STATE OF NEW JERSEY VS. JORDAN X. SMITH (18-01-0069, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2840-18T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JORDAN X. SMITH,
Defendant-Respondent.
____________________________
Submitted August 4, 2020 – Decided August 17, 2020
Before Judges Rothstadt and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 18-01-
0069.
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for appellant (Patrick F. Galdieri,
II, Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for
respondent (Alyssa A. Aiello, Assistant Deputy Public
Defender, of counsel and on the brief).
PER CURIAM
The State appeals from the probationary sentence imposed by the Law
Division on second-degree Graves Act charges. For the reasons that follow, we
vacate defendant's judgment of conviction and remand.
I.
We derive the following facts from the record. On October 21, 2017, a
South Brunswick Township police officer stopped defendant Jordan X. Smith.
Defendant was driving his mother, Nicole Andrews's vehicle when he was
stopped by a South Brunswick Township police officer for turning without using
a turn signal. He was visiting friends near his home. At the scene, defendant
advised the officer that he had an outstanding traffic warrant and a suspended
license because he failed to pay a traffic ticket for a seatbelt violation.
Andrews arrived on the scene and consented to a search of her vehicle,
which uncovered a bag with six prednisone pills in the console. Defendant was
then arrested and searched, which yielded a defaced .25-caliber handgun
concealed in his pants leg. He did not have a permit to possess or carry a
handgun. At the time of his arrest, defendant was a twenty-three-year-old high
school graduate, with some community college education, living with family
members and working full-time in construction. As a juvenile, defendant
successfully completed a diversion program for committing disorderly persons
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offenses. As an adult, defendant received a conditional discharge for marijuana
possession from a municipal court.
On January 12, 2018, a Middlesex County grand jury charged defendant
with: second-degree unlawful possession of a .25-caliber handgun, N.J.S.A.
2C:39-5(b)(1) (count one); fourth-degree possession of a defaced firearm,
N.J.S.A. 2C:39-3(d) (count two); fourth-degree unlawful purchase or acquisition
of handgun ammunition, N.J.S.A. 2C:58-3.3(b) (count three); and fourth-degree
unlawful possession of a prescription drug, prednisone, N.J.S.A. 2C:35-
10.5(e)(2) (count four). In addition, defendant was issued four motor vehicle
summonses, including driving with a suspended license, N.J.S.A. 39:3-40.
On April 22, 2018, defendant's counsel sent a letter to the Middlesex
County prosecutor seeking a Graves Act waiver pursuant to N.J.S.A. 2C:43-6.2.
Defendant explained that he lives with his mother and two younger siblings; is
a church member; and "has never been afraid of hard work." Letters from family
members and friends were submitted to the prosecution attesting to defendant 's
good character and work ethic. In a June 19, 2018 reply letter, the prosecutor
denied defendant's request. On June 24, 2018, defendant filed a motion under
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State v. Alvarez1 appealing the prosecutor's denial of the Graves Act waiver to
the assignment judge.
Following oral argument on July 30, 2018, the former assignment judge
rendered an oral opinion granting defendant's application for a Graves Act
waiver. In reaching his decision, the judge noted discovery was not required,
that "there is no violence here" and "no commission of any other crime . . . other
than the possessory crime of the gun . . . ." After reviewing the Graves Act
waivers extended in the vicinage, the judge concluded the prosecutor's denial of
the waiver in this case was "an arbitrary and capricious decision," and that the
prosecutor had "invited" defendant to apply for a waiver.
Additionally, the judge stated that "[F]ive years with a three[-]and[-]
a[-]half[-]year parole disqualifier is not justice." The judge acknowledged
"there is a presumption for incarceration" and unless the presumption is
overcome at sentencing, defendant "would have to serve at least one year
without parole eligibility." A memorializing order was entered on July 31, 2018.
On August 27, 2018, defendant appeared before a different judge and pled
guilty to all four counts of the indictment. In exchange for his guilty plea, the
State agreed not to make a specific sentencing recommendation.
1
246 N.J. Super. 137 (App. Div. 1991).
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On December 7, 2018, defendant again appeared before the assignment
judge and withdrew his guilty plea. Defendant entered a new guilty plea to the
unlawful possession of a .25-caliber handgun and the driving with a suspended
license charges. In exchange for his revised guilty plea, the State agreed to
recommend that defendant be sentenced to an aggregate three-year term of
imprisonment with a one-year period of parole ineligibility, along with dismissal
of the other charges.
On the sentencing date, after hearing from defendant, his counsel, great
aunt, and the State, the former assignment judge made findings regarding the
applicable aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and
N.J.S.A. 2C:44-1(b). The judge found one aggravating factor nine (the need to
deter defendant and others from violating the law), which he gave weight to.
However, the judge rejected the State's argument that aggravating factor three
(the risk defendant will commit another offense) applied. The State argued
defendant's juvenile complaint, which was diverted, and his adult charge for
possession of under fifty grams of marijuana, which resulted in a conditional
discharge, supported aggravating factor number three.
The judge found mitigating factors one (defendant's conduct neither
caused nor threatened serious harm); two (defendant did not contemplate that
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his conduct would cause or threaten serious harm); seven (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); eight
(defendant's conduct was the result of circumstances unlikely to recur); nine (the
character and attitude of defendant indicate he is unlikely to commit another
offense); and ten (defendant is particularly likely to respond affirmatively to
probationary treatment), which the judge afforded substantial weight .
Furthermore, the judge stated defendant did not possess the handgun with the
intent to "go out there and commit crimes" and he did not cause or threaten any
harm.
After weighing the factors, the letters written on behalf of defendant, his
therapist's report, and the character of defendant, the judge held "this is a mere
possessory offense," and defendant carried the gun "for self-protection because
he worked in New York City and was concerned." The judge concluded it would
be an injustice for defendant to receive a prison term. Consequently, the judge
sentenced defendant to an aggregate five-year probationary term for a
"regulatory offense." All remaining charges were dismissed, and appropriate
fines were imposed.
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On appeal, the State raises a single point for our consideration:
POINT ONE
[THE JUDGE] ERRED IN SENTENCING
DEFENDANT TO NON-CUSTODIAL PROBATION
BECAUSE THIS WAS NOT THE EXCEPTIONAL
CASE WHERE A PRISON SENTENCE WOULD BE
A SERIOUS INJUSTICE THAT OVERRIDES THE
NEED TO DETER.
Having reviewed the record in light of governing principles, we conclude
that the judge did not provide any explanation under N.J.S.A. 2C:44 -1(d)
addressing the "serious injustice" exception to the presumption of imprisonment
for this second-degree crime or make required findings under Rule 1:7-4.
Accordingly, we vacate the sentence and remand for resentencing before the
current assignment judge.
II.
Because the issue raised on appeal implicates the legality of the sentence
imposed, our review of the judge's decision is de novo. See State v. Nance, 228
N.J. 378, 393 (2017). We therefore "afford[] no special deference to the
[judge's] interpretation of the relevant statutes." Ibid.; see also State v. Grate,
220 N.J. 317, 329 (2015).
The State argues the judge erred by imposing a non-custodial probationary
sentence "in derogation of the exacting standards" for presumption of
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incarceration for a second-degree crime under N.J.S.A. 2C:44-1(d). Because
the "serious injustice" exception to the presumption of imprisonment has not
been demonstrated here, the State contends a reversal and remand for
resentencing is warranted.
"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.'" Nance, 228
N.J. at 390 (quoting State v. Des Marets, 92 N.J. 62, 68 (1983)).
As amended, the statute applies to a defendant who is
convicted of one of the offenses enumerated in the
statute "who, while in the course of committing or
attempting to commit the crime, including the
immediate flight therefrom, used or was in possession
of a firearm as defined in [N.J.S.A.] 2C:39-1(f)."
[Ibid. (alteration in original) (quoting Des Marets, 92
N.J. at 64 n.1).]
The Graves Act requires the imposition of a minimum term "fixed at one-
half of the sentence imposed by the court or [forty-two] months, whichever is
greater, or [eighteen] months in the case of a fourth[-]degree crime, during
which the defendant shall be ineligible for parole." N.J.S.A. 2C:43-6(c). "To
mitigate the undue severity that might accompany the otherwise automatic
application of the mandatory minimum sentence under the Graves Act," N.J.S.A.
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2C:43-6.2 (Section 6.2) provides "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." State v. Benjamin, 228 N.J. 358,
368 (2017).
Pursuant to Section 6.2,
On a motion by the prosecutor made to the assignment
judge that the imposition of a mandatory minimum term
of imprisonment under . . . [N.J.S.A. 2C:43-6(c)] for a
defendant who has not previously been convicted of an
offense under that subsection . . . 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.
[N.J.S.A. 2C:43-6.2.]
In accordance with Alvarez, defendants may "appeal the denial of a waiver to
the assignment judge upon a showing of patent and gross abuse of discretion by
the prosecutor." Benjamin, 228 N.J. at 364.
To make the showing delineated in Alvarez, "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." Benjamin, 228 N.J. at 372 (quoting Alvarez, 246 N.J. Super. at 148).
"Once a defendant makes this threshold showing, the defendant can obtain a
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hearing to review the prosecutor's decision if the assignment judge concludes
that the 'interests of justice' so require." Id. at 372-73.
In 2008, the New Jersey Attorney General issued a directive to prosecutors
"'to ensure statewide uniformity in the exercise of prosecutorial discretion in
implementing' the Graves Act." Id. at 369 (quoting the Attorney General
Directive to Ensure Uniform Enforcement of the "Graves Act" (Oct. 23, 2008,
as corrected Nov. 25, 2008) (the Directive)). "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." Ibid. (quoting the Directive at 12).
Under the Directive, "[t]he prosecuting agency as part of the State's initial
plea offer shall agree to move pursuant to [N.J.S.A.] 2C:43-6.2 for a reduction
to a one-year term of parole ineligibility," unless (1) the defendant is ineligible
for a waiver due to a prior conviction for a Graves Act offense, (2) there is
"substantial likelihood that the defendant is involved in organized criminal
activity," (3) "the prosecuting agency determines that the aggravating factors
applicable to the offense conduct and offender outweigh any applicable
mitigating circumstances" or (4) "the prosecuting agency determines that a
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sentence reduction to a one-year term of parole ineligibility would undermine
the investigation or prosecution of another." Directive at 7-14.
When considering a defendant's Alvarez motion, the assignment judge
may consider, in assessing the prosecutor's conduct, case-specific files in
assessing the prosecutor's reasons not to grant a waiver for a particular
defendant. Benjamin, 228 N.J. at 373. "This judicial backstep 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. Here, the State challenges the judge's finding that
this is the exceptional case where imprisonment will not serve any deterrence
purpose and imprisonment would constitute a serious injustice.
We conclude from our review that the judge made no findings of fact or
conclusions of law when he decided defendant's motion. A trial court is required
"by an opinion or memorandum decision, either written or oral, [to] find the
facts and state its conclusions of law thereon . . . on every motion decided by a
written order that is appealable as of right." R. 1:7-4(a).
"Mere invocation of the serious injustice exception will not suffice
without a detailed explanation of its application to the facts and circumstances
at hand and a reasoned demonstration that this is one of those rare cases in which
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the otherwise paramount goals of deterrence have been overridden." State v.
Lebra, 357 N.J. Super. 500, 511 (App. Div. 2003). Without that detailed
explanation, the exception is not met. Ibid.
We conclude from our review that we are unable to perform our appellate
function because the judge failed to make the necessary findings of fact
supporting his determination or otherwise sufficiently expressing his reasoning
that the serious injustice exception to the presumption of imprisonment applies
here. The judge simply concluded this was "a regulatory offense," and a
probationary sentence would serve the interests of justice.
Defendant's status as a first-time offender, his full-time employment in
construction, and aspirations of becoming a crane operating engineer, while
commendable, do not automatically qualify him as "idiosyncratic." The judge
failed to make the requisite findings on this important issue. Further, the judge
made no detailed findings that defendant showed a serious injustice would occur
if he was incarcerated.
Without specific findings made by the judge as noted above, as in Evers,
"we cannot agree that the sum of [defendant's] circumstances is so rare and
extraordinary that the 'human cost' of defendant's imprisonment exceeds
society's imperative need to deter others . . . ." Id. at 401. We are therefore
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constrained to vacate the order under review and remand for resentencing before
the current assignment judge.
III.
We reject defendant's argument that the State's appeal is barred by the
doctrine of double jeopardy. By operation of law, a court's sentence does not
become final for ten days "if the court imposes a non[-]custodial or probationary
sentence upon conviction for a crime of the first or second degree" to permit the
State to contest the sentence imposed. N.J.S.A. 2C:44-1(f)(2). "[E]xecution of
[a] sentence shall be stayed pending appeal by the State pursuant to N.J.S.A.
2C:44-1(f)(2) . . . ." R. 2:9-3(c). A defendant "may elect to execute a sentence
stayed by the State's appeal but such election shall constitute a waiver of the
right to challenge any sentence on the ground that execution has commenced."
R. 2:9-3(c).
"Because defendants are charged with notice of the statute, they have no
reasonable expectation that their sentences will be final until either the time for
appeal expires without appeal by the State or a timely appeal is resolved." State
v. Johnson, 376 N.J. Super. 163, 171-72 (App. Div. 2005); see also Sanders, 107
N.J. 609, 620 (1987). Therefore, any defendants who received a lenient sentence
under this Code, cannot "legitimately have expected that their sentences were
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final when pronounced." Sanders, 107 N.J. at 620. "The clear and unambiguous
terms of the statute remove any expectation of finality that a defendant may vest
in his sentence; its stay provisions ensure that he will not begin serving that
sentence until the State's notice of appeal is filed." Id. at 621.
Defendant does not contest the above statutory framework, but instead
challenges that he was sentenced to a probationary term stemming from the
"escape valve" of the Graves Act, N.J.S.A. 2C:43-6.2, and not N.J.S.A. 2C:44-
1. Because the Graves Act does not include a similar ten-day stay provision,
defendant in this case claims he could not have been charged with knowledge of
an automatic stay.
Our Court has construed N.J.S.A. 2C:43-6.2 and N.J.S.A. 2C:44-1(f)(2)
as two harmonized components of the Code's sentencing scheme. In Nance, the
Court explained that "N.J.S.A. 2C:44-1(d) governs the sentencing of any 'person
who has been convicted of a crime of the first or second degree,' with no
exception for defendants who are granted a Graves Act waiver." 228 N.J. at
396.
Moreover, "[b]ecause one of the two alternative sentences permitted under
section 6.2—a custodial term with a mandatory minimum of one year—
constitutes a 'sentence of imprisonment' within the meaning of N.J.S.A. 2C:44 -
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1(d), [a] . . . judge may comply with [both provisions] at once." Ibid. Therefore,
the Court concluded that the presumption of incarceration in N.J.S.A. 2C:44 -1
applies when a judge chooses between the alternative sentences of the Graves
Act. Id. at 397.
Because the analytical framework of choosing between the two alternative
sentences under N.J.S.A. 2C:43-6.2 necessarily includes an analysis under
N.J.S.A. 2C:44-1 and since the judge specifically referenced his analysis under
N.J.S.A. 2C:44-1(f)(2), we conclude defendant was charged with notice of the
statutes. Consequently, the automatic ten-day stay allowing the State to appeal
applies, and the State's appeal does not violate defendant's right against double
jeopardy. See Sanders, 107 N.J. at 621.
Vacated and remanded for resentencing in conformity with this opinion.
We do not retain jurisdiction.
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