STATE OF NEW JERSEY VS. JOHN A. VICARIÂ (15-04-1036, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3887-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN A. VICARI, a/k/a
JOHN ARTHUR VICARI,
Defendant-Appellant.
_______________________________
Submitted May 25, 2017 - Decided July 6, 2017
Before Judges Lihotz and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
15-04-1036.
Joseph E. Krakora, Public Defender, attorney
for appellant (Ruth E. Hunter, Designated
Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (John J. Santoliquido,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant John A. Vicari pled guilty to second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a), after being indicted for this and other offenses. According
to the State's plea offer, all other charges would be dismissed
and the State would recommend a minimum five-year sentence, subject
to a forty-two-month period of parole ineligibility, pursuant to
the Graves Act, N.J.S.A. 2C:43-6(c).
Prior to sentencing, defendant, a first-time offender, filed
a request for the prosecutor to waive the mandatory minimum
sentence, in favor of a probationary sentence, or alternatively,
to reduce the period of parole ineligibility, as provided by an
amendment to the Graves Act. See N.J.S.A. 2C:43-6.2 (Section
6.2). The prosecutor rejected the request, and defendant sought
review by the Presiding Judge of the Criminal Part. The judge
reviewed the matter and issued an oral opinion, reduced to writing,
on April 15, 2016. The judge concluded the prosecutor's decision
not to request a waiver under Section 6.2 did not represent a
patent and gross abuse of discretion. The judge imposed sentence
in accordance with the recommendation in the plea agreement.
On appeal, defendant argues:
THIS COURT SHOULD VACATE THE ORDER DENYING
DEFENDANT'S APPLICATION UNDER THE GRAVES ACT
ESCAPE VALVE, N.J.S.A. 2C:43-6.2, AND REMAND
FOR RESENTENCING. (Raised Below).
Following review, we reject defendant's arguments challenging
the denial of a Graves Act waiver to provide a probationary
sentence. However, we remand for further review of the denial of
2 A-3887-15T4
a Section 6.2 waiver to reduce the mandatory period of parole
ineligibility, implicating weighing of the applicable aggravating
and mitigating factors, because we conclude the judge's analysis
was flawed.
During the February 2, 2016 plea hearing, defendant
voluntarily sought to plead guilty, accepting the terms of the
negotiated plea agreement. He testified during the hearing, after
waiving his right to call witnesses or proceed to trial. He
confirmed he read each page and understood the plea agreement,
including the maximum sentence he faced if convicted of the charged
offense, which he understood was a crime governed by the Graves
Act. Defendant also understood the State recommended a sentence
of five years with a forty-two-month period of parole
ineligibility. In addition, he agreed he had sufficient time to
consult and review the agreement terms with his attorney, who
answered all of his questions and whose advice, regarding the
agreement and plea, he found satisfactory.
Defendant confirmed he was pleading guilty because he was
guilty. He provided the following factual basis supporting his
plea.
On December 14, 2014, defendant, while in his residence
located on Fifth Avenue in Estelle Manor, engaged in a domestic
dispute with his roommate, Ed Raff. Defendant kept a Smith &
3 A-3887-15T4
Wesson .357 Magnum in his bedroom, which he lawfully owned and was
licensed to possess. He retrieved the gun and aimed the weapon
at Raff, intending to frighten or threaten him.1 Defendant
admitted his purpose in retrieving the weapon was unlawful. 2
Defendant requested the prosecutor waive the mandatory
minimum penalties imposed by the Graves Act. In addition to
advancing the factors he believed supported waiver, he also
identified similar cases where the prosecutor requested waiver.
Notwithstanding defendant's presentation, the prosecutor declined
to request waiver. Defendant sought review by the court.
The judge reviewed the written submissions and determined a
hearing was warranted. At the close of arguments, the judge
entered a bench opinion, which he later reduced to writing. He
concluded the prosecutor's decision not to request a Section 6.2
waiver was not discriminatory or an abuse of discretion. The
judge imposed the sentence as recommended in the plea agreement.
This appeal ensued.
1
The pre-sentence report recounts defendant's statement that
after he threatened Raff he pointed the gun at his own head and
threatened to kill himself.
2
Ultimately police arrested defendant, who was driving his
vehicle while under the influence of alcohol. Defendant admitted
he drank "about one-half pint," and was impaired when police
stopped his car.
4 A-3887-15T4
Defendant's appeal initially was listed on this court's
September 21, 2016 excessive sentence oral argument calendar. R.
2:9-11. The reviewing panel ordered the matter relisted for
plenary review.
"Appellate review of sentencing decisions is relatively
narrow and is governed by an abuse of discretion standard." State
v. Blackmon, 202 N.J. 283, 297 (2010). We do not defer to legal
determinations made by the trial judges, State v. Bolvito, 217
N.J. 221, 228 (2014), on these issues our review is de novo. State
v. Gandhi, 201 N.J. 161, 176 (2010).
In adopting the Graves Act, N.J.S.A. 2C:43-6(c), the
Legislature intended to impose significant mandatory penalties for
certain illegal acts involving weapons.3 State v. Robinson, 217
N.J. 594, 607 (2014). A person convicted of one of the designated
crimes:
3
N.J.S.A. 2C:43-6(c) applies to those defendants convicted of:
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 committing
certain drug-related or bias intimidation offenses, 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); 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). The statute also
applies to defendants who used or were in possession of a firearm
while committing, attempting, or fleeing from other crimes.
5 A-3887-15T4
who, while in the course of committing or
attempting to commit the crime, . . . used or
was in possession of a firearm . . . shall be
sentenced to a term of imprisonment by the
court. The term of imprisonment shall include
the imposition of a minimum term. The minimum
term shall be fixed at one-half of the
sentence imposed by the court or 42 months,
whichever is greater, or 18 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).]
The significant punishment imposed by the Graves Act may be
mitigated, as provided by an amendment, codified as N.J.S.A. 2C:43-
6.2, which:
was enacted to authorize "the reduction of
sentence for a person convicted of a first
offense under the Graves Act if the prosecutor
makes a motion before the assignment judge
stating that the interests of justice would
not be served by the imposition of the
mandatory minimum term under the Graves Act."
Senate Law, Pub. Safety & Def. Comm.,
Statement to S. No. 827 (1988); see also
Assembly Judiciary Comm., Statement to S. No.
827 (1988).
[State v. Nance, 228 N.J. 378, 391 (2017).]
Section 6.2 authorizes a prosecutor to move before the Assignment
Judge for a waiver of the Graves Act's mandatory minimum term of
incarceration for certain first-time offenders. N.J.S.A. 2C:43-
6.2. Section 6.2 empowers the Assignment Judge, or if so
designated with the authority, the presiding judge of the Criminal
6 A-3887-15T4
Part,4 to "place the defendant on probation . . . or reduce to one
year the mandatory minimum term of imprisonment during which the
defendant will be ineligible for parole." Ibid.
Here, the Criminal Presiding Judge, as the delegated designee
of the Assignment Judge, conducted a hearing to review the
prosecutor's denial to seek a Section 6.2 waiver.5 See State v.
Watson, 346 N.J. Super. 521, 535 (App. Div. 2002) (reaffirming a
defendant may seek application by arguing to the Assignment Judge
the prosecutor's refusal is a patent and gross abuse of discretion
(citing State v. Alvarez, 246 N.J. Super. 137, 147 (App. Div.
1991))).
Identifying the purpose of the Graves Act as "deterrence and
only deterrence," State v. Des Marets, 92 N.J. 62, 68 (1983), the
judge noted the "escape valve," set forth in N.J.S.A. 2C:43-6.2,
may be utilized in those instances where imposition of the
4
See Administrative Office of the Courts, Memorandum, Motions
for Waiver of the Graves Act Mandatory Minimum Term and Sentencing
– Clarification Based on State v. Nance (June 12, 2017) (clarifying
Assignment Judge's authority on Graves Act waiver issues).
5
"Pursuant to a 2008 memorandum issued by the Administrative
Office of the Courts, an assignment judge may delegate his or her
authority under section 6.2 to the presiding judge of the Criminal
Part." Nance, supra, 228 N.J. at 392 (citing 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) (authorizing delegation of assignment
judge's authority under court rules to presiding judge)). See
also R. 1:33-6(a).
7 A-3887-15T4
mandatory minimum term required by the Graves Act was deemed
"unnecessarily and unproductively harsh." Cannel, New Jersey
Criminal Code Annotated, cmt. 2 on N.J.S.A. 2:43-6.2 (2017).
The judge identified defendant's lack of a prior criminal
record and his lawful ownership of the weapon used against the
victim, as factors weighing in favor of the waiver. However, when
examining the facts surrounding the crime, the judge concluded the
totality of the facts presented neither "extraordinary or
compelling reasons" to deviate from the Legislative policy
underpinning the Graves Act.
The judge also evaluated the three "extraordinary or
compelling reasons" identified in the Attorney General's Directive
to law enforcement. Attorney General, Directive to Ensure Uniform
Enforcement of the "Graves Act," (Oct. 23, 2008, as corrected Nov.
25, 2008) (the Directive).6 The Directive was issued "to channel
prosecutorial discretion" in cases governed by the Graves Act.
State v. Benjamin, 228 N.J. 358, 372 (2017) (citing State v.
Vasquez, 129 N.J. 189, 196 (1999)).
The Directive was designed to "ensure statewide uniformity
in the enforcement of the Graves Act, and to provide reasonable
incentives for guilty defendants to accept responsibility by
6
The Directive is available at http://www.state.nj.us/
lps/dcj/agguide/pdfs/Graves-Act-Oct23-2008.pdf.
8 A-3887-15T4
pleading guilty in a timely manner so as to maximize deterrence
by ensuring the swift imposition of punishment." Id. at 4.
Additionally, the Directive includes standards guiding the
discretionary determination when seeking a Section 6.2 waiver.
Id. at 12-13.
The judge recited the Directive identified "extraordinary and
compelling reasons that take the case outside the heartland of the
legislative policy to deter unauthorized gun possession" to
warrant recommendation of a probationary sentence. These include:
(1) a defendant's lack of prior criminal involvement; (2) the
firearm was not loaded; and (3) the totality of the circumstances
make clear the firearm posed no risk to police or public safety.
Ibid. Here, although defendant satisfied the first instance, he
could not meet either of the other two.
On appeal, defendant urges the judge erroneously concluded
the prosecutor appropriately declined to seek waiver, arguing: (1)
the decision does not serve the interest of justice; (2) the
standard imposed of "extraordinary and compelling" reasons for a
waiver was incorrect; and (3) the decision incorrectly applied
aggravating and improperly denied applicable mitigating factors.
We consider these assertions.
Because the prosecutor did not agree to seek a Section 6.2
waiver, the burden rests upon defendant, who must show "the
9 A-3887-15T4
prosecutor arbitrarily or unconstitutionally discriminated"
against a defendant when making the determination. State v.
Mastapeter, 290 N.J. Super. 56, 65 (App. Div.), certif. denied,
146 N.J. 569 (1996). The judicial discretion embodied in
examination of a prosecutor's Section 6.2 waiver decision -- that
is, whether a custodial sentence "does not serve the interest of
justice" -- is an objective legal standard based on the facts
presented.
Initially, defendant asserts Section 6.2 provides a
"presumption of probation" for a first-time offender. This claim
is defeated by the unambiguous statutory language and is belied
by the Legislature's 2013 amendment to N.J.S.A. 2C:43-6(c), which
signaled a decision to impose tougher penalties for gun offenses
by increasing the mandatory minimum term from three years to the
current forty-two months. See P.L. 2013, c. 113 § 2, effective
Aug. 8, 2013; see also Nance, supra, 228 N.J. at 396 (rejecting
arguments suggesting Section 6.2 permits lighter sentences for
first-time offenders who act with a gun than for those who do not
use a gun). Accordingly, although Section 6.2 waivers are granted
solely to first-time offenders, not all first-time offenders are
granted Section 6.2 waivers.
We also reject defendant's claim the trial judge imposed a
higher standard of proof for application of waiver than required
10 A-3887-15T4
by the statute's "in the interests of justice" standard. Rather,
we conclude the trial judge correctly analyzed the prosecutor's
waiver decision and it was neither arbitrary nor a product of
unconstitutional discrimination.
The interest of justice standard has a very limited
application and requires a court to consider whether "the sentence
reflect[s] the Legislature's intention" because "the severity of
the crime [is] the most single important factor in the sentencing
process." State v. Megargel, 143 N.J. 484, 500 (1996). A judge
"must consider the nature of and the relevant circumstances
pertaining to the offense[,]" including "facts personal to the
defendant" such as the "defendant's role in the incident, to
determine the need to deter him from further crimes and the
corresponding need to protect the public from him." Id. at 500-
01; see also Directive, supra, at 8.
Defendant pled guilty to, and was convicted of, a second-
degree crime. As directed by the Supreme Court, the first
consideration is the presumption of incarceration, stated in
N.J.S.A. 2C:44-1(d).7 See Nance, supra, 228 N.J. at 395-96. ("We
7
N.J.S.A. 2C:44-1(d) provides:
The court shall deal with a person who has
been convicted of a crime of the first or
second degree . . . by imposing a sentence of
11 A-3887-15T4
construe section 6.2 and N.J.S.A. 2C:44-1(d) so as to harmonize
the two components of the Code's sentencing scheme. Nothing in
either provision suggests that a Graves Act waiver exempts a
defendant convicted of a first or second-degree offense from the
presumption of incarceration."). That said, the Court has also
explained the special circumstances when it is appropriate to
allow a probationary term, even for a crime with a presumption of
incarceration. See State v. Jarbath, 114 N.J. 394, 414-15 (1989).
Section 6.2 limits application of waiver to first-time
offenders where the circumstances of the offense show "the
interests of justice would not be served by the imposition of the
mandatory minimum term under the Graves Act." Nance, supra, 228
N.J. at 391. A review of the Directive relied upon by the
prosecutor and noted by the trial judge, also emphasized the
circumstances of the offense significantly dictates whether waiver
in favor of a probationary sentence should be requested by the
State. Directive, supra, at 12.
Here, figuring most prominently in the consideration not to
seek a Section 6.2 waiver were the circumstances surrounding this
imprisonment unless, having regard to the
character and condition of the defendant, it
is of the opinion that his imprisonment would
be a serious injustice which overrides the
need to deter such conduct by others.
12 A-3887-15T4
offense. Defendant, in anger, retrieved a loaded gun and aimed
it at the victim to threaten and intimidate him to act as defendant
commanded. Even though defendant had not previously committed any
crime, this offense most assuredly was the kind of conduct the
Graves Act sought to deter: the misuse of a licensed firearm by
threatening the life of another, placing the victim, the actor,
and the public in danger. As the trial judge's opinion suggests,
the facts in this case include no basis to support the interest
of justice requires a probationary sentence.
The judge relied on the Directive on this issue. The
Directive instructs prosecutors not to "move for or approve a
sentence of probation except for extraordinary and compelling
reasons that take the case outside the heartland of the legislative
policy to deter gun possession . . . ." Directive, supra, at 12.
Defendant argues "extraordinary and compelling reasons"
equates to the "serious injustice" standard, which erroneously
enhances the statute's lesser standard of "in the interests of
justice." Defendant seeks reversal because the judge mistakenly
accepted this standard, which employed a higher burden.
Importantly, the serious injustice standard is found in
N.J.S.A. 2C:44-1(d), which we noted above presumptively imposes
incarceration for conviction of first- and second-degree offenses.
See State v. Roth, 95 N.J. 334, 358 (1984) (holding the "serious
13 A-3887-15T4
injustice" exception to the presumption of imprisonment applies
only in "truly extraordinary and unanticipated circumstances.").
The Supreme Court has recently reviewed the interrelationship of
N.J.S.A. 2C:44-1(d) and Section 6.2. See Nance, supra, 228 N.J.
at 396. Noting N.J.S.A. 2C:44-1(d) "imposes a high standard that
must be overcome before a first- or second-degree offender may be
sentenced to a non-custodial term[,]" the court clarified the need
to "harmonize" Section 6.2 and N.J.S.A. 2C:44-1(d) as "two
components of the Code's sentencing scheme." Id. at 395. Thus,
"[b]y considering the standard of N.J.S.A. 2C:44-1(d) in deciding
between the probationary and custodial sentences authorized by
[S]ection 6.2, . . . [the court] achieves the legislative
objectives of both provisions." Id. at 396. Further, "a contrary
construction would produce unfair and anomalous results." Ibid.
In this light, without question, Section 6.2's probationary
waiver for a Graves Act offense applies to a very narrow group of
cases. The Attorney General's characterization of such cases as
presenting "extraordinary and compelling reasons" aligns with the
Court's interpretation. When examining imposition of a sentence
for a first- or second-degree crime accompanied by the presumption
of incarceration, the Court has repeatedly advised: "To forestall
imprisonment a defendant must demonstrate something extraordinary
or unusual, something idiosyncratic, in his or her background."
14 A-3887-15T4
State v. Nwobu, 139 N.J. 236, 252 (1995) (quoting State v. Jabbour,
118 N.J. 1, 7 (1990)).
We abide the Court's discernment of the Legislature's intent,
and may not enhance the statutory application as broadly as
suggested by defendant.
The efficacy and perhaps even the wisdom of
this approach may not be clear to some, but
the message intended by the Legislature could
hardly be clearer: if you are convicted of a
crime against a person while using or
possessing a firearm, you will go to prison
for at least three years [now forty-two
months]. Period. The Graves Act aims at
deterrence through the eventually wide spread
knowledge that one who is convicted of using
or possessing a firearm while committing any
one of a number of crimes cannot, and will
not, escape a mandatory minimum imprisonment
. . . .
[Des Marets, supra, 92 N.J. at 73.]
It also is important to note the Legislature vested the
initial decision to seek waiver with the prosecutor. N.J.S.A.
2C:42-6.2 (providing the prosecutor decides whether to seek a
Graves Act waiver and may advocate a particular sentence). As in
other prosecutorial decisions, a reviewing court lacks authority
"to substitute [its own] discretion for that of the prosecutor[.]"
State v. Waters, 439 N.J. Super. 215, 237 (App. Div. 2015) (quoting
Nwobu, supra, 139 N.J. at 253) (discussing prosecutor's decision
to permit pre-trial intervention (PTI) for gun possession
15 A-3887-15T4
offense). "Rather, courts must 'view the prosecutor's decision
through the filter of the highly deferential standard of review.'"
Id. at 237-38 (quoting State v. Wallace, 146 N.J. 576, 589 (1996)).
In Waters, this court evaluated the prosecutor's rejection
of the defendant's request for PTI for a Graves Act offense, also
guided by the Directive, and commented: "We need not decide whether
[the] 2008 Directive's example ever compels a prosecutor to consent
to PTI. It is sufficient to hold here that it does not do so
where the defendant does not meet all the criteria in the example,
or where there are other facts unfavorable to the defendant on
which the prosecutor can properly rely as a basis for denying
PTI." Id. at 237.
Such is the case regarding the matter at hand. Defendant did
not meet the necessary criteria to warrant a waiver for a
probationary sentence. State v. Watkins, 193 N.J. 507, 520 (2008).
The trial judge considered the applicable case law and the guidance
provided in the Directive. On this point, we conclude, as did the
trial judge, the prosecutor's decision was not arbitrary and did
not amount "to unconstitutional discrimination or denial of equal
protection." Watson, supra, 346 N.J. Super. at 535; see also
Mastapeter, supra, 290 N.J. Super. at 65 (holding to succeed on
such a motion a defendant must show the prosecutor arbitrarily or
unconstitutionally discriminated against a defendant in
16 A-3887-15T4
determining whether the "interests of justice" warrant reference
for sentencing under Section 6.2).
We cannot reach the same conclusion regarding the judge's
analysis of whether the prosecutor's denial of the Section 6.2
waiver provision permitting imposition of a one-year period of
parole ineligibility was arbitrary. This review implicates
consideration of applicable aggravating and mitigating factors.
Here, we conclude the judge erred in the aggravating and mitigating
factor analysis. Consequently, we are constrained to remand for
review of the parole ineligibility term.
In making his review of whether the facts support a Section
6.2 waiver of the mandatory parole ineligibility period, the judge
adopted the prosecutor's arguments for application of aggravating
and mitigating factors, N.J.S.A. 2C:44-(1)(a), (b). The judge
agreed the facts supported aggravating factors: one, "[t]he nature
and circumstances of the offense, and the role of the actor
therein, including whether or not it was committed in an especially
heinous, cruel, or depraved manner"; three, the risk that the
defendant will commit another offense; and nine, the need for
deterrence. N.J.S.A. 2C:44-1(a)(1), (3), (9). He also applied
mitigating factor seven, as defendant had previously led a law
abiding life and not committed any prior criminal offense.
N.J.S.A. 2C:44-1(b)(7).
17 A-3887-15T4
The judge apparently rejected defendant's challenges to the
use of aggravating factors one and three, as well as his arguments
for application of mitigating factors four, substantial grounds
which tended to excuse or justify defendant's conduct, though
failing to establish a defense; eight, defendant's conduct was the
result of circumstances unlikely to recur; and nine, the character
and attitude of the defendant indicate that he is unlikely to
commit another offense, N.J.S.A. 2C:44-1(b)(4), (8), (9).8
Finally, the judge concluded the applied aggravating factors
substantially outweighed the mitigating factors. Therefore, he
determined the State's rejection of the request to reduce the
period of parole ineligibility to one year was justified, and
suggested this matter was exactly the type of conduct the Graves
Act intended to deter — a person who arms himself or herself with
a loaded weapon before committing a crime. See Des Marets, supra,
92 N.J. at 68-69.
Although "aggravating and mitigating factors play no part in
the decision to impose a minimum term in Graves Act cases[,]" a
court may consider the aggravating and mitigating factors in
setting the length of the minimum term. State v. Towey, 114 N.J.
69, 82 (1989); see also Nance, supra, 228 N.J. at 390-91 ("Although
8
At the hearing, the parties relied principally upon their
written submissions, which were not included in the record.
18 A-3887-15T4
the mandatory minimums are prescribed by the Graves Act, the
sentencing court weighs the aggravating and mitigating factors,
N.J.S.A. 2C:44-1(a) and (b), and exercises discretion over other
aspects of the sentence.").
The Directive instructs prosecutors that a reduction of the
minimum term of parole ineligibility to one year should not be
recommended when "the aggravating factors applicable to the
offense[,] conduct[,] and offender outweigh any applicable
mitigating circumstances[.]" Directive, supra, at 13. Therefore,
appropriate application of these factors is significant when
deciding to request waiver.
Following our review of the record, we agree with defendant:
the judge inappropriately applied aggravating factor one and must
consider whether mitigating factors, particularly factor nine,
apply in order to determine whether the prosecutor appropriately
declined to seek waiver.
The Legislature "chose comprehensive language to define
aggravating factor one." State v. Lawless, 214 N.J. 594, 609
(2013).
Under this factor, the sentencing court
reviews the severity of the defendant's crime,
"the single most important factor in the
sentencing process," assessing the degree to
which defendant's conduct has threatened the
safety of its direct victims and the public.
"The paramount reason we focus on the severity
19 A-3887-15T4
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."
In that inquiry — focused on the magnitude of
the offense as a measure of the need to shield
the public and deter future crimes — courts
applying aggravating factor one focus on the
gravity of the defendant's conduct,
considering both its impact on its immediate
victim and the overall circumstances
surrounding the criminal event.
[Id. at 609-10 (citations omitted).]
In this matter, the only explanation recited to apply this
was because defendant pointed "a loaded handgun at his longtime
friend." However, the use of the weapon is an element of the
offense for which he was convicted. Therefore, identifying the
same fact as an aggravating factor engages in impermissible double
counting. See State v. Kromphold, 162 N.J. 345, 353-54 (2000)
(holding finding of an aggravating sentencing factor cannot be
premised solely upon an essential element of the crime for which
defendant is being sentenced; such "double-counting" is not
permitted).
Defendant also attacks application of aggravating factor
three, the risk of re-offense, particularly because defendant had
led a law-abiding life, as supported by application of mitigating
factors seven. He argues he achieved sobriety, emphasizing his
20 A-3887-15T4
alcohol abuse impaired his judgment and led to his commission of
the offense. In applying aggravating factor three, the judge
found defendant's alcohol abuse and the circumstances of this
offense, suggested a risk defendant would reoffend, but he gave
this factor less weight. The judge did not mention defendant's
treatment.
We reject the notion aggravating factor three cannot coexist
with mitigating factor seven. This is not correct. See State v.
Case, 220 N.J. 49, 67 (2014) ("[W]e do not presume that aggravating
factor three cannot coexist with mitigating factor seven
. . . ."); State v. Varona, 242 N.J. Super. 474, 491 (App. Div.),
certif. denied, 122 N.J. 386 (1990). The question for review is
whether the cited factual findings are grounded in competent,
credible evidence in the record. Roth, supra, 95 N.J. at 363.
Here, even though defendant had not previously broken the
law, the judge explained, defendant's alcohol abuse was not an
isolated or aberrant event. Also, defendant's uncontrolled anger
directly led to the criminal conduct. We conclude these facts
evinced by the record, sufficiently support the finding to apply
aggravating factor three, which the judge accorded little weight.
We reject as meritless defendant's challenge to the
application of aggravating factor nine, the need for general and
specific deterrence. R. 2:11-3(e)(2).
21 A-3887-15T4
Next, defendant states the judge erroneously rejected
requested applicable mitigating factors. Mitigating factors that
are called to the court's attention should not be ignored, see
Blackmon, supra, 202 N.J. at 297, "and when 'amply based in the
record . . . , they must be found[.]'" Case, supra, 220 N.J. at
64 (quoting State v. Dalziel, 182 N.J. 494, 504 (2005)). Moreover,
during the deliberative process, a judge, must state the basis for
rejecting a claimed mitigating factor. Ibid.
Assuming defendant's written submissions sought application
of mitigating factors four, eight, and nine, the judge failed to
mention why he determined them inapplicable. Although we could
infer a basis to reject mitigating factor four and eight from the
facts and the judge's findings, we choose not to do so. We also
cannot infer what evidential support was used to reject evidence
directed to application of mitigating factor nine, including
defendant's completion of alcohol abuse treatment and counseling,
his age, and years of continuous employment. Since we conclude
remand is necessary because of the error in applying aggravating
factor one, we also require the judge to provide the factual review
of mitigating factors advanced by defendant.
Because of the need to reevaluate the applicable aggravating
and mitigating factors, we remand for additional review of whether
a Section 6.2 mitigation of the period of parole ineligibility is
22 A-3887-15T4
appropriate. The judge must review the propriety of the
prosecutor's denial of the request to seek imposition of the
minimum Graves Act parole ineligibility period, once eliminating
aggravating factor one and after evaluating and weighing whether
evidence supports application of the requested mitigating factors.
Affirmed in part and remanded in part.
23 A-3887-15T4