SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)
State v. Kassey Benjamin (A-43-15) (076612)
Argued November 7, 2016 — Decided April 5, 2017
SOLOMON, J., writing for a majority of the Court.
In this appeal, the Court determines whether a defendant seeking a waiver of the mandatory minimum sentence under the Graves Act is entitled to discovery of the prosecutor’s files from cases in which other defendants were granted waivers of the mandatory minimum penalty.
In July 2011, defendant and a few friends stood in the “drive-thru” lane of a McDonald’s restaurant, blocking cars from passing. A vehicle approached, and one of its occupants yelled for the men to move. A verbal altercation ensued, and defendant brandished a firearm. Although defendant did not point the handgun at anyone, he threatened to fire it. Defendant was subsequently arrested and charged with various firearm-related offenses, including second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), which is subject to the mandatory minimum sentence under the Graves Act.
The Graves Act provides that, for some first-time offenders, the assignment judge, upon motion of the prosecutor or request of the sentencing judge with the prosecutor’s approval, may waive the mandatory minimum sentence and impose either probation or a reduced mandatory custodial term. N.J.S.A. 2C:43-6.2 (section 6.2). As a first-time offender, defendant filed a motion asking the trial court to refer his case to the assignment judge. The prosecutor opposed the motion as procedurally improper because under section 6.2 a sentencing court, not the trial court, is authorized to refer the case to the assignment judge—and only with the prosecutor’s approval. The prosecutor did not provide a written statement of reasons for his refusal to seek a waiver; the prosecutor only stated that the State did not believe that the interests of justice dictated a waiver in defendant’s case.
Around this time, defendant filed a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, for various documents, including police reports, indictments, and plea forms for all Graves Act cases between 2010 and 2012 in which waivers were granted. According to defendant, the only way to prove that the prosecutor abused his discretion in denying a waiver was to compare the facts of his case to the facts of other similar cases in which waivers were granted. The Middlesex County Prosecutor’s Office denied his request.
Ultimately, defendant pled guilty to possession of a weapon for an unlawful purpose, and the State agreed to recommend that he be sentenced as a third-degree offender. The court instructed the prosecutor to state on the record the reasons for refusing to move for a waiver. The prosecutor responded that defendant’s actions went beyond mere possession of a firearm and were exactly the type of conduct the Graves Act seeks to deter.
Defendant appealed. The Appellate Division vacated defendant’s guilty plea in the interest of “fundamental fairness,” 442 N.J. Super. 258, 260 (App. Div. 2015), and remanded the case for proceedings consistent with State v. Alvarez, 246 N.J. Super. 137, 146-49 (App. Div. 1991), which allows defendants to appeal the denial of a waiver to the assignment judge upon a showing of patent and gross abuse of discretion by the prosecutor. Additionally, the panel interpreted the Attorney General’s Directive to Ensure Uniform Enforcement of the “Graves Act” (Oct. 23, 2008, as corrected Nov. 25, 2008) (Directive) as requiring prosecutors to memorialize their reasons for denying a Graves Act waiver to ensure that waiver decisions are not disparate. The panel instructed the prosecutor on remand to give defendant a written statement of reasons for the denial and allowed defendant to renew his request for discovery of files related to Graves Act waiver decisions by the prosecutor.
The Court granted the State’s petition for certification limited to the issue of “whether a defendant seeking a waiver of a mandatory sentence under the Graves Act has the right to discovery of the prosecutor’s files on previous applications for Graves Act waivers.” 224 N.J. 119 (2016).
HELD: Defendants are not entitled to discovery of the prosecution’s files for cases in which Graves Act waivers have been granted to other defendants.
1 1. Underlying the Graves Act 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. To mitigate the undue severity that might accompany the otherwise automatic application of the mandatory minimum sentence under the Graves Act, the Legislature included section 6.2, 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. Under that section, an eligible defendant may be sentenced to either probation or a one-year custodial term during which he or she is disqualified from being paroled. (pp. 12-14)
2. In 2008, the New Jersey Attorney General issued a directive “to ensure statewide uniformity in the exercise of prosecutorial discretion in implementing” the Graves Act. Directive, supra, at 10. Once a prosecutor moves for or consents to a waiver, the Directive requires the prosecutor to specify which reduced penalty would best serve the “interests of justice”: either a mandatory minimum one-year period of incarceration or a probationary term. Id. at 14. The Directive also contains specific record-keeping requirements, including the documentation of aggravating and mitigating circumstances, case-specific memorializations of the reasons for the prosecutor’s decision, and the maintenance of separate cumulative files, which facilitate periodic audits by the Attorney General. In addition, on a quarterly basis, prosecutors must report to the Attorney General the number of pre- and post-indictment pleas in which the prosecutor moved for, or consented to, a Graves Act waiver. (pp. 14-16)
3. In State v. Lagares, 127 N.J. 20 (1992), and State v. Vasquez, 129 N.J. 189 (1992), the Court upheld the statutory delegation of sentencing discretion to prosecutors to waive the Comprehensive Drug Reform Act’s mandatory minimum term of incarceration, provided that (1) the Attorney General promulgated guidelines to help prosecutors uniformly apply the statute; (2) prosecutors stated on the record the reasons supporting their decision in order to enable judicial review and ensure compliance with the guidelines; and (3) a court could review and overturn the prosecutor’s decision if a defendant demonstrates that the prosecutor acted arbitrarily and capriciously. (pp. 16-18)
4. The Graves Act provides the procedural safeguards required by this Court in Lagares and Vasquez. First, written guidelines exist to channel prosecutorial discretion. The Directive instructs prosecutors how to uniformly apply the Graves Act and section 6.2. Second, the Directive requires prosecutors to document their analysis of all the relevant aggravating and mitigating circumstances. Third, since the Appellate Division’s 1991 decision in Alvarez, defendants have been able to seek judicial review of waiver decisions. The assignment judge retains “ultimate authority” to review the prosecutor’s waiver decisions for arbitrariness and discrimination. Accordingly, the Graves Act affords meaningful judicial review of a prosecutor’s decision to deny a Graves Act waiver. (pp. 18-20)
5. All case-specific files should contain a statement of reasons which the assignment judge may consider. Conversely, additional case-specific information is contained in case and cumulative files for administrative reasons because those files function as internal documents. No case-specific information beyond a statement of reasons was intended to be accessed by a Graves Act defendant seeking to demonstrate that the prosecutor acted arbitrarily. The Court has never mandated discovery to aid defendants in demonstrating arbitrary and capricious conduct or disparate treatment without a preliminary showing. To the contrary, it has repeatedly stated that defendants must support their claims by “independently secured evidence.” State v. Sutton, 80 N.J. 110, 120 (1979). (pp. 20-22)
6. Defendants are not entitled to discovery of a prosecutor’s case-specific memorializations and cumulative files when challenging the denial of a Graves Act waiver in an Alvarez motion because there are sufficient procedural safeguards in place for meaningful judicial review of a prosecutor’s waiver decision. (pp. 22-23)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED.
JUSTICE ALBIN, DISSENTING, expresses the view that the adversarial process has a role to play in ensuring that waiver decisions do not undermine the goal of uniformity in sentencing and concludes that the right to challenge unconstitutional discrimination or denial of equal protection in Graves Act waiver cases is a hollow right if defendants are denied basic information necessary to assert that right.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
2 SUPREME COURT OF NEW JERSEY A-43 September Term 2015 076612
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KASSEY BENJAMIN,
Defendant-Respondent.
Argued November 7, 2016 – Decided April 5, 2017
On certification to the Superior Court, Appellate Division, whose opinion is reported at 442 N.J. Super. 258 (App. Div. 2015)
Carol M. Henderson, Assistant Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General of New Jersey, attorney).
Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney).
Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Mr. Shalom, Mr. Barocas, and Jeanne M. LoCicero, on the letter brief).
JUSTICE SOLOMON delivered the opinion of the Court.
We must determine whether a defendant seeking a waiver of
the mandatory minimum sentence under the Graves Act is entitled
1 to discovery of the prosecutor’s files from cases in which other
defendants were granted waivers of the mandatory minimum
penalty.
The Graves Act prescribes a minimum term of incarceration
for certain firearm-related offenses. For some first-time
offenders, the statute contains a provision that allows the
assignment judge, upon motion of the prosecutor or request of
the sentencing judge with the prosecutor’s approval, to waive
the mandatory minimum sentence and impose either probation or a
reduced mandatory custodial term. N.J.S.A. 2C:43-6.2 (section
6.2).
In this case, defendant was charged with various firearm-
related offenses under the Graves Act. After the prosecutor
denied defendant’s request for a waiver of the mandatory
penalty, defendant sought discovery of documents from recent
cases in which the prosecutor had approved waivers for other
first-time offenders. According to defendant, this would allow
him to demonstrate the arbitrariness of the prosecutor’s
decision. The prosecutor declined to provide the requested
files.
Ultimately, defendant pled guilty to possession of a weapon
for an unlawful purpose. The Appellate Division vacated
defendant’s conviction, remanded the matter to the trial court,
ordered the prosecutor to provide defendant with a written
2 statement of reasons for denying the waiver, and allowed
defendant to renew his request for discovery of previously
granted waivers. We granted certification limited to the
discovery issue.
We agree with the Appellate Division that, when denying a
Graves Act waiver, the prosecutor must provide the defendant
with a statement of reasons. However, we hold that defendants
are not entitled to discovery of the prosecution’s files for
cases in which Graves Act waivers have been granted to other
defendants. We therefore affirm but modify the judgment of the
Appellate Division.
I.
The record reveals the following facts and procedural
history. In July 2011, defendant and a few friends stood in the
“drive-thru” lane of a McDonald’s restaurant in Edison, New
Jersey, blocking cars from passing. A vehicle approached, and
one of its occupants yelled for the men to move. A verbal
altercation ensued, and defendant brandished a firearm.
Although defendant did not point the handgun at anyone, he
threatened to fire it.
Defendant and his friends ended the confrontation by
leaving the McDonald’s. Subsequently, the occupants of the
vehicle called the police. Responding officers observed
defendant walking with a group of people in close proximity to
3 the McDonald’s. Because defendant was carrying a gun and
matched the description of one of the suspects, officers
approached and ordered defendant to drop the weapon. Defendant
threw the handgun behind a nearby motor home, but officers were
able to recover a 32-caliber revolver after they placed
defendant under arrest. The weapon was unloaded and had the
serial number scratched off.
Defendant was charged with various firearm-related
offenses, including second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a), which is subject to the
mandatory minimum sentence under the Graves Act. When defendant
was charged in 2011, the mandatory minimum term was three years.1
At the time of his offense, defendant was an eighteen-year-old
full-time college student with no juvenile or adult criminal
history. Thus, as a first-time offender, defendant was eligible
for a waiver of the mandatory term of incarceration under
section 6.2.
Initially, defense counsel tried to persuade the prosecutor
to file a motion recommending that the assignment judge waive
the three-year mandatory minimum sentence, but the prosecutor
did “not believe that the interests of justice dictate[d] a
1 An amendment to the Graves Act was adopted in August 2013, increasing the mandatory minimum sentence from three years to forty-two months. L. 2013, c. 113, § 2 (codified at N.J.S.A. 2C:43-6). 4 waiver” in defendant’s case. Defendant then filed a motion
asking the trial court to refer his case to the assignment judge
with the hope that the prosecutor would consent to a waiver.
Attached to his motion were numerous documents attesting to
defendant’s moral character and academic success.
The prosecutor opposed defendant’s motion as procedurally
improper because under section 6.2 a sentencing court, not the
trial court, is authorized to refer the case to the assignment
judge. The prosecutor also argued that the matter could be
referred to the assignment judge only with the prosecutor’s
approval. Up until that point, the prosecutor had not provided
a written statement of reasons for his refusal to seek a waiver;
the prosecutor only stated, “[a]s has been indicated in the
past, the State does not believe that the interests of justice
dictate a waiver . . . in this case.”
Around this time, defendant filed a request under the Open
Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, for various
documents, including police reports, indictments, and plea forms
for all Graves Act cases between 2010 and 2012 in which waivers
were granted. According to defendant, the only way to prove
that the prosecutor abused his discretion in denying a waiver
was to compare the facts of defendant’s case to the facts of
other similar cases in which waivers were granted. The
Middlesex County Prosecutor’s Office denied his request, stating
5 that there was “no single document offering a list of defendants
who fall into this category and, under OPRA, we are not
permitted to conduct research for requestors, or create
documents that do not already exist.”
After his failed attempts to obtain the prosecutor’s
consent to a waiver, defendant pled guilty to second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a); the State agreed to recommend that defendant be sentenced
as a third-degree offender. At sentencing, defense counsel
informed the court that the OPRA request to obtain information
about other Graves Act waiver cases was unsuccessful. The court
instructed the prosecutor to state on the record the reasons for
refusing to move for a waiver. The prosecutor responded that
his decision was “anything but arbitrary and capricious” because
defendant’s actions went beyond mere possession of a firearm,
and that brandishing a weapon during an altercation is exactly
the type of conduct the Graves Act seeks to deter.
The court acknowledged that this case differs from the
“[w]aiver cases that the [c]ourt normally gets,” where a person
from out-of-state is caught in New Jersey carrying a firearm
that he or she legally owns. The sentencing judge recognized
that brandishing a gun was merely a “very silly, stupid mistake”
on defendant’s part, but concluded that the prosecutor’s
decision was not “arbitrary and capricious, or even quite
6 frankly, respectfully, in error” because the firearm had been
brandished.
The court identified the “clearly significant mitigating
factors here,” such as defendant’s family status, young age, and
lack of a prior criminal record. “[R]egardless of the fact that
the mitigating factors substantially outweigh . . . any
aggravating factors,” the court sentenced defendant in
accordance with the plea agreement to three years’ imprisonment
with a mandatory three-year parole disqualifier pursuant to the
Graves Act.
The Appellate Division vacated defendant’s guilty plea in
the interest of “fundamental fairness.” State v. Benjamin, 442
N.J. Super. 258, 260 (App. Div. 2015). The panel remanded the
case for proceedings consistent with State v. Alvarez, 246 N.J.
Super. 137, 146-49 (App. Div. 1991), which allows defendants to
appeal the denial of a waiver to the assignment judge upon a
showing of patent and gross abuse of discretion by the
prosecutor. Benjamin, supra, 442 N.J. Super. at 264-67.
Additionally, the appellate panel interpreted the
Attorney General’s Directive to Ensure Uniform Enforcement of
the “Graves Act” (Oct. 23, 2008, as corrected Nov. 25, 2008)
(Directive) as requiring prosecutors to memorialize their
reasons for denying a Graves Act waiver “as a means to ensure
7 that waiver decisions are not disparate.” Benjamin, supra, 442
N.J. Super. at 266. Thus, the panel observed that,
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 disadvantaged in meeting his Alvarez burden. Moreover, given these circumstances, no informed judicial determination of the motion could be made.
[Ibid.]
Accordingly, the panel instructed the prosecutor on remand to
give defendant a written statement of reasons for the denial and
allowed defendant to renew his request for discovery of files
related to Graves Act waiver decisions by the prosecutor. Id.
at 267.
After the Appellate Division’s ruling, the Attorney General
superseded the Middlesex County Prosecutor and petitioned this
Court for review. We granted certification limited to the issue
of “whether a defendant seeking a waiver of a mandatory sentence
under the Graves Act has the right to discovery of the
prosecutor’s files on previous applications for Graves Act
waivers.” 224 N.J. 119 (2016). Soon thereafter, the Office of
the Public Defender assumed representation of defendant. We
granted amicus curiae status to the American Civil Liberties
Union of New Jersey (ACLU).
8 II.
A.
In the State’s view, uniform application of the Graves Act
does not require identical application to all defendants. The
State warns that allowing discovery of other waiver cases would
inappropriately shift the focus of judicial review from
individual assessments of defendants to comparisons with other
defendants in prior waiver cases.
The State concedes that the prosecutor should provide
defendants with a written statement of reasons at the time a
Graves Act waiver is denied. The State argues, however, that
defendants are not entitled to “forage” through unrelated files
to substantiate an allegation of disparate treatment by the
prosecutor. The State asserts that permitting discovery of such
files would require prosecutors to turn over confidential work
product and sensitive information pertaining to trial that would
violate the privacy rights of other defendants. Relatedly, the
State notes that criminal discovery materials, such as pre-trial
intervention (PTI)2 records, are excluded from public access.
The State maintains that numerous safeguards exist to
ensure fair application of section 6.2, such as the Directive,
2 PTI is a diversionary program that provides qualifying criminal defendants with rehabilitative services while sparing them both the stigma of prosecution and the consequences of conviction. N.J.S.A. 2C:43-12. 9 which contains standards and procedures to guide waiver
decisions and, according to the State, sufficiently cabins
prosecutorial discretion. Finally, the State stresses that
because all waiver applications, including the one in this case,
pass through the assignment judge, that judge is in the “best
position” to identify discriminatory practices.
B.
Defendant claims that a written statement of reasons
explaining the prosecutor’s denial of a Graves Act waiver is
insufficient on its own to allow defendant to meet his Alvarez
burden. Defendant asserts that the only way to determine
whether the relevant sentencing factors were appropriately
considered by the prosecutor, without discrimination, would be
to compare all cases in which a waiver was granted. Defendant
further cautions that to require the assignment judge or his or
her designee3 to rely solely on experience to identify
discriminatory conduct, rather than on cases for comparison,
would deprive the Appellate Division of a sufficient record.
Because sentencing is a judicial function, defendant argues
that judicial oversight of Graves Act waiver decisions is
3 Assignment judges may delegate the responsibility of hearing Graves Act waiver motions to the Criminal Presiding Judge. Administrative Office of the Courts, Memorandum, Motions in Graves Act Cases – Delegable by Assignment Judge to Criminal Presiding Judge (Nov. 21, 2008); see also R. 1:33-6(a). 10 required. Defendant highlights this Court’s precedent requiring
meaningful judicial review of prosecutorial decisions that
result in mandatory sentences. Defendant therefore asks the
Court to require: (1) prosecutors to supply defendants with the
case-specific memorializations described in the Directive as an
explanation of their Graves Act waiver decisions; (2)
prosecutors to provide access to the memorializations of their
waiver decisions in the cumulative files that are required by
the Directive; and (3) the Attorney General to make relevant
statewide records available, in order to prevent inter-county
disparities.
C.
Amicus ACLU concedes that in some instances, a statement of
reasons alone is sufficient to demonstrate a prosecutor’s
arbitrary conduct. Nonetheless, the ACLU maintains that
discovery is often necessary to demonstrate arbitrary or
discriminatory Graves Act waiver decisions. The ACLU suggests
that, in addition to the statement of reasons in a defendant’s
own case, a defendant should receive police reports and the
prosecutor’s statements of reasons from cases in which the
prosecutor approved Graves Act waivers. Such information, the
ACLU asserts, will enable defendants and judges to determine how
prosecutors identify and balance the aggravating and mitigating
factors with different defendants. Echoing defendant, the ACLU
11 stresses that the Directive requires prosecutors to maintain a
cumulative file of Graves Act waiver cases, which defendants
should be able to access, because the responsibility to “ferret
out” arbitrary or discriminatory action should not belong to the
assignment judge or designee.
III.
“The [Graves] Act makes the use or possession of a firearm
during the commission, attempted commission, or flight from the
commission of certain designated offenses a sentencing factor
that triggers the imposition of a mandatory term of
imprisonment.” State v. Franklin, 184 N.J. 516, 529 (2005).
For example, at the time defendant was charged, the Graves Act
required that those convicted of possession of a weapon for an
unlawful purpose serve a minimum custodial sentence “at, or
between, one-third and one-half of the sentence imposed by the
court or three years, whichever is greater.” N.J.S.A. 2C:43-
6(c) (2008).
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. State v. Des Marets, 92 N.J. 62, 71
(1983). Thus, even if the trial court finds that the mitigating
factors of N.J.S.A. 2C:44-1(b) outweigh the aggravating factors
12 listed in subsection (a) of that statute, the court must still
impose the minimum term of incarceration. State v. Towey, 114
N.J. 69, 82 (1989).
To mitigate the undue severity that might accompany the
otherwise automatic application of the mandatory minimum
sentence under the Graves Act, the Legislature included section
6.2, 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.
Section 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 refer a case of a defendant who has not previously been convicted of an offense under that subsection to the assignment judge, with the approval of the prosecutor, if the sentencing court believes that the interests of justice would not be served by the imposition of a mandatory minimum term.
[N.J.S.A. 2C:43-6.2.]
In other words, an eligible defendant may be sentenced to either
probation or a one-year custodial term during which he or she is
disqualified from being paroled. Ibid. The relief that section
13 6.2 affords can arise in two ways: either the prosecutor makes
a motion to the assignment judge for a waiver of the mandatory
minimum penalty, or the sentencing judge refers the matter to
the assignment judge if the prosecutor approves the referral.
Ibid. In either scenario, the prosecutor must approve the
waiver before the assignment judge or his or her designee
imposes one of the two reduced penalties. Ibid.
In 2008, the New Jersey Attorney General issued a directive
“to ensure statewide uniformity in the exercise of prosecutorial
discretion in implementing” the Graves Act. Directive, supra,
at 10. The Directive instructs a prosecutor contemplating a
waiver to “consider all relevant circumstances concerning the
offense conduct and the offender,” such as applicable
aggravating and mitigating factors under N.J.S.A. 2C:44-1 and
the likelihood of the defendant’s conviction at trial. Id. at
12. Once a prosecutor moves for or consents to a waiver, the
Directive requires the prosecutor to specify which reduced
penalty would best serve the “interests of justice”: either a
mandatory minimum one-year period of incarceration or a
probationary term. Id. at 14.4 If a prosecutor seeks probation,
4 The prosecutor’s recommendation is not binding upon the court: “[a]lthough the prosecutor . . . may argue in favor of a probationary term or a custodial sentence with a one-year period of ineligibility, nothing in the statute suggests that the 14 he or she must explain why imposition of a one-year custodial
term would constitute a serious injustice. Id. at 13-14.
The Directive also contains specific record-keeping
requirements.
The prosecuting agency shall document in the case files 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. 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).
assignment judge or designee must accept the prosecutor’s recommendation.” State v. Nance, ___ N.J. ___, ___ (2017) (slip op. at 17). Indeed, “the authority to elect one of the two sentences set forth in section 6.2 is clearly vested in the assignment judge, or, by administrative directive, the presiding judge acting as the assignment judge’s designee.” Ibid. 15 Therefore, whether or not a prosecutor moves for a waiver, his
or her analysis of all aggravating and mitigating factors is
recorded. Id. at 13. The cumulative file facilitates periodic
audits by the Attorney General to “ensure the proper and uniform
implementation of this Directive.” Id. at 14. Finally, on a
quarterly basis, prosecutors must report to the Attorney General
the number of pre- and post-indictment pleas in which the
prosecutor moved for, or consented to, a Graves Act waiver.
Ibid.
IV.
Before addressing the issue raised in this appeal, we must
first determine whether sufficient procedural safeguards are in
place to protect a defendant’s right to challenge the denial of
a Graves Act waiver.
Our analysis is aided by examining challenges to the
statutory delegation of sentencing discretion to prosecutors in
the Comprehensive Drug Reform Act (CDRA), N.J.S.A. 2C:35-1 to
36A-1. The CDRA was enacted to aggressively battle drug abuse
and drug-related crime. N.J.S.A. 2C:35-1.1(c). Like the Graves
Act, the CDRA was designed to “provide for the strict
punishment, deterrence and incapacitation of the most culpable
and dangerous drug offenders,” ibid., and therefore mandates
parole ineligibility periods for certain drug-related crimes.
16 In 1992, this Court decided State v. Lagares, which
involved the constitutionality of the prosecutor’s power under
N.J.S.A. 2C:43-6(f) to seek a mandatory extended term5 for repeat
offenders of the CDRA, even though “extended terms are
ordinarily discretionary with the court.” 127 N.J. 20, 23
(1992). In the same year, this Court also decided State v.
Vasquez, where the defendant challenged N.J.S.A. 2C:35-12, which
vests the prosecutor with discretion to waive the CDRA’s
mandatory minimum term of incarceration through a negotiated
plea or post-conviction agreement. 129 N.J. 189, 196 (1992).
In both cases, we upheld the statutory delegation of sentencing
discretion to prosecutors, provided that (1) the Attorney
General promulgated guidelines to help prosecutors uniformly
apply the statute; (2) prosecutors stated on the record the
reasons supporting their decision in order to enable judicial
review and ensure compliance with the guidelines; and (3) a
court could review and overturn the prosecutor’s decision if a
defendant demonstrates that the prosecutor acted arbitrarily and
5 New Jersey’s Criminal Code “provides for ordinary sentences [] as well as extended-term sentences that carry greater punishment for the same crime.” State v. Robinson, 217 N.J. 594, 606-07 (2014) (citing State v. Pierce, 188 N.J. 155, 161 (2006)). For example, a second-time Graves Act offender may face an extended term between five and ten years, if convicted of a third-degree offense; ten and twenty years, if convicted of a second-degree offense; or thirty years and life imprisonment, if convicted of a first-degree offense. N.J.S.A. 2C:43-7. 17 capriciously. Lagares, supra, 127 N.J. at 28-33; Vasquez,
supra, 129 N.J. at 195-96; see also State v. Brimage, 153 N.J.
1, 24 (1997) (rejecting Attorney General’s guidelines for
formalizing disparity throughout state).
We now consider whether the Graves Act provides the
procedural safeguards required by this Court in Lagares and
Vasquez.
First, written guidelines exist to channel prosecutorial
discretion. See Vasquez, supra, 129 N.J. at 196. The Directive
instructs prosecutors how to uniformly apply the Graves Act and
section 6.2. Directive, supra, at 3. Not only does the
Directive set forth general rules for prosecutors when
considering charges, dismissals, and extended terms, id. at 5-7,
but it also provides clear parameters for prosecutors
contemplating a waiver, id. at 10-15. The Directive ensures
even application throughout the state by requiring all
prosecutors to consider the same factors and adhere to the same
plea procedures. While the possibility exists that, in similar
circumstances, prosecutors in different counties may reach
different Graves Act waiver conclusions, we have recognized that
some disparity in sentencing is inevitable. Brimage, supra, 153
N.J. at 22.
18 Second, the Directive requires prosecutors to “document in
the case file [their] analysis of all the relevant aggravating
and mitigating circumstances,” even if a Graves Act waiver is
not being sought. Directive, supra, at 13. The Appellate
Division concluded in this case that under this provision of the
Directive, the prosecutor was obligated to provide defendant
with “written reasons for withholding [his] consent to a waiver”
at the time the prosecutor made that decision. Benjamin, supra,
442 N.J. Super. at 265. The State concedes that this is
appropriate to facilitate judicial review for the arbitrary or
discriminatory exercise of prosecutorial discretion.
Third, since the Appellate Division’s 1991 decision in
Alvarez, upholding section 6.2, defendants have been able to
seek judicial review of prosecutors’ waiver decisions. In order
to do so, a defendant must, by motion to the assignment judge,
demonstrate “arbitrariness constituting an unconstitutional
discrimination or denial of equal protection” in the
prosecutor’s decision. Alvarez, supra, 246 N.J. Super. at 148;
Watson, supra, 346 N.J. Super. at 535 (explaining defendant must
show “prosecutor’s refusal [was] a patent and gross abuse of
discretion”). Once a defendant makes this threshold showing,
the defendant can obtain a hearing to review the prosecutor’s
decision if the assignment judge concludes that the “interests
of justice” so require. Alvarez, supra, 246 N.J. Super. at 148-
19 49. This judicial backstop 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. Id. at 146-47.
Therefore, prosecutors are guided by standards, inform
defendants of the basis for their decisions, and are subject to
judicial oversight. Accordingly, we conclude that the Graves
Act affords meaningful judicial review of a prosecutor’s
decision to deny a Graves Act waiver.
We now turn to the question posed in this appeal: whether
defendants are entitled to discovery of the Directive-mandated
“case-specific memorializations” and cumulative files of
prosecutorial decisions to recommend waivers for cases other
than their own.
Defendant and the ACLU submit that the only way for
defendant to know if the prosecutor fairly ascribed and weighed
the applicable aggravating and mitigating factors is to compare
defendant’s case to those of similarly situated defendants.
Defendant claims that this information is contained in the
“case-specific memorializations” and “cumulative files.” See
Directive, supra, at 13-14.
All case-specific files should contain a statement of
reasons which, upon a defendant’s Alvarez motion, the assignment
20 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. Conversely, additional case-
specific information is contained in case and cumulative files
for administrative reasons because those files function as
internal documents, the primary purpose of which is to allow
prosecutors to assess the case and the Attorney General to
conduct audits to ensure compliance with the Directive. Id. at
14. Due to the administrative nature of the case and cumulative
files, we do not find that any case-specific information beyond
a statement of reasons was intended to be accessed by a Graves
Act defendant seeking to demonstrate that the prosecutor acted
arbitrarily.
Moreover, this Court has never mandated discovery to aid
defendants in demonstrating arbitrary and capricious conduct or
disparate treatment without a preliminary showing. As stated in
Alvarez, supra, a defendant may obtain a hearing to review the
prosecutor’s decision only after he or she has demonstrated in a
motion that the prosecutor abused his or her discretion. 246
N.J. Super. at 148-49. In State v. Sutton, when a defendant
challenged the prosecutor’s denial of PTI, this Court held that
the defendant could not prevail merely because she could show
that the prosecutor approved PTI for others “charged with
similar offenses.” 80 N.J. 110, 120 (1979). Rather, the
21 defendant needed to prove that she received “less favorable
treatment than identically situated individuals.” Ibid. The
Court remanded the case to give the defendant the opportunity to
show that the prosecutor relied on “irrelevant or inappropriate
factors,” thereby abusing his discretion in rejecting the
defendant’s PTI application. Id. at 119, 121. Importantly, the
Court clarified that its “holding . . . should not be read as
granting PTI applicants a license to subpoena prosecutorial
files.” Id. at 120. Nor would this Court allow defendants to
“interrogate prosecutors under oath” to substantiate allegations
of “less favorable treatment than other similarly situated
individuals.” Ibid. To the contrary, we repeatedly stated that
defendants must support their claims by “independently secured
evidence.” Ibid.
While Rule 3:13-3 provides that “a defendant has a right to
automatic and broad discovery of the evidence the State has
gathered in support of its charges,” State v. Scoles, 214 N.J.
236, 252 (2013), it does not require the prosecutor to furnish a
defendant with files from cases other than his or her own. See
R. 3:13-3; cf. State v. Hernandez, 225 N.J. 451 (2016). We
therefore conclude that defendants are not entitled to discovery
of a prosecutor’s case-specific memorializations and cumulative
files when challenging the denial of a Graves Act waiver in an
Alvarez motion because there are sufficient procedural
22 safeguards in place for meaningful judicial review of a
prosecutor’s waiver decision.
VI.
For the reasons set forth above, the judgment of the
Appellate Division is affirmed as modified.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
23 SUPREME COURT OF NEW JERSEY A-43 September Term 2015 076612
JUSTICE ALBIN dissenting.
Defendants convicted of Graves Act offenses are subject to
mandatory-minimum periods of incarceration. N.J.S.A. 2C:43-
6(c). Under the Graves Act, the prosecutor is vested with the
statutory authority to file a motion with the Assignment Judge
to waive the imposition of the mandatory-minimum sentence.
N.J.S.A. 2C:43-6.2. Prosecutors may not exercise their waiver
authority in a way that results in similarly situated defendants
receiving disparate sentences. See State v. Alvarez, 246 N.J.
Super. 137, 148-49 (App. Div. 1991). The adversarial process
has a role to play in checking the abuse of prosecutorial
discretion and ensuring that waiver decisions do not undermine
the goal of uniformity in sentencing, which is the primary
objective of the Code of Criminal Justice. That role, however,
cannot be fulfilled if the defense is denied relevant discovery.
The majority affords defendants the right to a statement of
1 reasons when the prosecutor denies a Graves Act waiver. Yet,
the majority denies defendants the very information necessary to
establish discriminatory or unequal treatment -- access to the
reasons given for the grant or denial of Graves Act waivers in
other cases. Granting that minimal discovery right would not
cause undue administrative inconvenience, but it would place a
check on the potential abuse of the waiver process and promote
greater consistency in sentencing.
Because the majority’s denial of this limited discovery
right disserves the goals of uniformity in sentencing, I
respectfully dissent.
The majority acknowledges that a prosecutor who denies a
defendant a waiver from the mandatory sentencing provisions of
the Graves Act must provide a statement of reasons explaining
that decision. In addition, the case-specific reasons for the
prosecutor’s decision are kept in a centralized file pursuant to
an Attorney General Directive. Directive to Ensure Uniform
Enforcement of the “Graves Act” 13-14 (Oct. 23, 2008, as
corrected Nov. 25, 2008). Each county prosecutor is required to
maintain a “separate cumulative file” so that the Attorney
General can “ensure the proper and uniform implementation of
this Directive.” Id. at 14. This procedure advances the goal
of “statewide uniformity in the exercise of prosecutorial
2 discretion in implementing” the Graves Act. Id. at 10.
A defendant can mount a successful challenge to the denial
of a waiver from a mandatory Graves Act sentence only if it can
be shown that the prosecutor’s decision was arbitrary -- that
is, the decision amounts to “an unconstitutional discrimination
or denial of equal protection constituting a ‘manifest
injustice.’” Alvarez, supra, 246 N.J. Super. at 148. The
prosecutor’s separate cumulative file, detailing the case-
specific reasons for waiver denials, contains the information
that will reveal whether a defendant’s treatment and sentence is
so disparate from that of other similarly situated defendants
that it constitutes “unconstitutional discrimination or denial
of equal protection.” See ibid. Although the Attorney General
can audit the separate cumulative file, the defendant -- who
will suffer the consequences of discriminatory treatment --
cannot.
I see no reason why a defendant should not have access to
the separate cumulative file (with the redaction of any
confidential information) or, at the very least, to the
statements of reasons given to the Assignment Judge for granting
or denying waivers. The statements of reasons provided to the
Assignment Judge are public documents. In our adversarial
system, the defendant is not required to trust the prosecutor to
protect the defendant’s interests and may insist on
3 verification. Defendants are not expected to rely on the
kindness of the prosecutor. Defendants have a right to
challenge in a meaningful way a claimed abuse of a waiver
decision.
Permitting the discovery of the prosecutor’s statements of
reasons for denying Graves Act waivers is consonant with the
Code of Criminal Justice. “The dominant, if not paramount, goal
of the Code is uniformity in sentencing.” State v. Natale, 184
N.J. 458, 485 (2005) (quoting State v. Kromphold, 162 N.J. 345,
352 (2000)). The Code recognizes “that similarly situated
defendants [should] not receive dissimilar sentences.” Ibid.
Given the broad sentencing discretion granted to prosecutors in
Graves Act cases -- the discretion to waive the imposition of
the mandatory-minimum term of imprisonment pursuant to N.J.S.A.
2C:43-6.2 -- the presence of checks becomes all the more
important.
Access to statements of reasons given in other Graves Act
waiver cases may assure defendants that they have been treated
fairly. And, in those instances where they believe they have
not, they will have relevant information to press their cases of
unequal or discriminatory treatment.
Further, there is no good reason to deny defendants access
to statements of reasons filed with the Assignment Judge in
other waiver cases, whether those statements are in the
4 prosecutor’s cumulative file or in the judiciary’s hands.
Nothing prevents the judiciary from maintaining those statements
in a central file so that historical information will be
available to prosecutors, defendants, and assignment judges. I
agree with the majority that defendants should not have free
rein to forage through files of other cases for irrelevant
information, even in light of the broad discovery available in
criminal cases. See State v. Hernandez, 225 N.J. 451, 463
(2016) (“However expansive our discovery rule and jurisprudence
may be, they do not sanction rummaging through irrelevant
evidence.”). But defendant’s discovery request was directly
related to his claim of disparate treatment, and relevance is
the key to a defendant’s right to discovery. See State v.
Scoles, 214 N.J. 236, 251 (2013); R. 3:13-3(c). A limited right
of discovery to the statements of reasons already memorialized
on the issue of waiver is directly relevant and would ensure
that justice is dispensed fairly and uniformly.
II.
The right to challenge unconstitutional discrimination or
denial of equal protection in Graves Act waiver cases is a
hollow right if defendants are denied basic information
necessary to assert that right. I therefore respectfully
dissent.