards to what was presented in court at trial as to this offense that
A-0779-22 22 the jury had found [defendant] guilty of." While defendant's abusive conduct
was tied to his relationship with Stacy and he was law-abiding in the four years
between his arrest and trial, application of aggravating factor nine was supported
by credible evidence in the record of the depravity of his conduct and the harm
he inflicted. Defendant's convictions for second-degree unlawful possession of
a weapon justifies application of the aggravating factor to deter him and others
from using gun as means to coerce or influence another person. See e.g., State
v. Carey, 168 N.J. 413, 426 (2001) (citing State v. Megargel, 143 N.J. 484, 500
(1996)) (recognizing "[t]he need for public safety and deterrence increase
proportionally with the degree of the offense").
Turning to the mitigating factors, defendant's contention that the judge
should have applied factors two, eight, nine, and ten has merit. At sentencing,
the judge recognized the offense occurred over six years earlier and defendant
cooperated with his pretrial detainment conditions, found employment,
presented an expert opining he was not a risk to himself and others, and had
family, friends, and fellow church members profess to his fine character. These
all indicate defendant's conduct is unlikely to recur (mitigating factor eight), he
is unlikely to recommit (mitigating factor nine), and defendant would benefit
A-0779-22 23 from probation (mitigating factor ten). Yet, the judge did not indicate why these
factors did not apply.
Defendant's claim, however, that mitigating factor two should have been
applied is not evident in the record. It is difficult, if not impossible, to believe
defendant's conduct was not contemplated to cause serious harm to Stacy: he
took her to the woods, held a gun to her head, and demanded that she kill herself,
and if she did not, he would kill her. Thus, there was no reason to question why
the judge rejected application of mitigating factor two.
Although we conclude the trial judge should not have applied aggravating
factor three, and should have explained why mitigating factors eight, nine, and
ten were not applied, we dismiss defendant's request for resentencing. He was
sentenced to the minimum prison term under the Graves Act for second-degree
unlawful possession of a weapon without a permit. And the concurrent four-
year prison term for third-degree terroristic threats is supported by the record
and is within our sentencing guidelines. See State v. Bolvito, 217 N.J. 221, 228
(2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)) (affirming a sentence on appellate review unless "(1) the sentencing
guidelines were violated; (2) the findings of aggravating and mitigating factors
were not 'based upon competent credible evidence in the record;' or (3) 'the
A-0779-22 24 application of the guidelines to the facts' of the case 'shock[s] the judicial
conscience.'"). Thus, it would be superfluous to vacate defendant's sentence and
remand for resentencing because there is no reasonable basis to conclude he
would receive a lighter sentence given his offenses. Nevertheless, we remand
to the trial judge for the limited purpose of removing the application of
aggravating factor three from the JOC.
To the extent we have not addressed any of defendant's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed in part and remanded in part.
A-0779-22 25