NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1569-13T3
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, September 8, 2015 v. APPELLATE DIVISION
KASSEY BENJAMIN,
Defendant-Appellant. ________________________________________
Argued February 3, 2015 – Decided September 8, 2015
Before Judges Fisher, Accurso and Manahan.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-09-1414.
David R. Oakley argued the cause for appellant (Anderl & Oakley, P.C., attorneys; Mr. Oakley, of counsel and on the brief).
Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).
The opinion of the court was delivered by
MANAHAN, J.S.C. (temporarily assigned).
In this Graves Act case, defendant appeals from his
conviction after a plea for which he was sentenced to a three-
year prison term with a period of parole ineligibility for three
years. On appeal, defendant argues the prosecutor and Attorney General should be ordered to produce records relating to their
waiver decisions of other defendants pursuant to the Graves Act
"escape valve" statute. N.J.S.A. 2C:43-6.2. Prior to his plea,
defendant requested the records without success. In light of
our review of the record, the applicable law and in
consideration of fundamental fairness, we reverse and remand.
On July 27, 2011, defendant and his friends became involved
in a verbal altercation with another group of young males at a
McDonald's "drive-thru" in Edison, during which defendant
brandished a handgun. Defendant did not point the gun at anyone
in particular. When the handgun was later recovered by police
it was unloaded. The handgun's serial number was scratched off.
A Middlesex County Grand Jury returned an indictment
charging defendant with second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4a (count one); second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count
two); fourth-degree possession of a defaced firearm, N.J.S.A.
2C:39-3d (count three); third-degree terroristic threats,
N.J.S.A. 2C:12-3b (count four); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5d (count five); and
third-degree possession of a weapon for unlawful purposes,
N.J.S.A. 2C:39-4d (count six).
2 A-1569-13T3 Defense counsel filed a motion requesting the prosecutor to
approve a referral of defendant's case to the Assignment Judge
or otherwise grant a waiver from the three-year mandatory
minimum sentence. The prosecutor opposed defendant's
application. In furtherance of the motion, defense counsel
requested documents relating to waiver decisions by the
prosecutor. The prosecutor denied the request in writing
stating that there were no records responsive to the request.
The prosecutor, besides noting his opposition to the motion, did
not provide the basis in writing for not seeking a waiver. In a
written reply, the Attorney General's Office denied a similar
records request stating that "this division does not have the
documents you are seeking; therefore, your request is denied."
Without further pursuit of the motion or the denial of the
records he sought, defendant entered a guilty plea.1
At the plea hearing, defense counsel noted the following:
[W]e do intend to appeal an issue which occurred earlier, which comes out of the pre-trial . . . where we attempted to ascertain all of the waivers under the Graves waivers that were done by the Middlesex County Prosecutor's Office, and also from the Attorney General, and through OPRA, and also through regular discovery
1 Defense counsel filed a denial of access complaint with the Government Records Council and defendant agreed to mediate. The Middlesex County Prosecutor's Office declined mediation because it did not possess the documents defendant requested.
3 A-1569-13T3 requests. And we were told nothing like that exists.
As a result of the plea, no order was entered by the court
in relation to the motion.
Pursuant to a plea agreement, defendant pled guilty to one
count of second-degree possession of a weapon for an unlawful
purpose. Defense counsel reiterated his intention to appeal the
sentence, based upon the same concerns raised at the plea
hearing. The sentencing judge found aggravating factor nine and
mitigating factors seven, eight and nine. The judge noted that
defendant had no prior criminal history and led a law abiding
life for his twenty years. The judge also noted that he did not
think this conduct would reoccur or that defendant would ever
pick up another weapon. Defendant was sentenced in accord with
the plea agreement to a three-year term of imprisonment with a
three-year period of parole ineligibility.
On appeal, defendant argues:
POINT I
DEFENDANT'S SENTENCE OUGHT TO BE VACATED AND REMANDED. COUNTY PROSECUTOR SHOULD BE ORDERED TO PRODUCE RECORDS OF WAIVERS FOR RESENTENCING.
POINT II
DEFENDANT'S SENTENCE OUGHT TO BE VACATED AND REMANDED BECAUSE THE AG DIRECTIVE AUTHORIZES INTER-COUNTY DISPARITY, IT MUST BE REVISED FOR RESENTENCING OF DEFENDANT.
4 A-1569-13T3 At the outset we note two obstacles to our review; one of
which the State impliedly raises and the other which the State
did not raise.2
First, defendant does not appeal from an order denying the
production of the waiver records as no order was entered. As
such, defendant's appeal would, in the usual course, be barred
for lack of jurisdiction. R. 2:2-3; Do-Wop Corp. v. City of
Rahway, 168 N.J. 191, 199 (2001) ("[I]t is well-settled that
appeals are taken from orders and judgments and not from
opinions, oral decisions, informal written decisions, or reasons
given for the ultimate conclusion."); see also Heffner v.
Jacobson, 100 N.J. 550, 553 (1985); Commercial Realty &
Resources Corp. v. First Atl. Properties Co., 122 N.J. 546
(1991); Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78
(App. Div. 1993). We have at times opted to overlook technical
insufficiencies in order to reach the merits of the appeal. In
re Berkeley, 311 N.J. Super. 99, 101 (App. Div. 1998); Paquet,
Inc. v. Dep't of Transp., 335 N.J. Super. 130, 135 n.1 (App.
Div. 2000).
Second, while defendant, through counsel, noted his intent
to appeal the non-production of the requested documents at both
2 The State argues on appeal that defendant waived his right to appeal the decision of the prosecutor by not challenging it before the Assignment Judge.
5 A-1569-13T3 the plea and sentence, he did not enter a "conditional plea."
R. 3:9-3(f). Although, during the plea and sentence, the State
lodged no objection to defendant's "reservation" to appeal the
waiver decision and non-production of records, defendant did not
seek the approval of the court nor the consent of the prosecutor
to enter a conditional plea. Ordinarily, the failure to enter a
conditional plea would bar appellate review of other than search
and seizure issues. State v. Knight, 183 N.J. 449, 471 (2005);
State v. J.M., 182 N.J. 402, 410 (2005).
In State v. Gonzalez, 254 N.J. Super.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1569-13T3
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, September 8, 2015 v. APPELLATE DIVISION
KASSEY BENJAMIN,
Defendant-Appellant. ________________________________________
Argued February 3, 2015 – Decided September 8, 2015
Before Judges Fisher, Accurso and Manahan.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-09-1414.
David R. Oakley argued the cause for appellant (Anderl & Oakley, P.C., attorneys; Mr. Oakley, of counsel and on the brief).
Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).
The opinion of the court was delivered by
MANAHAN, J.S.C. (temporarily assigned).
In this Graves Act case, defendant appeals from his
conviction after a plea for which he was sentenced to a three-
year prison term with a period of parole ineligibility for three
years. On appeal, defendant argues the prosecutor and Attorney General should be ordered to produce records relating to their
waiver decisions of other defendants pursuant to the Graves Act
"escape valve" statute. N.J.S.A. 2C:43-6.2. Prior to his plea,
defendant requested the records without success. In light of
our review of the record, the applicable law and in
consideration of fundamental fairness, we reverse and remand.
On July 27, 2011, defendant and his friends became involved
in a verbal altercation with another group of young males at a
McDonald's "drive-thru" in Edison, during which defendant
brandished a handgun. Defendant did not point the gun at anyone
in particular. When the handgun was later recovered by police
it was unloaded. The handgun's serial number was scratched off.
A Middlesex County Grand Jury returned an indictment
charging defendant with second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4a (count one); second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count
two); fourth-degree possession of a defaced firearm, N.J.S.A.
2C:39-3d (count three); third-degree terroristic threats,
N.J.S.A. 2C:12-3b (count four); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5d (count five); and
third-degree possession of a weapon for unlawful purposes,
N.J.S.A. 2C:39-4d (count six).
2 A-1569-13T3 Defense counsel filed a motion requesting the prosecutor to
approve a referral of defendant's case to the Assignment Judge
or otherwise grant a waiver from the three-year mandatory
minimum sentence. The prosecutor opposed defendant's
application. In furtherance of the motion, defense counsel
requested documents relating to waiver decisions by the
prosecutor. The prosecutor denied the request in writing
stating that there were no records responsive to the request.
The prosecutor, besides noting his opposition to the motion, did
not provide the basis in writing for not seeking a waiver. In a
written reply, the Attorney General's Office denied a similar
records request stating that "this division does not have the
documents you are seeking; therefore, your request is denied."
Without further pursuit of the motion or the denial of the
records he sought, defendant entered a guilty plea.1
At the plea hearing, defense counsel noted the following:
[W]e do intend to appeal an issue which occurred earlier, which comes out of the pre-trial . . . where we attempted to ascertain all of the waivers under the Graves waivers that were done by the Middlesex County Prosecutor's Office, and also from the Attorney General, and through OPRA, and also through regular discovery
1 Defense counsel filed a denial of access complaint with the Government Records Council and defendant agreed to mediate. The Middlesex County Prosecutor's Office declined mediation because it did not possess the documents defendant requested.
3 A-1569-13T3 requests. And we were told nothing like that exists.
As a result of the plea, no order was entered by the court
in relation to the motion.
Pursuant to a plea agreement, defendant pled guilty to one
count of second-degree possession of a weapon for an unlawful
purpose. Defense counsel reiterated his intention to appeal the
sentence, based upon the same concerns raised at the plea
hearing. The sentencing judge found aggravating factor nine and
mitigating factors seven, eight and nine. The judge noted that
defendant had no prior criminal history and led a law abiding
life for his twenty years. The judge also noted that he did not
think this conduct would reoccur or that defendant would ever
pick up another weapon. Defendant was sentenced in accord with
the plea agreement to a three-year term of imprisonment with a
three-year period of parole ineligibility.
On appeal, defendant argues:
POINT I
DEFENDANT'S SENTENCE OUGHT TO BE VACATED AND REMANDED. COUNTY PROSECUTOR SHOULD BE ORDERED TO PRODUCE RECORDS OF WAIVERS FOR RESENTENCING.
POINT II
DEFENDANT'S SENTENCE OUGHT TO BE VACATED AND REMANDED BECAUSE THE AG DIRECTIVE AUTHORIZES INTER-COUNTY DISPARITY, IT MUST BE REVISED FOR RESENTENCING OF DEFENDANT.
4 A-1569-13T3 At the outset we note two obstacles to our review; one of
which the State impliedly raises and the other which the State
did not raise.2
First, defendant does not appeal from an order denying the
production of the waiver records as no order was entered. As
such, defendant's appeal would, in the usual course, be barred
for lack of jurisdiction. R. 2:2-3; Do-Wop Corp. v. City of
Rahway, 168 N.J. 191, 199 (2001) ("[I]t is well-settled that
appeals are taken from orders and judgments and not from
opinions, oral decisions, informal written decisions, or reasons
given for the ultimate conclusion."); see also Heffner v.
Jacobson, 100 N.J. 550, 553 (1985); Commercial Realty &
Resources Corp. v. First Atl. Properties Co., 122 N.J. 546
(1991); Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78
(App. Div. 1993). We have at times opted to overlook technical
insufficiencies in order to reach the merits of the appeal. In
re Berkeley, 311 N.J. Super. 99, 101 (App. Div. 1998); Paquet,
Inc. v. Dep't of Transp., 335 N.J. Super. 130, 135 n.1 (App.
Div. 2000).
Second, while defendant, through counsel, noted his intent
to appeal the non-production of the requested documents at both
2 The State argues on appeal that defendant waived his right to appeal the decision of the prosecutor by not challenging it before the Assignment Judge.
5 A-1569-13T3 the plea and sentence, he did not enter a "conditional plea."
R. 3:9-3(f). Although, during the plea and sentence, the State
lodged no objection to defendant's "reservation" to appeal the
waiver decision and non-production of records, defendant did not
seek the approval of the court nor the consent of the prosecutor
to enter a conditional plea. Ordinarily, the failure to enter a
conditional plea would bar appellate review of other than search
and seizure issues. State v. Knight, 183 N.J. 449, 471 (2005);
State v. J.M., 182 N.J. 402, 410 (2005).
In State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div.
1992), this court acknowledged that a guilty plea "generally
constitutes a waiver of all issues which were or could have been
addressed by the trial judge before its entry." We further
acknowledged that a conditional plea may be entered only with
the court's approval and the consent of the prosecutor. Id. at
304 (citations omitted). Notwithstanding, we held that
adherence to the requirements of Rule 3:9-3(f) "would result in
an injustice." Ibid. (quoting R. 1:1-2).
In Gonzalez, the defendant pled guilty to a school zone
drug offense and later sought to withdraw her plea. She also
challenged the constitutionality of the operative statute's
mandatory sentence on separation of powers grounds. We noted
6 A-1569-13T3 that although Gonzalez did not enter a conditional plea, we
considered her argument:
because it relates in part to sentencing, notwithstanding the specifics of the plea agreement. Further, it would be unfair under the circumstances presented to require defendant to forego the benefit of the plea agreement in order to raise this important question.
[Ibid. (internal citation omitted).]
As in Gonzalez, this matter involves the issue of mandatory
sentencing and, more particularly, whether the decision by the
prosecutor not to seek a waiver was an abuse of discretion.
While concededly the procedural history before the trial court
does not snuggly fit the procedural paradigm for appellate
review, we conclude, as we did in Gonzalez, that strict
adherence to the applicable rules "would result in an
injustice." R. 1:1-2. To be sure, it would be inherently
unfair to allow the legitimacy of a blanket denial of
defendant's discovery request to stand without judicial
scrutiny. Absent our review, defendant's opportunity to
challenge the decision by the prosecutor not to seek a waiver or
to produce discovery would be eviscerated.
It would have been preferable had the appeal been taken
from an order or final judgement, or had defendant reserved his
right to appeal based upon a conditional plea. However,
7 A-1569-13T3 predicated upon the "interest of justice" rationale noted above,
as well as that the parties have thoroughly briefed and argued
the issue before us, we choose to resolve the issue on the
merits.
Defendant argues the Middlesex County Prosecutor abused his
discretion by failing to keep records of prior Graves Act case
waivers. Pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), any
person convicted of the unlawful possession of a firearm,
N.J.S.A. 2C:39-5(b), "shall be sentenced to a term of
imprisonment . . . ." At all times relevant to the facts in
this case, the Graves Act further required that "[t]he term of
imprisonment shall include the imposition of a minimum term[,] .
. . fixed at, or between, one-third and one-half of the sentence
imposed by the court or three years, whichever is greater . . .
during which the defendant shall be ineligible for parole."
N.J.S.A. 2C:43-6(c). The "escape valve" provision of N.J.S.A.
2C:43-6.2 states:
that where a defendant has not been previously convicted of a Graves Act offense, and where the . . . mandatory minimum "does not serve the interests of justice," the prosecutor may move before the Assignment Judge for a reduced mandatory minimum term of one year, or to place the defendant on probation with the condition of a jail term pursuant to N.J.S.A. 2C:43- 2(b)(2).
8 A-1569-13T3 [State v. Watson, 346 N.J. Super. 521, 535 (App. Div. 2002), certif. denied, 176 N.J. 278 (2003).]
We have previously held that, if the prosecutor does not
consent to a defendant's request to be sentenced pursuant to the
escape valve provision of N.J.S.A. 2C:43-6.2, "the defendant may
[appeal the denial of the waiver] by arguing to the Assignment
Judge that the prosecutor's refusal is a patent and gross abuse
of discretion." Ibid.; see also State v. Alvarez, 246 N.J.
Super. 137, 147 (App. Div. 1991).
In Alvarez, we concluded that the Graves Act escape valve
was "constitutional because the Assignment Judge has the
ultimate authority to decide whether the prosecutor arbitrarily
or unconstitutionally discriminated against a defendant in
determining whether the 'interests of justice' warrant reference
to the Assignment Judge." Id. at 147.
The Attorney General Directive to Ensure Uniform
Enforcement of the "Graves Act," ("Directive") published on
October 23, 2008 and corrected on November 25, 2008, pursuant to
sections "d" (Memorialization of Reasons) and "e" (Data
Reporting to Attorney General) stated:
The prosecuting agency shall document in the case file its analysis of all of the relevant aggravating and mitigating circumstances, whether or not the agency moves for or approves a waiver or reduction pursuant to N.J.S.A. 2C:43-6.2.
9 A-1569-13T3 Furthermore, where the prosecuting agency is seeking or approving a probationary sentence, the memorialization of reasons must explain why the imposition of a one— year term of imprisonment and parole ineligibility would constitute a serious injustice that overrides the need to deter others from unlawfully possessing firearms. A copy of all case-specific memorializations required by this Section shall also be maintained in a separate cumulative file in order to facilitate such audits as the Attorney General may from time-to-time direct to ensure the proper and uniform implementation of this Directive. The case file and cumulative audit file shall also document the information sources consulted to determine whether the defendant might be subject to the aggravating sentencing factor set forth in N.J.S.A. 2C:44-1a(5) (substantial likelihood that the defendant is involved in organized criminal activity).
. . . .
On a quarterly basis, each prosecuting agency shall report to the Attorney General the following information, on a form or in a manner as may be prescribed by the Director of the Division of Criminal Justice, in order to permit the Attorney General to monitor the implementation and effects of this Directive:
the number of pre-indictment and post- indictment pleas where the prosecutor moved for or approved a waiver or reduction of the minimum term;
the number of trials, and trial results, and[;]
such other information that the Director of the Division of Criminal Justice determines is relevant to the Attorney General's monitoring and oversight responsibilities.
10 A-1569-13T3 In order to prevail on an Alvarez motion, "a defendant must
make a showing that 'the prosecutor arbitrarily or
unconstitutionally discriminated against a defendant in
determining whether the "interests of justice" warrant reference
to the Assignment Judge' for sentencing under the 'escape
valve.'" State v. Mastapeter, 290 N.J. Super. 56, 65 (App.
Div.) (citation omitted), certif. denied, 146 N.J. 569 (1996).
The very essence of discrimination is disparate treatment.
In the Directive, the Attorney General specifically noted that
the procedures and criteria set forth in governing a decision on
waiver "are intended to ensure statewide uniformity in the
exercise of prosecutorial discretion in implementing N.J.S.A.
2C:43-6.2." We interpret the Directive's required
memorialization of reasons by the prosecuting agency as a means
to ensure that waiver decisions are not disparate and not
dependent upon the venue where the Graves offense is prosecuted,
as in a prior plea policy that was met with our Supreme Court's
disapproval. See State v. Brimage, 153 N.J. 1 (1998).
Here, without knowing what aggravating or mitigating
factors the prosecutor considered (required by the Directive),
without a written explanation for the denial (other than the
opposition to the motion), and without provision of other waiver
case files (required by the Directive), defendant was severely
11 A-1569-13T3 disadvantaged in meeting his Alvarez burden. Moreover, given
these circumstances, no informed judicial determination of the
motion could be made.
In resolution of this quandary, we hold that, as in
prosecutorial decisions relating to applications for Pre-Trial
Intervention, the prosecutor must provide written reasons for
withholding consent to a waiver in order to promote procedural
fairness and to ensure meaningful judicial review. See State v.
Nwobu, 139 N.J. 236 (1995); State v. Atley, 157 N.J. Super. 157
(App. Div. (1978).
We next address defendant's plea and sentence – neither of
which he specifically argues as a basis for reversal. Here,
defendant was faced with a dilemmatic choice. He could pursue
the Alvarez motion which, given the denied discovery and without
knowing the precise reasons for denial of the waiver, would have
made a successful outcome unlikely. Or, he could accept the
plea. Since we are persuaded that defendant was denied a full
and fair opportunity to pursue the motion by the position taken
by the prosecutor, his resolution of the dilemma by his plea and
resultant sentence must be vacated.
Having reached our decision, we are impelled to remand for
further proceedings on the Alvarez motion before the Assignment
12 A-1569-13T3 Judge.3 Upon remand, defendant may renew his request for
discovery of other case files relative to waiver decisions by
the prosecutor. Should the prosecutor maintain his position
that there are no records responsive to the request, the judge
may consider, in light of the Directive, whether an adverse
inference should be drawn in the determination of the
prosecutor's waiver decision. Further, consistent with our
holding, the prosecutor shall be required to provide, in
writing, the reasons for his waiver decision. We leave it to
the judge to decide whether an evidentiary hearing would be
required. We add that in reversing and remanding, we express no
view as to the merits of defendant's motion.
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
3 In a Memorandum dated November 21, 2008, the Acting Administrative Director of the Courts, at the direction of the Chief Justice, clarified that while statutory language indicates that motions for waiver of, or reductions to, the otherwise mandatory minimum terms of imprisonment or parole ineligibility required pursuant to the Graves Act are to be made by the Prosecutor to the Assignment Judge, that responsibility is delegable by the Assignment Judge to the Criminal Presiding Judge, pursuant to inherent authority and the Rules of Court. Although not specifically referenced in the Memorandum, we presume that the responsibility for sentencing may also be delegated to the Criminal Presiding Judge. R. 1:33-6(a).
13 A-1569-13T3