State of New Jersey v. Kassey Benjamin , 442 N.J. Super. 258 ( 2015 )


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  •                   NOT FOR PUBLICATION WITHOUT THE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