STATE OF NEW JERSEY VS. ABNER RODRIGUEZ (19-06-0986, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 25, 2021
• Docket: A-3586-19T4
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3586-19T4

STATE OF NEW JERSEY,

Plaintiff-Appellant, APPROVED FOR PUBLICATION January 25, 2021 v. APPELLATE DIVISION

ABNER RODRIGUEZ,

Defendant-Respondent. ________________________

Submitted December 14, 2020 – Decided January 25, 2021

Before Judges Fasciale, Mayer, and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 19- 06-0986.

Yolanda Ciccone, Middlesex County Prosecutor, attorney for appellant (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

Law Office of Jarred S. Freeman, LLC, attorney for respondent (Jarred S. Freeman, of counsel and on the brief).

The opinion of the court was delivered by

SUSSWEIN, J.A.D. By leave granted, the State appeals from the June 22, 2020 Law Division

order granting defendant's motion to overrule the prosecutor's rejection of his

request for a Graves Act 1 waiver pursuant to N.J.S.A. 2C:43-6.2. That statute

"embodies the so called 'escape valve' to the mandatory sentence requirements

otherwise embodied in the Graves Act." State v. Alvarez, 246 N.J. Super. 137,

139 (App. Div. 1991). We conclude that defendant failed to establish that the

prosecutor's rejection of his request for a Graves Act waiver constituted a

patent and gross abuse of discretion. We therefore are constrained to vacate

the Law Division order granting a Graves Act waiver.

I.

We begin by recounting the pertinent facts and procedural history,

recognizing that because this case comes to us before trial or any evidentiary

hearings, the record is sparse. On March 29, 2019, police were preparing to

execute a search of defendant and his residence pursuant to a duly issued

warrant. The probable cause for the search warrant was predicated on three

"controlled buys" of controlled dangerous substances (CDS). Before the

1 The "Graves Act" is named for Senator Francis X. Graves, Jr., who sponsored legislation in the early 1980s that imposed a mandatory minimum term of imprisonment and parole ineligibility on defendants convicted of certain predicate crimes committed while in possession of a firearm. P.L. 1981, c. 31. (N.J.S.A. 2C:43-6(c)). The term "Graves Act" now refers to all firearms offenses that carry a mandatory minimum sentence. See note 10, infra. A-3586-19T4 2 officers could execute the search warrant, defendant entered a car operated by

Luis Quiles, who police had previously identified as a drug dealer. 2 The

vehicle sped off when the officers approached it. During the ensuing motor

vehicle pursuit, police observed unknown items tossed from the passenger side

window. Those items were later recovered and identified as plastic bags

containing approximately eighteen grams of cocaine. 3 After the vehicle

stopped, defendant exited and was eventually apprehended.

When police searched defendant's person, they discovered a plastic bag

containing a white powdery substance believed to be cocaine and house keys

to the residential property identified in the search warrant. Police also

searched the vehicle and found $300 in cash and twenty-six prescription pills.

The search of defendant's residence pursuant to the warrant revealed additional

evidence, including two plastic bags that each contained a gram of suspected

cocaine, a bag of marijuana, a digital scale, a box containing empty plastic

2 Quiles, who was indicted as a codefendant, is not a party to this appeal. 3 We note that eighteen grams of cocaine exceeds the one-half-ounce threshold for a second-degree crime under N.J.S.A. 2C:35-5(b)(2).

A-3586-19T4 3 bags, a .22 caliber rifle, and sixty-four hollow-point bullets. 4 The police later

determined the rifle was stolen.

Defendant was charged in a Middlesex County indictment with eight

counts:5 third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); second-

degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

(b)(2); third-degree possession of CDS with intent to distribute on or near

school property, N.J.S.A. 2C:35-7; fourth-degree tampering with evidence,

N.J.S.A. 2C:28-6(1); third-degree financial facilitation of criminal activity

(money laundering), N.J.S.A. 2C:21-25(a); second-degree possession of a

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); second-degree

possession of a firearm while in the course of committing a drug

distribution/possession with intent to distribute crime, N.J.S.A. 2C:39-4.1; and

third-degree receiving stolen property, N.J.S.A. 2C:20-7.

The charges for violation of N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:39-4.1

are designated as Graves Act offenses under N.J.S.A. 2C:43-6(c) and carry a

mandatory term of parole ineligibility fixed at forty-two months. By letter

4 The record before us does not indicate whether the hollow-point bullets matched the caliber of the rifle or were for another firearm. 5 The trial court's June 22, 2019 opinion states that defendant was indicted on fourteen counts. Our review of the indictment shows that only codefendant Quiles was charged in counts nine to fourteen. A-3586-19T4 4 dated May 28, 2019, defendant asked the prosecutor to file a motion for a

waiver of the mandatory minimum Graves Act sentence pursuant to N.J.S.A.

2C:43-6.2. In support of that request, defendant attached character reference

letters from his employer, family, and friends.

In an October 16, 2019 written response, the prosecutor rejected

defendant's request for a Graves Act waiver. In that letter, the prosecutor

outlined the charges that defendant faced and recounted the circumstances of

his arrest, highlighting the multiple controlled buys, the motor vehicle pursuit,

the attempted spoliation of evidence thrown from the fleeing vehicle, and the

evidence found in defendant's home. The prosecutor acknowledged that

defendant had minimal prior contact with the criminal justice system

consisting of a single pretrial diversion in 1990. After identifying and

weighing the applicable aggravating and mitigating circumstances set forth in

N.J.S.A. 2C:44-1 (a) and (b),6 the prosecutor concluded that the interests of

justice would not be served by waiving the mandatory minimum sentence.

6 As we discuss more fully later in this opinion, the Attorney General has issued a directive that channels the exercise of prosecutorial discretion when deciding whether a Graves Act mandatory minimum sentence should be waived pursuant to N.J.S.A. 2C:43-6.2. See Directive to Ensure Uniform Enforcement of "Graves Act” (Oct. 23, 2008, as corrected Nov. 25, 2008) (Attorney General Directive). That Directive instructs prosecutors to "consider all relevant circumstances concerning the offense conduct and the A-3586-19T4 5 Defendant moved before the trial court to overrule the State's rejection

of his request for a Graves Act waiver. The State filed a letter brief amplifying

the reasons for its decision. The trial court conducted oral argument on

defendant's motion on December 20, 2019. On January 9, 2020, the trial court

issued an order and written opinion overruling the prosecutor's decision and

granting a waiver of the Graves Act mandatory sentence. The court found the

State had patently and grossly abused its discretion in refusing to grant

defendant's waiver request. The court thus concluded the interests of justice

would not be served by imposing the forty-two-month mandatory minimum

sentence.

In reaching this conclusion, the trial court found the State provided no

support for its contention that defendant's lack of prior criminal history was

outweighed by defendant's possession of a firearm in furtherance of his drug

dealing. In discounting the weight the prosecutor accorded to the offense

conduct, the court reasoned that the firearm was not on defendant's person but

rather was found in his bedroom away from any CDS, and there was "no

evidence to support the conclusion that [d]efendant possessed the firearm in

further[ance] of his 'drug dealing,' as the State suggest[ed]." Additionally, the

(continued) offender, including those aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1." Id. at 12. A-3586-19T4 6 court reasoned that the firearm in question, a .22 Remington rifle with scope,

was not the sort of firearm typically associated with drug dealing. The court

also rejected the prosecutor's contention that defendant was in possession of

the eighteen grams of cocaine discarded from the vehicle, reasoning that the

driver was a known drug dealer and that only two grams of cocaine were found

in defendant's home.

The trial court also disagreed with the prosecutor's contention there was

a significant risk that defendant would re-offend, highlighting defendant

lacked a significant criminal history and that he was forty-nine years old with a

family, gainfully employed, and not designated as a "certain person." 7

Furthermore, "[t]o aid in its analysis, the court look[ed] to [three]

factually similar cases in which Graves waivers have been granted by the State

in this county." The trial court stated, "[i]n consideration of the factual

similarities of the above cases to the instant case as well as the Attorney

General's Directive, which demands 'statewide uniformity in the exercise of

prosecutorial discretion in implementing' the Act, the [c]ourt finds that the

State's decision not to seek a Graves Waiver was arbitrary and capricious."

7 The term "certain person" refers to a person charged with a violation of N.J.S.A. 2C:39-7, which prohibits the possession of a firearm by a person who has previously been convicted of a crime listed in the statute. We note a defendant charged with N.J.S.A. 2C:39-7 is not eligible for a Graves Act waiver under N.J.S.A. 2C:43-6.2. A-3586-19T4 7 Considering both its review of the prosecutor's assessment of

aggravating and mitigating circumstances and its comparison of the three other

Middlesex County cases where the prosecutor granted Graves Act waivers, the

trial court concluded that the prosecutor's decision to reject defendant's request

for a Graves Act waiver was "grossly arbitrary, capricious, or an abuse of

discretion."

On May 21, 2020, we granted the State's motion for leave to appeal and

summarily vacated the trial court's order granting a Graves Act waiver. We

remanded to the trial court for reconsideration "without reference to the

anecdotal information about [the three other cases mentioned] in the trial

court's original determination." Pursuant to our order, the trial court scheduled

a reconsideration hearing for June 16, 2020.

On June 15, 2020, another panel of this court issued an opinion in State

v. Andrews, 464 N.J. Super. 111 (App. Div. 2020). We held in Andrews that

the comparative analysis the trial court conducted—examining past cases

where the prosecutor had granted Graves Act waivers—is a legitimate

component of the robust judicial review needed to ensure that a prosecutor's

rejection of a Graves Act waiver does not "'demonstrate arbitrariness

constituting an unconstitutional discrimination or denial of equal protection.'"

Id. at 120, 123 (quoting State v. Benjamin, 228 N.J. 358, 372 (2017)).

A-3586-19T4 8 On the same day we issued our opinion in Andrews, we vacated the

portion of our remand order directing the trial court to reconsider its decision

without reference to the three other Middlesex County cases.

At the reconsideration hearing on June 16, 2020, the trial court permitted

the prosecutor an opportunity, through oral argument, to distinguish the three

Middlesex County cases that had been cited by the court in its January 9

opinion. We summarize the prosecutor's arguments as follows:

In State v. Olivares, Indictment No. 16-06-1040, police executed a

search warrant of the residence Olivares shared with two codefendants. Police

found a handgun and a loaded 9mm extended magazine. They also found a

9mm bullet inside a chest, as well as heroin and drug paraphernalia. Olivares

was known to be affiliated with a gang. He had one prior juvenile diversion

and one prior municipal court conviction.

The prosecutor distinguished the present case by highlighting Olivares's

willingness to accept responsibility for his conduct by pleading guilty. The

prosecutor also noted that Olivares was not the target of the search warrant;

rather, his two housemates were. Police found the firearm and contraband in a

common area of the house. The police found only marijuana on Olivares's

person. The prosecutor stressed that Olivares was the least culpable of the

A-3586-19T4 9 three defendants who pled guilty and that Olivares's codefendants pled guilty

to possession of the gun and drugs.

In State v. Moses, Indictment No. 17-10-1191-I, police responded to a

report of three individuals smoking marijuana. The officers observed Moses

and his companions standing on the front steps of the apartment building in

which Moses resided. Apparently startled by the officers' arrival, Moses

started to walk away but was ordered to halt and he complied. Police found a

loaded handgun on his person, which they later discovered had been reported

stolen. Moses had two prior municipal court convictions for CDS possession.

Moses claimed he possessed the gun for "self-protection."

The prosecutor explained the Graves Act waiver decision was premised

on an assessment of the likelihood that Moses would be convicted at trial. The

prosecutor highlighted that Moses was standing on the front steps of his

apartment building when he was arrested, and noted had Moses been standing

just three feet away he would have been within his own home and would have

been exempt from criminal liability for possessing the weapon. More

importantly, the prosecutor also noted the waiver was part of a plea agreement.

A-3586-19T4 10 In State v. Miller, Indictment No. 15-07-803, the defendant ran from

police when they approached to execute an outstanding arrest warrant. 8 The

police chased Miller to his apartment, where they found a single bag of crack

cocaine, a .38 caliber revolver loaded with six hollow-point bullets, drug

paraphernalia, and $2,856 in cash. A subsequent search of the apartment

resulted in the discovery of a scale, fifty-two clear zip-lock baggies, and a

measuring cup with cocaine residue. Defendant had a prior third-degree CDS

possession conviction.

The prosecutor acknowledged Miller had a prior criminal record and that

the handgun was found in a puffy vest he had been wearing during the foot-

chase, indicating that he had carried the handgun on his person. The

prosecutor nonetheless distinguished the present case by noting Rodriguez was

the target of an ongoing narcotics investigation and police had a search warrant

based on probable cause to believe that his house was being used for drug

distribution purposes. Furthermore, the prosecutor argued Rodriguez

obstructed the execution of the search warrant not only by fleeing in a motor

vehicle but also by discarding evidence, and the amount of CDS involved was

far more than was contained in the single bag of crack cocaine found in

Miller's possession.

8 The record does not indicate why the arrest warrant had been issued. A-3586-19T4 11 On June 22, 2020, the trial court issued a new written order and opinion

granting a Graves Act waiver. This second opinion repeated much of the

reasoning set forth in the trial court's original opinion. The court, citing

Andrews, stated simply that "[t]his [c]ourt is not persuaded by the State's

proffered factual distinctions between those cases and the case at hand such

that they warrant different treatment in granting of a Graves [w]aiver and,

ultimately, sentencing." The court did not provide specific reasons why the

distinctions proffered by the prosecutor were insufficient.

II.

We next turn our attention to the history of the Graves Act and the legal

principles governing the imposition—and waiver—of its stern sentencing

provisions. "Enacted in 1981 as 'a direct response to a substantial increase in

violent crime in New Jersey,' the Graves Act is intended 'to ensure

incarceration for those who arm themselves before going forth to commit

crimes.'" State v. Nance, 228 N.J. 378, 390 (2017) (quoting State v. Des

Marets, 92 N.J. 62, 68 (1983)). "Underlying this statute is a legislative intent

to deter individuals from committing firearm-related crimes by calling for a

mandatory minimum term of imprisonment for those convicted of Graves Act

offenses." Benjamin, 228 N.J. at 367 (quoting Des Marets, 92 N.J. at 71).

A-3586-19T4 12 From the start, the Supreme Court took steps to ensure strict adherence

to the mandatory minimum sentencing framework adopted by the Legislature.

On April 27, 1981, Chief Justice Wilentz issued a memorandum "to ensure that

mandatory prison terms pursuant to N.J.S.A. 2C:43-6(c), the Graves Act, were

imposed in accordance with the Legislature's intent." Administrative Directive

#09-18, "Guidelines for Downgrading/Dismissals Under the Graves Act: Strict

Enforcement of Mandatory Minimum Custodial Terms for Offenses Involving

Firearms" (July 2, 2018) (describing Administrative Directive #10-80,

"Sentencing Guidelines for Dismissals Under the Graves Act" (April 27,

1981)) (AOC Directive #09-18).9 As part of that memorandum, the Chief

Justice promulgated guidelines setting forth the limited circumstances when a

judge may approve a negotiated plea involving dismissal of an offense

carrying a mandatory custodial term.

As originally enacted, the Graves Act applied to all defendants convicted

under N.J.S.A. 2C:39-4(a), which prohibits possession of a gun with intent to

use it against the person or property of another. In 1982, N.J.S.A. 2C:43-6(c)

9 The 1981 Directive #10-80 was superseded by the 2018 Directive #09-18 because of new amendments to the referenced offenses and the mandatory custodial terms. The updated directive makes clear that "the overall purposes in that [earlier] directive are still applicable" and that the guidelines in 1981 Directive #10-80 explaining when a trial judge may accept a negotiated plea involving a dismissal of a Graves Act offense remain in effect. 2018 Directive #09-18, at 1–2. A-3586-19T4 13 was amended to apply upon conviction under N.J.S.A. 2C:39-4(a) only when

the defendant intends to use the gun against a person. L. 1982, c. 119, § 1

(codified at N.J.S.A. 2C:43-6). See also N.J.S.A. 2C:43-6.1 (permitting

resentencing of a person sentenced under the Graves Act for a firearms

conviction under N.J.S.A. 2C:39-4(a) based on the use of a firearm against the

property of another). The 1982 amendment "was passed to avoid what the

Legislature apparently concluded was undue severity in applying the Graves

Act under those circumstances." Des Marets, 92 N.J. at 79, n.16.

In 1989, the Legislature enacted N.J.S.A. 2C:43-6.2 to "mitigate the

undue severity that might accompany the otherwise automatic application of

the mandatory minimum sentence under the Graves Act[.]" Benjamin, 228

N.J. at 368. This statute authorizes 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. Specifically,

N.J.S.A. 2C:43-6.2 provides:

On a motion by the prosecutor made to the assignment judge that the imposition of a mandatory minimum term of imprisonment under [the Graves Act] for a defendant who has not previously been convicted of [a Graves Act] offense . . . does not serve the interests of justice, the assignment judge shall place the defendant on probation pursuant to [N.J.S.A. 2C:43–2(b)(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 A-3586-19T4 14 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.

The relief afforded by section N.J.S.A. 2C:43-6.2 arises in two ways.

The prosecutor can make a motion to the assignment judge for a waiver of the

mandatory minimum penalty. Alternatively, the sentencing judge may refer

the matter to the assignment judge if the prosecutor approves the referral. In

either procedure, the prosecutor must approve the waiver before the

assignment judge is authorized to impose one of the two reduced penalties.

Benjamin, 228 N.J. at 368–69.

In State v. Alvarez, we addressed whether this delegation of de facto

sentencing authority to the prosecutor violates the separation of powers

doctrine. 246 N.J. Super. 137 (App. Div. 1991). Judge Edwin H. Stern aptly

recognized that because "there is the prospect of discriminatory decisions, and

because we construe the statute as imposing a prosecutorial standard, 'we

cannot imagine that the Legislature meant to oust the courts of the right and

opportunity to examine whether such a decision exceeds the permitted

'prosecutorial influence on the sentencing determination'." Id. at 148 (quoting

State v. Todd, 238 N.J. Super. 445, 461–462 (App. Div. 1990)). We concluded

that the waiver statute is constitutional "because the Assignment Judge has the A-3586-19T4 15 ultimate authority to decide whether the prosecutor arbitrarily or

unconstitutionally discriminated against a defendant in determining whether

the interests of justice warrant referral to the Assignment Judge." Id. at 147.

Alvarez adopted the patent and gross abuse of discretion standard of

judicial review that applies to the review of a prosecutor's decision to admit a

defendant to pretrial intervention (PTI). Id. at 147–48. See also State v.

Leonardis, 73 N.J. 360, 370 (1977). The Supreme Court has since confirmed

that a prosecutor's decision under N.J.S.A. 2C:43-6.2 is reviewed under this

highly deferential standard. Benjamin, 228 N.J. at 364 (a defendant may

"appeal the denial of [the Graves Act] waiver to the assignment judge upon a

showing of patent and gross abuse of discretion by the prosecutor."). The

Supreme Court had previously defined the patent and gross abuse of discretion

standard as one in which the defendant must demonstrate that "the prosecutor's

decision failed to consider all relevant factors, was based on irrelevant or

inappropriate factors, or constituted a 'clear error in judgment.'" State v.

Nwobu, 139 N.J. 236, 247 (1995) (citing State v. Bender, 80 N.J. 84, 93

(1979)). The Nwobu Court emphasized that a reviewing court applying this

deferential standard does not have the authority to substitute its own discretion

for that of the prosecutor. Id. at 253.

A-3586-19T4 16 In 2007, the Legislature amended N.J.S.A. 2C:43-6(c), greatly

expanding the reach of the Graves Act. See L. 2007, c. 341 (codified at

N.J.S.A. 2C:43-6). Before this expansion, the Graves Act applied only when a

person was convicted of possessing or using a firearm while in the course of

committing certain predicate crimes or possessing a firearm for an unlawful

purpose in violation of N.J.S.A. 2C:39-4(a). The revised statute 10 imposed a

Graves Act mandatory minimum sentence for anyone convicted of unlawful

possession of a firearm, regardless whether the defendant was concurrently

committing another crime or had a purpose to use the firearm unlawfully. The

"simple" unlawful possession offense in N.J.S.A. 2C:39-5 was not only added

10 The Graves Act now applies to a defendant who has been convicted of one of the following offenses: possession of a sawed-off shotgun or defaced firearm, N.J.S.A. 2C:39-3(b), (d); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); possession of a firearm while in the course of committing a drug distribution/possession with intent to distribute crime or bias crime, N.J.S.A. 2C:39-4.1(a); unlawful possession of a machine gun, handgun, rifle or shotgun, or assault firearm, N.J.S.A. 2C:39-5(a), (b), (c), (f); certain persons not to have weapons, N.J.S.A. 2C:39-7(a), (b)(2), (b)(3); and manufacture, transport, disposition and defacement of machine guns, sawed - off shotguns, defaced firearms, or assault firearms, N.J.S.A. 2C:39-9(a), (b), (e), (g). N.J.S.A. 2C:43-6(c). The Graves Act also applies to a defendant who "used or was in possession of a firearm" while in the course of committing, attempting to commit, or fleeing from the following crimes: murder, N.J.S.A. 2C:11-3; manslaughter, N.J.S.A. 2C:11-4; aggravated assault, N.J.S.A. 2C:12-1(b); kidnapping, N.J.S.A. 2C:13-1; aggravated sexual assault, N.J.S.A. 2C:14-2(a); aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); robbery, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; and escape, N.J.S.A. 2C:29-5. N.J.S.A. 2C:43-6(c). A-3586-19T4 17 to the Graves Act list but also was upgraded from a third-degree crime to a

second-degree crime. Prior to this revision, most persons charged with simple

possession of a firearm—the most commonly charged gun offense—were

entitled upon conviction to a presumption of non-incarceration, i.e., probation,

pursuant to N.J.S.A. 2C:44-1(e). Under the revised statute, those persons are

subject to both the mandatory minimum sentencing provisions of the Graves

Act and the presumption of imprisonment that applies to second-degree

convictions pursuant to N.J.S.A. 2C:44-1(d). The 2007 amendment also added

N.J.S.A. 2C:39-4.1 (possession of a firearm while in the course of committing

a drug distribution/possession with intent to distribute crime) to the list of

Graves Act offenses. L. 2007, c. 341, § 5. In addition to expanding the scope

of the Graves Act by significantly increasing the number of gun offenders

subject to a mandatory minimum sentence, the 2007 amendment increased the

mandatory minimum term of parole ineligibility from three years to forty -two

months. Ibid.

The significant expansion of the Graves Act and resultant strengthening

of our gun laws prompted the Attorney General to issue a statewide directive

to police and prosecutors in October 2008. See note 6, supra. The Attorney

General Directive was issued "[t]o ensure statewide uniformity in the

enforcement of the Graves Act, and to provide reasonable incentives for guilty

A-3586-19T4 18 defendants to accept responsibility by pleading guilty in a timely manner so as

to maximize deterrence by ensuring the swift imposition of punishment."

Attorney General Directive at 4. The Directive channels the exercise of a

prosecutor's plea-bargaining discretion, thereby addressing the separation-of-

powers concerns raised in Alvarez. Recognizing the trial court system might

be overwhelmed unless the significantly expanded number of Graves Act

offenders were provided incentive to waive their right to a jury trial by

pleading guilty, the Directive instructs prosecutors to tender a "standardized"

plea offer that invokes N.J.S.A. 2C:43-6.2 to reduce the term of parole

ineligibility to one year. Id. at 13. That standardized offer must be tendered

"unless the prosecuting agency determines that the aggravating factors

applicable to the offense conduct and offender outweigh any applicable

mitigating circumstances," or "unless the prosecuting agency determines that a

sentence reduction to a one-year term of parole ineligibility would undermine

the investigation or prosecution of another." Ibid.

As we have mentioned in note 6, supra, the Attorney General Directive

provides

[i]n determining whether to move for or approve the waiver or reduction of the minimum term of parole ineligibility pursuant to N.J.S.A. 2C:43-6.2, the prosecuting agency shall consider all relevant circumstances concerning the offense conduct and the offender, including those aggravating and mitigating A-3586-19T4 19 circumstances set forth in N.J.S.A. 2C:44-1. The prosecuting agency may also take into account the likelihood of obtaining a conviction at trial.

[Id. at 12.]

The Directive further requires the prosecutor to "document in the case

file its analysis of all 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." Id. at 13. The Directive instructs "[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." Id. at 14.

In Benjamin, the Supreme Court concluded that sufficient procedural

safeguards were in place to protect a defendant's right to challenge the denial

of a Graves Act waiver. 228 N.J. at 371–73. The Court noted "[a]ll case-

specific files should contain a statement of reasons which, upon a defendant's

Alvarez motion, the assignment judge may consider in assessing the

prosecutor's conduct, as the statement will show the prosecutor's reasons not to

grant a waiver for a particular defendant." Id. at 373. The Court explained

that prosecutors are "guided by standards, inform defendants of the basis for

their decisions, and are subject to judicial oversight." Ibid. "This judicial

A-3586-19T4 20 backstop," the Court concluded, "ensures that prosecutorial discretion is not

unchecked because the assignment judge retains 'ultimate authority' to review

the prosecutor's waiver decisions for arbitrariness and discrimination." Ibid.

(citing Alvarez, 246 N.J. Super. at 146–47).

Although the prosecutor must provide a defendant with a statement of

reasons for denying his or her request for a Graves Act waiver, id. at 361, the

Court held that a defendant is not entitled to discovery of the prosecution's

files for cases in which Graves Act waivers have been granted to other

defendants. Ibid. This brings us to our recent decision in Andrews.

The trial court in that case compiled the statements of reasons the

prosecutor had issued to other defendants in Middlesex County. Using that

compendium as a reference resource, the trial court identified three cases

involving other defendants who appeared to be similarly situated to Andrews

but were granted a waiver. The prosecutor challenged that comparative

methodology, asserting on appeal "the trial court's review of the prosecutor's

Graves Act waiver decision is limited to the case before it for review and does

not extend to other similarly-situated defendants." Andrews, 464 N.J. Super.

at 122. We rejected the State's contention, highlighting that its position in

Andrews was markedly different from the approach the State had taken in

Benjamin, where "the State stressed[d] that because all waiver applications . . .

A-3586-19T4 21 pass through the assignment judge, that judge is in the 'best position' to

identify discriminatory practices." Id. at 122–23 (quoting Benjamin, 228 N.J.

at 366). We held that although Benjamin does not afford a defendant the right

to discovery of the statements of reasons prepared in other cases, judges are

not prohibited "from maintaining those files and relying on them in evaluating

'the prosecutor's waiver decisions for arbitrariness and discrimination.'" Id. at

123 (quoting Benjamin, 228 N.J. at 373). We also noted that in his dissenting

opinion in Benjamin, Justice Albin commented "[n]othing prevents the

judiciary from maintaining [the statements of reasons filed with the assignment

judge in other waiver cases] in a central file so that historical information will

be available to . . . assignment judges." Ibid. (quoting Benjamin, 228 N.J. at

377–78) (Albin, J., dissenting) (alterations in original).

Importantly, we held in Andrews the trial court's "robust review and

analysis were sound, and fulfilled the role contemplated in Benjamin to

'ensure[] that prosecutorial discretion is not unchecked.'" 11 Id. at 124 (quoting

Benjamin, 228 N.J. at 373) (alteration in original). We thus accepted the

11 In Benjamin, the Supreme Court recognized that in the context of PTI where the prosecutor similarly exercises significant discretion, "the defendant [claiming disparate treatment] could not prevail merely because she could show that the prosecutor approved PTI for others 'charged with similar offenses.'" 228 N.J. at 374 (quoting State v. Sutton, 80 N.J. 110, 120 (1979)). "Rather, the defendant needed to prove that she received 'less favorable treatment than identically situated individuals.'" Ibid. A-3586-19T4 22 validity and utility of a review process in which the trial court compares the

present waiver decision with selected other cases where the prosecutor reached

a different conclusion.

Aside from contesting the validity of this form of selective enforcement

analysis, the prosecutor in Andrews argued that its application in that

particular instance was "fatally flawed" because "the prosecutor was

unfamiliar with those unrelated cases" and "was not given a meaningful

opportunity to address the court's concerns based on its comparisons." Id. at

123. We rejected the prosecutor's procedural arguments, noting that because

the prosecutor had prepared the statements of reason the trial court compiled

and relied upon, the prosecutor had access to all case-specific

memorializations. Ibid. Importantly, we also noted the prosecutor in that case

had not requested an opportunity to address the trial court's specific concerns.

Id. at 124.

The State in Andrews remained steadfast in its fundamental opposition

to the comparative review methodology employed by the trial court. The

prosecutor thus apparently made a strategic decision not to offer specific

explanations to distinguish the other cases cited by the trial court. We

emphasized in Andrews that despite the State's argument that the three cases

relied on by the trial court were "poor candidates for comparison" and the trial

A-3586-19T4 23 court's analysis was "cursory," on appeal the State never moved for

reconsideration nor offered any substantive basis for its "bald conclusions."

Id. at 124. We thus determined the prosecutor "failed to respond to the trial's

concerns," id. at 123, leading us to affirm the trial court's grant of a Graves Act

waiver. See Nwobu, 139 N.J. at 247 (holding that a prosecutor's failure to

consider all relevant factors constitutes a patent and gross abuse of

prosecutorial discretion).

III.

The gravamen of our decision in Andrews is that a prosecutor's disparate

treatment of similarly situated defendants can be a relevant consideration as

part of the judicial review of a prosecutor's decision to deny a Graves Act

waiver. We refer to this approach as the comparative analysis methodology.

In stark contrast to the position taken by the State in Andrews, in this appeal

the State does not argue that a trial court's review of a prosecutor's Graves Act

waiver decision must focus solely on the case before it. 12

Under the analytical paradigm embraced in Andrews, when a trial court

identifies other cases where it appears similarly situated defendants were

granted a Graves Act waiver, the prosecutor must explain why those other

12 We note the prosecuting agency in Andrews is also the prosecuting agency in the present case. The prosecutor did not seek leave to appeal our published decision in Andrews. A-3586-19T4 24 defendants were not similarly situated to the defendant at bar. Andrews, 464

N.J. Super. at 121, 123. This may be done by identifying specific facts and

circumstances about the offense conduct, offender's background, plea

negotiation status, likelihood of obtaining a conviction at trial, or other

relevant circumstances that distinguish those other cases from the present one.

See Attorney General Directive at 12 (outlining relevant factors that a

prosecutor may consider in granting or denying a Graves Act waiver). The

failure to respond to the trial court's concerns, as in Andrews, thus permits the

court to conclude that the prosecutor acted arbitrarily, constituting a patent and

gross abuse of discretion. Andrews, 464 N.J. Super. at 124. In practical

effect, Andrews applied a form of the so called "burden shifting template" used

in selective enforcement litigation. In State v. Segars, for example, the Court

held that while a defendant claiming selective enforcement bears the ultimate

burden of proving a discriminatory purpose underlying the State's actions, once

the defendant has established a prima facie case, the burden of production then

shifts to the State to articulate a legitimate basis for its action. 172 N.J. 481,

493–494 (2002). Although that burden of production "has been described as

so light as to be 'little more than a formality,'" it is also well-established that

A-3586-19T4 25 for the State to prevail, it cannot remain silent once the defendant has

established a prima facie case of discrimination. Ibid.13

Because the prosecutor in Andrews failed to offer specific reasons for

distinguishing the earlier cases identified by the judge, we had no occasion in

that case to consider how a trial court should resolve fact-sensitive disputes as

to whether the other specified defendants granted a Graves Act waiver were

similarly situated to the defendant challenging the rejection of his waiver

request. We now expound on how this methodology should be applied when,

as in the case before us, the prosecutor offers reasons to distinguish the

defendant from other specified defendants who were granted a Graves Act

waiver.

It bears noting at the outset that this review methodology is anecdotal,

not empirical, and necessarily involves subjective assessments of not only the

present case but also the earlier cases used for comparison. The challenge is to

ensure a reviewing court properly compares proverbial apples to apples when

deciding whether the prosecutor's decision to reject a defendant's request for a

Graves Act waiver is arbitrary or discriminatory. We next identify and explain

13 In Segars, the Court found the defendant had been targeted by police for suspicion based on his race. We emphasize in the matter presently before us, there is no allegation that defendant was treated differently from other defendants based on his race or ethnicity. A-3586-19T4 26 certain basic principles to guide our review of the trial court's conclusion that

the prosecutor in this case treated other similarly situated defendants

differently.

A.

Adherence to the Patent and Gross Abuse of Discretion Standard of Review

We begin by emphasizing the comparative analysis methodology does

not displace the patent and gross abuse of discretion standard of judicial

review first adopted in Alvarez and later confirmed in Benjamin. To the

contrary, that overarching standard applies to the judicial review of all aspects

of a prosecutor's waiver decision, including not only the prosecutor's

assessment of the aggravating and mitigating circumstances pertaining to the

present case under review, but also the prosecutor's assessment of other cases

where a waiver was granted. As we have previously noted, the gravamen of

our decision in Andrews is that the prosecutor's treatment of similarly situated

defendants can be a relevant circumstance as part of the judicial review

process. Accordingly, a prosecutor's assessment of the fact-sensitive

distinctions between the case at bar and other cases claimed to involve

similarly situated defendants is entitled to the same deference given to the

prosecutor's assessment of any other relevant circumstance.

A-3586-19T4 27 A court reviewing a prosecutor's rejection of a request for a Graves Act

waiver, as with the review of a prosecutor's rejection of a PTI application,

must "view the prosecutor's decision through the filter of the highly deferential

standard of review." State v. Waters, 439 N.J. Super. 215, 237–38 (App. Div.

2015) (quoting State v. Wallace, 146 N.J. 576, 589 (1996)). In this regard, we

emphasize the comparative analysis methodology serves as a "judicial

backstop" to guard against prosecutorial arbitrariness, vindictiveness, or

discrimination. See Andrews, 464 N.J. Super. at 123. It may not be used as an

artifice to allow a trial court to "substitute its own discretion for that of the

prosecutor." Nwobu, 139 N.J. at 253.

B.

Using Formal Charges as a Benchmark for Comparing Defendants

Formal charges approved by a judge or a grand jury can provide an

objective yardstick with which to compare cases. In Benjamin, the Court cited

State v. Sutton for the proposition that a defendant cannot prove disparate

treatment merely by showing the prosecutor treated "others charged with

similar offenses" differently. Benjamin, 228 N.J. at 374 (quoting Sutton, 80

N.J. at 120)). See note 11, supra. But when the other defendants in the

comparison group are not even charged with similar offenses, it is hard to

imagine a defendant could demonstrate disparate treatment constituting a

A-3586-19T4 28 patent and gross abuse of prosecutorial discretion. As a general proposition,

therefore, a past defendant who was charged with different offenses than the

defendant at bar should not be deemed to be similarly situated for purposes of

the comparative analysis methodology.

As we have noted, the Graves Act was expanded in 2007 to include a

spectrum of gun-related offenses. A person charged with simple possession of

a firearm under N.J.S.A. 2C:39-5—added to the Graves Act list in 2007—

stands in a different position from a defendant charged with possession of a

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a), or a defendant who

possessed a firearm while in the course of committing another crime.

So too, a defendant charged with N.J.S.A. 2C:39-4.1 (possession of a

firearm while in the course of committing a drug distribution/possession with

intent to distribute crime) stands in a different position from a defendant

charged with a violation of N.J.S.A. 2C:39-5. The Legislature has recognized

that given the violence associated with the illicit drug trade, there are special

dangers posed by drug dealers who have access to firearms. See Report to the

Governor by the Attorney General on the Need to Update the Comprehensive

Drug Reform Act of 1987 (Dec. 9, 1996) (stating that "[f]irearms have become

ubiquitous in the world of illegal drug activity. Dealers are armed to protect

themselves from law enforcement officers, from other dealers and from their

A-3586-19T4 29 customers."). We have no reason to believe the nexus between drug

trafficking and gun violence that impelled the enactment of N.J.S.A. 2C:39-4.1

has abated since that offense was added to the list of Graves Act offenses in

2007. It bears noting, moreover, when a person is convicted of both the gun

offense under N.J.S.A. 2C:39-4.1 and the underlying offense of drug

distribution/possession with intent to distribute, the court must impose

consecutive sentences. 14 This distinctive sentencing feature amply

demonstrates that persons charged with N.J.S.A. 2C:39-4.1 are not similarly

situated with persons charged with other Graves Act offenses.

When comparing cases, a reviewing court should consider not only

differences with respect to the specific Graves Act charges, but also

differences with respect to the type and number of other charges. When

determining whether a defendant is an appropriate candidate for a Graves Act

waiver, the prosecutor may of course consider all relevant circumstances

14 N.J.S.A. 2C:39-4.1(d) provides in pertinent part:

Notwithstanding the provisions of N.J.S.A. 2C:44-5 or any other provision of law, the sentence imposed upon violation of this section shall be ordered to be served consecutively to that imposed for any conviction for a violation of any of the sections of chapter 35 or chapter 16 referred to in this section or a conviction for conspiracy or attempt to violate any of those sections.

A-3586-19T4 30 pertaining to the need for punishment and deterrence, including criminal

conduct besides that covered by a Graves Act offense. See Attorney General

Directive at 12. Thus, for purposes of the comparative analysis methodology,

a defendant who is charged with multiple distinct crimes in addition to a

Graves Act offense—reflecting the scope and breadth of his or her alleged

criminal activity—is not similarly situated to a defendant who is charged only

with a Graves Act offense.

C.

Distinguishing Graves Act Waivers That Were Negotiated

Reviewing courts applying the comparative analysis methodology must

be mindful of the procedural status of the case under review and the cases used

for comparison. The Graves Act, it must be remembered, is a sentencing

statute, as is the statute that provides the so called "escape valve" for the

otherwise mandatory forty-two-month term of parole ineligibility, N.J.S.A.

2C:43-6.2. It is generally premature for a court to pronounce sentence before

verdict by trial or guilty plea. 15

15 Rule 3:9-3(c) permits a trial court, with the consent of both counsel, to tentatively indicate the maximum sentence it would impose in the event the defendant enters a plea of guilty. There is no indication in the record before us that this rule was invoked, that defendant has expressed a willingness to plead guilty to the two charged Graves Act gun offenses or would do so without also resolving the six other charges that are pending against him, or that the A-3586-19T4 31 The Attorney General Directive expressly contemplates that Graves Act

waiver decisions may be made in the context of plea negotiations. Indeed, one

of the clearly-expressed purposes of that Directive is "to provide reasonable

incentives for guilty defendants to accept responsibility by pleading guilty in a

timely manner so as to maximize deterrence by ensuring the swift imposition

of punishment." Attorney General Directive at 4. The Supreme Court in

Benjamin commented that the Attorney General Directive "ensures even

application throughout the state by requiring all prosecutors to consider the

same factors and adhere to the same plea procedures." Benjamin, 228 N.J. at

358 (emphasis added).

It is well-settled, moreover, that:

"Plea bargaining has become firmly institutionalized in this State as a legitimate, respectable and pragmatic tool in the efficient and fair administration of criminal justice." State v. Taylor, 80 N.J. 353, 360–61 (1979). A key component of plea bargaining "is the 'mutuality of advantage' it affords to both defendant and the State." Id. at 361. Simply stated, plea bargaining "enables a defendant to reduce his penal exposure and avoid the stress of trial while assuring the State that the wrongdoer will be punished and that scarce and vital judicial and prosecutorial resources will be conserved through a speedy resolution of the controversy." Ibid.

(continued) prosecutor consented to the announcement of a tentative sentence on the isolated gun charges. A-3586-19T4 32 [State v. Means, 191 N.J. 610, 618 (2007).]

One of the quintessential features of plea bargaining is the State's

agreement to reduce a defendant's penal exposure in exchange for the

defendant's guilty plea. Consequently, a defendant who pleads guilty pursuant

to a negotiated agreement will often receive a lesser sentence than would be

imposed on an otherwise similarly situated defendant who has not pled guilty.

See State v. Balfour, 135 N.J. 30, 38–39 (1994) ("[t]raditionally a guilty plea

is a material factor bearing on the ultimate sentence [that] can have a lenient

influence on the trial court's sentencing disposition.") (citing State v.

Thomas, 61 N.J. 314, 321 (1972) and State v. Taylor, 49 N.J. 440, 455 (1967)).

For these reasons, defendants in a comparison group who obtained a Graves

Act waiver pursuant to a plea bargain cannot be considered to be similarly

situated to a defendant who has not yet agreed to plead guilty.

We add that the plea-bargaining process can be used to provide incentive

for a defendant to turn State's evidence and cooperate in the prosecution of

codefendants or other more culpable offenders. The Attorney General

Directive expressly provides in this regard that a prosecutor may choose not to

tender a "standardized" plea offer if the resulting sentence reduction would

"undermine the investigation or prosecution of another." Attorney General

Directive at 13. This feature comports with AOC Directive #09-18, which

A-3586-19T4 33 imposes strict limits on when a court may dismiss an offense carrying a

mandatory custodial term under the Graves Act. One of the circumstances

when such a dismissal is authorized arises when, "[t]he prosecutor states on the

record, either in camera or in open court, that the plea bargain is essential to

ensure defendant's cooperation with the prosecution." AOC Directive #09-18

at 2.

In view of this well-established plea bargaining framework, a prosecutor

may not be willing to accept a defendant's request for a Graves Act waiver—

especially before plea negotiations have concluded—because the resultant

reduction in sentence exposure might also reduce the defendant's willingness

to cooperate with law enforcement in the investigation and prosecution of

codefendants or others. This circumstance might readily distinguish a case

under review from other cases where Graves Act waivers were granted. Cf.

State v. Williams, 317 N.J. Super. 149, 153, 159 (App. Div. 1998) (rejecting

the defendant's contention that his "extended sentence was grossly disparate to

the lenient term imposed on the codefendant," noting that "their situations

were wholly dissimilar [in part because the codefendant] provided meaningful

cooperation with the prosecutor.").

D.

Identifying the True Outlier

A-3586-19T4 34 A trial court applying the comparative analysis methodology must be

circumspect when relying on a small cadre of cases, much less only one or two

anecdotal examples, in determining whether defendant has adequately

"demonstrate[d] 'arbitrariness constituting an unconstitutional discrimination

or denial of equal protection' in the prosecutor's decision." Andrews, 464 N.J.

Super. at 120 (quoting Benjamin, 228 N.J. at 372). It is unrealistic and

unreasonable to expect prosecutors to be perfectly uniform and consistent i n

their assessment of the case-sensitive aggravating and mitigating

circumstances to be considered when making Graves Act waiver decisions.

Cf. Benjamin, 228 N.J. at 372 (acknowledging that "some disparity in

sentencing is inevitable."). The case-by-case evaluative process, after all, is

not empirical, and there is no precise mathematical formula guiding the

exercise of prosecutorial discretion to grant or reject Graves Act waivers. The

analytical process prosecutors use to weigh relevant aggravating and

mitigating factors when making waiver decisions is qualitative, not

quantitative, just as it is for sentencing courts. See State v. L.V., 410 N.J.

Super. 90, 108 (App. Div. 2009) ("[m]erely enumerating [the applicable

aggravating and mitigating] factors does not provide any insight into the

sentencing decision, which follows not from a quantitative, but from a

qualitative, analysis.") (citing State v. Kruse, 105 N.J. 354, 363 (1987)). We

A-3586-19T4 35 therefore believe requiring near-perfect consistency in exercising prosecutorial

discretion is not only unworkable, but also fundamentally at odds with the

substantial deference afforded to prosecutors under Alvarez and Benjamin.

A patent and gross abuse of discretion is not automatically established

by finding one or two cases where similarly situated defendants were granted a

waiver. It is conceivable that the earlier decision, rather than the one currently

under review, is the aberration—albeit one that was not challenged as such

because it worked to that defendant's advantage. A prosecutor's decision to

extend leniency in a particular case does not mean the die has been cast in all

future cases involving similar circumstances. Were it otherwise, prosecutors

might be dissuaded from granting waivers in close cases for fear of setting

binding precedent, thus reducing their ability to exercise reasoned discretion in

future cases.

We believe the comparative analysis methodology would provide a more

compelling basis to overrule a prosecutor's decision if it were shown that the

decision under review is an outlier, inconsistent with multiple prior cases

rather than just a select few. We add that a prosecutor responding to a trial

court's concerns is free, of course, to identify other cases involving simi larly

situated defendants where a Graves Act waiver was denied.

A-3586-19T4 36 IV.

We next apply these general principles to the comparative analysis

undertaken in this case. In sharp contrast to the proceedings in Andrews, here

the prosecutor offered specific reasons to explain why defendant is not

similarly situated to the defendants who received Graves Act waivers in the

three other cases cited by the trial court. The trial court rejected the

prosecutor's analysis, stating only, "[t]his [c]ourt is not persuaded by the

State's proffered factual distinctions between those cases and the case at hand

such that they warrant different treatment in granting of a Graves [w]aiver and,

ultimately, sentencing."

We believe the trial court did not accord sufficient deference to the

prosecutor's assessment of the distinguishing circumstances. The court instead

substituted its own judgment for the prosecutor's. Applying the guiding

principles identified in section III, supra, we are satisfied the prosecutor

proffered adequate explanations demonstrating the comparison defendants —

Olivares, Moses, and Miller—were not similarly situated to defendant

Rodriguez, and, therefore, the decisions to grant them Graves Act waivers do

not establish that Rodriguez was treated in an arbitrary or discriminatory

manner.

A-3586-19T4 37 Notably, Olivares and Moses both received Graves Act waivers after

pleading guilty pursuant to negotiated agreements. In the present case,

defendant sought to reduce his Graves Act sentencing without agreeing to

cooperate against codefendant Quiles or other persons in the chain of supply of

cocaine, and without pleading guilty in exchange for the prosecutor's

agreement to waive the Graves Act mandatory sentence. As we previously

noted, defendants who bargained for a Graves Act waiver in exchange for a

guilty plea are not similarly situated to defendants who have not pled guilty.

Additional distinguishing circumstances further demonstrate the State

did not abuse its discretion by treating defendant differently from Olivares and

Moses. In Olivares, the firearm was found in the common area of a house the

defendant shared with two other codefendants, both of whom pled guilty to

possession of the gun and the illicit drugs that were also found in the home. In

the present case, defendant does not dispute he owned the firearm, claiming he

kept it for self-defense.16

With respect to Moses, the prosecutor acknowledged the State was not

likely to obtain a conviction at trial. The State made no such concession in the

present case. The Attorney General Directive expressly allows a prosecutor to

16 In section V, infra, we address how the concept of keeping a firearm for self-protection applies in the case of a person who is alleged to be involved in drug distribution activities. A-3586-19T4 38 consider "the likelihood of obtaining a conviction at trial" in deciding whether

to grant a Graves Act waiver. Attorney General Directive at 12. See also

AOC Directive #09-18 at 2 (instructing that dismissal of a Graves Act offense

may only be approved by a judge in limited prescribed circumstances,

including when "[t]he prosecutor represents on the record that there is

insufficient evidence to warrant a conviction, or that the possibility of acquittal

is so great that dismissal is warranted in the interests of justice.").

We believe the prosecutor's representation on the record that the case

against Moses was weak explains why the State in that case agreed to a Graves

Act waiver, thus distinguishing Moses from the present case where the

prosecutor has not made a comparable concession. We recognize that the trial

court expressed skepticism as to the State's ability to prove the charged Graves

Act offenses. It bears repeating that under the patent and gross abuse of

discretion standard, a reviewing court should not substitute its judgment for

the prosecutor's assessment of the relative strengths and weaknesses of the

State's trial proofs. We add also that defendant has not filed a motion to

dismiss the Graves Act charges returned by the grand jury. Defendant's guilt

or innocence ultimately must be decided at trial after the State has presented

its evidence, not by a court reviewing a pre-trial Graves Act waiver motion.

A-3586-19T4 39 We next address the distinctions drawn by the prosecutor with respect to

State v. Miller. That case presents a closer call since the record is relatively

sparse with respect to the specifics of that particular case. At first glance,

there appear to be obvious similarities between Miller and the present case,

and some of the differences suggest that Miller was a less favorable candidate

for a Graves Act waiver than defendant Rodriguez. As the prosecutor

acknowledged, Miller carried a loaded firearm on his person. 17 Miller also had

a criminal record, although he was not charged as a "certain person," which

would have rendered him legally ineligible for a Graves Act waiver under

N.J.S.A. 2C:43-6.2.

Miller fled on foot from police who were attempting to execute an

outstanding arrest warrant. Although Miller obviously was charged with a

Graves Act offense for possession of the loaded handgun, we do not know the

other charges filed against him. The record shows that besides the handgun,

Miller was found with a single bag of crack cocaine. We do not know whether

he was charged with simple possession of CDS or the more serious offense of

17 We note that the Attorney General's Brimage Guidelines expressly recognize carrying a firearm on one's person warrants enhanced punishment when calculating the plea offer for a defendant charged with a violation of N.J.S.A. 2C:39-4.1. See Revised Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12 (July 15, 2004), at 90–91. The record does not indicate whether Miller was charged with this offense.

A-3586-19T4 40 possession with intent to distribute. We also do not know whether he was

charged with a violation of N.J.S.A. 2C:39-4.1.

At oral argument, the prosecutor argued defendant and Miller were not

similarly situated. The prosecutor highlighted that unlike Miller, defendant

Rodriguez was the subject of an ongoing narcotics investigation, engaged in

multiple controlled buys as part of that investigation, and was believed to be

using his residence for drug distribution-related activity as shown by the

issuance of a search warrant for that premises. Additionally, the prosecutor

argued defendant frustrated the search warrant not only by fleeing from police,

but also by discarding a significant quantity of cocaine from the fleeing

vehicle. The prosecutor also noted defendant allegedly possessed a greater

quantity of cocaine than was found in Miller's possession.

These distinguishing circumstances are in some respects more nuanced

than the objective 18 distinctions in Olivares and Moses. The prosecutor might

have provided a more fulsome explanation of the circumstances pertaining to

the Miller prosecution, including the specific charges he faced and the manner

18 By objective, we mean the incontrovertible fact that Olivares and Moses had both pled guilty pursuant to negotiated plea agreements. So too, the specific charges lodged against a defendant by complaint-warrant issued by a judge or indictment returned by a grand jury are objectively verifiable facts. Cf. State v. Nyhammer, 197 N.J. 383, 404-05 (2009) (noting for purposes of administering Miranda warnings that the issuance of a complaint-warrant is "an objectively verifiable and discrete fact."). A-3586-19T4 41 by which he was convicted. Even so, viewing the proffered distinctions

through the lens of the deferential standard of review, we believe the

prosecutor articulated sufficient reasons to distinguish defendant's situation

from Miller's. A person who is the target of an ongoing narcotics

investigation—one that involves the use of labor-intensive and potentially

dangerous investigative techniques such as controlled buys and search

warrants—stands in a different position from a person whose drug and gun

offenses were only discovered following the spontaneous execution of an

outstanding arrest warrant. Given the investment of law enforcement

resources associated with a sustained narcotics investigation, we presume that

investigative targets are not selected randomly or haphazardly, but rather for

some reason, such as their suspected role within the drug distribution network

or their potential to become confidential informants or cooperating witnesses.

We conclude; therefore, defendant's situation was different from Miller's by

virtue of defendant's status as the target of an ongoing law enforcement

investigation. We also believe the State did not abuse its discretion in

distinguishing defendant Rodriguez's alleged attempt to discard a substantial

quantity of incriminating CDS during flight from the circumstances of Miller's

flight.

A-3586-19T4 42 Even if we were to reject the prosecutor's proffered distinctions and

discern that Miller was similarly situated to defendant, that conclusion would

not complete our review under the comparative analysis methodology. As we

have noted, prosecutors should not be held to the standard of perfect

consistency in exercising their Graves Act waiver discretion. Cf. State v.

Megargel, 143 N.J. 484, 500 (1996) ("We realize that there is no calculus that

will guide the pen to the perfect sentence.") (quoting State v. Hodge, 95 N.J.

369, 379 (1984)). Identifying a single case where a similarly situated

defendant was granted leniency, therefore, does not prove arbitrariness or

discriminatory treatment sufficient to overrule the prosecutor's otherwise

reasoned Graves Act waiver decision. We therefore hold that in this instance,

the comparative analysis methodology does not support the trial court's

conclusion the prosecutor acted in an arbitrary and discriminatory manner in

rejecting defendant's request for a Graves Act waiver.

V.

We next address the trial court's ruling the prosecutor patently and

grossly abused discretion in assessing the aggravating and mitigating factors

pertaining to this case.

A-3586-19T4 43 A.

The trial court concluded the prosecutor placed undue weight on the

seriousness of the offense conduct, and did not accord sufficient weight to the

circumstances militating in favor of a Graves Act waiver, including

defendant's lack of a criminal record, mature age, family status, and gainful

employment. For example, the court commented, "[t]herefore, the court gives

[the contention that defendant's rifle was possessed in furtherance of drug

distribution activity] minimal weight and instead weighs [d]efendant's lack of

criminal history more heavily."

In explaining the patent and gross abuse of discretion standard, the Court

in Nwobu noted a clear error of judgment constituting a patent and gross abuse

of discretion is one that "could not have reasonably been made upon a

weighing of the relevant factors." Nwobu, 139 N.J. at 254 (quoting State v.

Roth, 95 N.J. 334, 366 (1984)). Moreover, the weighing of aggravating and

mitigating factors is a qualitative process, not a quantitative one.

We do not believe the prosecutor in this case committed a patent and

gross abuse of discretion by ascribing greater weight to the circumstances

pertaining to the offense than to those circumstances pertaining to the

offender. Indeed, the prosecutor's emphasis on the offense conduct and the

A-3586-19T4 44 need for deterrence comports with basic sentencing principles. As our

Supreme Court explained in Megargel,

It is, therefore, paramount that the sentence reflect the Legislature's intention that the severity of the crime now be the most single important factor in the sentencing process. The focus on the offense rather than the offender is inexorable in formulating a sentence. The paramount reason we focus on the severity of the crime is to assure the protection of the public and the deterrence of others. The higher the degree of the crime, the greater the public need for protection and the more need for deterrence.

[143 N.J. at 500 (citations omitted)].

The prosecutor's focus on deterrence is especially appropriate in the

context of the Graves Act. See Benjamin, 228 N.J. at 367 (explaining that

"[u]nderlying this statute is a legislative intent to deter individuals from

committing firearm-related crimes by calling for a mandatory minimum term

of imprisonment for those convicted of Graves Act offenses") (quoting Des

Marets, 92 N.J. at 71).

The trial court identified several points with which it disagreed with the

prosecutor's assessment of the nature and seriousness of the offense. We now

address those specific points to determine whether they demonstrated a patent

and gross abuse of prosecutorial discretion.

A-3586-19T4 45 We first examine the trial court's finding that there was "no evidence to

support the conclusion that [d]efendant possessed the firearm in further[ance]

of his 'drug dealing,' as the State suggest[ed]." The trial court reasoned the

firearm was not the type of weapon typically used in drug offenses, and that it

was not found on defendant's person but rather in his bedroom away from any

drugs.

In practical effect, the trial court found the State could not prove that

defendant committed a violation of N.J.S.A. 2C:39-4.1.19 In State v. Spivey,

the Court held that a violation of N.J.S.A. 2C:39-4.1 requires a "temporal and

spatial link between the possession of the firearm and the drugs that defendant

intended to distribute." 179 N.J. 229, 239 (2004). The Court further

explained:

The evidence must permit the jury to infer that the firearm was accessible for use in the commission of the crime. The inference to be drawn—that the gun was possessed in the course of committing the drug offense—becomes more tenuous the further removed the gun is from the drugs. For example, a person could constructively possess in a New Jersey home drugs that he intends to distribute at the same time he constructively possesses a hunting rifle in a California home. In such a case, without some showing of a connection between the two, the evidence would not

19 As we have already noted, defendant did not move to dismiss the count of the indictment charging him with a violation of N.J.S.A. 2C:39-4.1.

A-3586-19T4 46 permit a reasonable inference that the person constructively possessed the rifle while in the course of committing a drug offense 3000 miles away. The closer in proximity a firearm is to drugs, the stronger and more natural the inference that the two are related to a common purpose. We cannot limn the multitude of scenarios that would permit the drawing of a reasonable inference that a firearm is possessed while in the course of committing a drug offense. There is no formulaic solution; each case is fact-sensitive. We leave that decision to the sound discretion of our trial courts.20

[Id. at 239–40.]

We do not believe the spatial and temporal link between the weapon and

drugs was insufficient to establish a violation of N.J.S.A. 2C:39-4.1 simply

because the firearm and CDS were found in different rooms. The present

situation is readily distinguishable from the hypothetical example the Court in

Spivey used to illustrate an insufficient nexus—that is, where a hunting rifle is

constructively possessed 3000 miles away from where the drugs are kept. We

do not read Spivey to suggest that as a matter of law, keeping drugs and guns

20 The Court in Spivey addressed whether the trial court erred in denying the defendant's motion for acquittal at the conclusion of the State's case at trial. 179 N.J. at 235. The Court's reference that the decision on a motion for judgment of acquittal is left "to the sound discretion of our trial courts," id. at 240, does not suggest that in the context of a pretrial motion to overrule a prosecutor's denial of a Graves Act waiver, discretion resides with the trial court rather than the prosecutor. A-3586-19T4 47 in different rooms in the same house falls outside the ambit of N.J.S.A. 2C:39-

4.1.

Nor is it dispositive that police found only a small quantity of drugs in

defendant's house. Although drug amounts are used to determine the gradation

of a violation of the offense of distribution/possession with intent to distribute

CDS, see N.J.S.A. 2C:35-5(c), our law does not prescribe a minimum amount

to prove an intent to distribute. 21 Rather, that determination depends on the

totality of the relevant circumstances. See Model Jury Charges (Criminal),

"Possession of a Controlled Dangerous Substance with Intent to Distribute

(N.J.S.A. 2C:35-5)," at 2 (rev. June 8, 2015) ("The intention [to distribute]

may be gathered from a person's acts, conduct, from all the person said and did

at the particular time and place, and from all of the surrounding circumstances.

You may consider any evidence as to the quantity, purity, and packaging of

[the controlled substance] together with all the other evidence in the case to

aid you in your determination of the element of intent to distribute."). If, for

example, the State at trial can prove that defendant possessed the eighteen

grams of discarded cocaine with intent to distribute, then the jury would be

free to infer whether first, the two grams of cocaine found in his house were

21 We note N.J.S.A. 2C:35-5(c) permits the aggregation of amounts involved in individual acts of distribution and possession with intent to distribute. A-3586-19T4 48 also possessed with an intent to distribute, and second, those drugs were

sufficiently proximate to the firearm to prove a violation of N.J.S.A. 2C:39 -

Defendant is, of course, free at trial to argue he did not possess the

firearm in the course of committing a drug offense, and ultimately, it is the

State's burden to prove a violation of N.J.S.A. 2C:39-4.1 beyond a reasonable

doubt. But for purposes of applying the deferential standard of review

announced in Alvarez and Benjamin, we conclude the prosecutor did not

commit a clear error in judgment or otherwise abuse discretion in drawing an

inference that defendant possessed the stolen rifle in the furtherance of

committing a drug offense.

The trial court also found the firearm in this case is not the type of

weapon typically associated with drug dealing. In reaching this conclusion,

the trial court made no mention that the weapon had been stolen, or that the

search of defendant's home also revealed hollow point ammunition. So far as

we can tell, the trial court's observation is not based on expert opinion in the

record or on published authority explaining the type(s) of weapons preferred

by drug dealers. We nonetheless except for the sake of argument that a .22

caliber rifle with a telescopic gunsight is not the typical weapon of choice for

drug dealers. That does not necessarily mean; however, this particular weapon

A-3586-19T4 49 was not possessed in furtherance of defendant's alleged drug distribution

activities.

Defendant does not argue the rifle was used solely for hunting. Rather,

he asserts the weapon was kept in his home for "self-protection." 22 For

purposes of deciding whether to grant a Graves Act waiver, the concept of

self-protection must be viewed in the context of the illicit drug trade in which

defendant is alleged to participate. For obvious reasons, drug dealers may be

wary of relying on police to protect their illicit drugs and the cash proceeds of

their sale. Drug dealers are especially vulnerable to robbery, burglary, and

other crimes because would-be attackers know drug dealers are not likely to

report offenses and solicit aid from police. As we have already noted, a report

22 In Andrews, we cited State v. Harmon, 104 N.J. 189, 207 (1986), for the proposition that "[i]f an individual's possession of a firearm is motivated honestly by a self-protective purposes, then his conscious object and design may not be to do an unlawful act and a material element of a [N.J.S.A. 2C:39 - 4(a)] violation has not been met." Andrews, 464 N.J. Super. at 118, n.2. In Harmon, a BB gun was drawn during an argument. The issue was whether the jury was properly instructed on the culpable mental state required to convict for possession of a firearm "for an unlawful purpose" in view of the affirmative defense of self-defense that was asserted. 104 N.J. at 191, 208— 09. We do not believe that Harmon offers guidance with respect to the distinct offense of possessing a firearm while in the course of committing, attempting to commit, or conspiring to commit a designated drug offense, N.J.S.A. 2C:39-4.1. Indeed, we do not see how the defense of "use of force in self-protection," codified in N.J.S.A. 2C:3-4, would apply in a prosecution for violation of N.J.S.A. 2C:39-4.1. A-3586-19T4 50 to the Governor calling for tougher gun laws cited in Spivey explains that

"[f]irearms have become ubiquitous in the world of illegal drug activity.

Dealers are armed to protect themselves from law enforcement officers, from

other dealers, and from their customers." Spivey, 179 N.J. at 240 (emphasis

added). It bears emphasis, moreover, the statute that generally allows

persons—other than "certain persons," see note 7, supra—to keep a firearm in

their residence or place of business, N.J.S.A. 2C:39-6(e), does not exempt

criminal liability for a violation of N.J.S.A. 2C:39-4.1 or N.J.S.A. 2C:39-

4(a).23

Accordingly, even assuming for the sake of argument that a drug dealer

earnestly intends to use his firearm only defensively to protect against criminal

attack by competitors or customers, he is not permitted to keep a firearm in a

residential or business premises connected with his criminal activity.

Relatedly, a drug dealer, like anyone else, may attempt to claim self-defense

under N.J.S.A. 2C:3-4 (use of force in self-protection) to justify the use of a

weapon. But that does not mean the firearm was not possessed while in the

course of committing, attempting to commit, or conspiring to commit a

23 The exemption from criminal liability established in N.J.S.A. 2C:39-6(e) applies only to N.J.S.A. 2C:35-5(b) (unlawful possession of a handgun), (c) (unlawful possession of a rifle or shotgun), and (d) (unlawful possession of other weapons under circumstances not manifestly appropriate for such lawful uses as it may have). A-3586-19T4 51 violation of N.J.S.A. 2C:35-5. See note 22, supra. In sum, we do not believe

the prosecutor made a clear error of judgment or otherwise abused discretion

in concluding that imposition of the Graves Act sentence is needed in this case

to deter drug dealers from owning firearms.

We recognize the trial court was skeptical of the prosecutor's contention

that defendant is in fact a drug dealer whose ownership of a firearm must be

deterred by imposing a Graves Act sentence. The trial court, for example,

questioned the prosecutor's contention that defendant was in possession of the

eighteen grams of cocaine discarded from the fleeing vehicle. "It is unknown,"

the court remarked, "if the driver or [d]efendant discarded the items later

discovered to be eighteen grams of cocaine." The court reasoned that the

driver was a known drug dealer and that only two grams of cocaine ultimately

were found in defendant's home pursuant to the execution of the search

warrant.

The State at trial will bear the burden of proving beyond a reasonable

doubt that defendant possessed the eighteen grams of cocaine within the

meaning of N.J.S.A. 2C:2-1(c).24 For purposes of applying the deferential

24 N.J.S.A. 2C:2-1(c) provides:

Possession is an act, within the meaning of this section, [requiring commission of a voluntary act] if A-3586-19T4 52 standard of review announced in Alvarez and Benjamin, we believe it was

reasonable for the prosecutor to infer that the drugs thrown out the passenger -

side window were discarded by the person seated in the passenger seat—

defendant—and defendant knew of the criminal nature of the items discarded

during the police chase. Furthermore, the fact that codefendant Quiles was a

known drug dealer does not absolve defendant of culpability with respect to

the contraband. Both of them may have possessed the cocaine jointly, and it is

conceivable that Quiles served as defendant's supplier within a larger drug

distribution network. In these circumstances, the prosecutor did not make a

clear error in judgment or otherwise abuse discretion by ascribing to defendant

at least joint and constructive possession of the significant quantity of

discarded cocaine. 25

Although we accord substantial deference to the prosecutor's assessment

of aggravating and mitigating circumstances, there is, however, one

(continued) the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. 25 The record before us does not indicate whether codefendant Quiles has shown any intention of taking responsibility for the eighteen grams of cocaine.

A-3586-19T4 53 aggravating factor found by the prosecutor that gives us pause. The prosecutor

found aggravating factor three—the risk that defendant will commit another

offense. N.J.S.A. 2C:44-1(a)(3). This determination was based on defendant's

involvement in the multiple controlled buys and his flight when police

approached to execute the search warrant. We do not doubt that both of those

circumstances are relevant in assessing defendant's culpability, but not because

they indicate defendant is likely to commit a new crime following the

resolution of the pending charges.

For purposes of applying the patent and gross abuse of discretion

standard, a clear error of judgment "is one that is 'based on appropriate factors

and rationally explained,' but 'is contrary to the predominant views of others

responsible for the administration of criminal justice.'" Nwobu, 139 N.J. at

253 (quoting State v. Dalglish, 86 N.J. 503, 510 (1981)). In State v. Torro, we

held the sentencing judge improperly identified the likelihood that defendant

would commit another offense as an aggravating factor. 229 N.J. Super. 215,

227 (App. Div. 1988). We reasoned,

The fact that defendant had been gainfully employed for over two years, had no prior criminal record, and was a respected member of his community militate against this conclusion. Furthermore, neither the trial record nor the presentence report indicate that defendant was involved in the distribution of drugs on more than one occasion.

A-3586-19T4 54 [Ibid.]

We recognize in the case before us, defendant is alleged to have been

involved in the distribution of drugs on more than one occasion, as the

prosecutor duly noted with respect to the multiple controlled buys giving ris e

to the search warrant. Even so, we believe defendant's minimal prior contact

with the criminal justice system—a single conditional discharge in 1990—

coupled with his family background, age, and employment history, provides a

far better indication of the risk that defendant will commit a future offense.

We add that the State did not seek pretrial detention under the Criminal Justice

Reform Act, N.J.S.A. 2A:162-15 to -26, based on the risk defendant would

commit another offense if released.

We believe that in finding aggravating factor three, the prosecutor

essentially conflated the risk that defendant would commit another offense

with the need to deter him, and others, from committing a future offense. We

therefore agree with the trial court that the prosecutor erred in citing

aggravating factor three.

That does not automatically mean, however, that this error warrants

overruling the prosecutor's ultimate decision to reject defendant's application

for a Graves Act waiver. Importantly, the prosecutor explicitly acknowledged

defendant's lack of criminal history and found mitigating factor seven,

A-3586-19T4 55 N.J.S.A. 2C:44-1(b)(7) ("[t]he defendant has no history of prior delinquency or

criminal activity or has led a law-abiding life for a substantial period of time

before the commission of the present offense"). In this context, we do not

believe the prosecutor failed to consider a relevant circumstance within the

meaning of the patent and gross abuse of discretion standard of review. See

Nwobu, 139 N.J. at 247. Nor did the prosecutor consider an irrelevant or

inappropriate factor. Ibid. At most, the prosecutor erred in citing the

repetitive drug transactions and attempted spoilation of evidence—aggravating

circumstances to be sure—as a basis for finding aggravating factor three.

It is evident the prosecutor's chief concern was the need for deterrence

based on the nature and seriousness of the offense conduct. N.J.S.A. 2C:44 -

1(a)(9) ("[t]he need for deterring the defendant and others from violating the

law"). It also is evident the prosecutor believed the aggravating circumstances

reflected in the offense conduct outweighed the mitigating circumstances

reflected in defendant's lack of criminal history, family background, and

gainful employment, all of which the prosecutor acknowledged. Given the

qualitative nature of the weighing process, we do not believe the prosecutor's

decision would have been different had aggravating factor three not been cited.

Nor do we believe the prosecutor's misapplication of that aggravating factor

constitutes an error of judgment and resultant abuse of discretion of such

A-3586-19T4 56 magnitude and impact as to justify overruling the prosecutor's Graves Act

waiver decision.

VI.

We conclude our analysis with the observation that, as in Andrews, we

believe "'within the constellation of Graves Act cases,' this one is 'deserving of

some leniency,'" Andrews, 461 N.J. Super. at 124 (quoting State v. Mello, 297

N.J. Super. 452, 468 (App. Div. 1997)). While we might have reached a

different conclusion than the prosecutor if it was our decision to make in the

first instance, and while we appreciate and respect the concerns raised by the

trial judge, who was committed to conducting a thorough and robust review as

required by Alvarez, Benjamin, and Andrews, we do not believe defendant

established a patent and gross abuse of prosecutorial discretion. We therefore

are constrained to reverse and vacate the order overruling the prosecutor's

decision to reject defendant's request for a Graves Act waiver. Nothing in this

opinion shall be construed to limit the parties from engaging in plea

negotiations that might yet result in a Graves Act waiver.

Reversed and remanded. We do not retain jurisdiction.

A-3586-19T4 57