STATE OF NEW JERSEY VS. ROBERT F. BILLARD (15-03-0361, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0198-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT F. BILLARD,
Defendant-Appellant.
______________________________
Argued January 10, 2019 – Decided July 26, 2019
Before Judges O'Connor and Whipple.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 15-03-
0361.
Steven D. Altman argued the cause for appellant
(Benedict & Altman, attorneys; Steven D. Altman and
Joshua David Altman, on the brief).
Patrick F. Galdieri, II, Assistant Prosecutor, argued the
cause for respondent (Andrew C. Carey, Middlesex
County Prosecutor, attorney; Patrick F. Galdieri, II, of
counsel and on the brief).
PER CURIAM
A jury convicted defendant Robert F. Billard of second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b). He was sentenced to a five-year
term of imprisonment with a forty-two month period of parole ineligibility. He
now appeals from his sentence. We affirm.
Defendant did not provide a copy of the trial transcript, but it is not
disputed the following evidence was adduced during the trial. In October 2014,
defendant was pulled over while driving in Middlesex because a police officer
of the Middlesex Police Department observed him talking on a cell phone. The
officer ran a Motor Vehicle Commission check on the vehicle defendant was
driving and discovered the plates were registered to a different vehicle. After
issuing motor vehicle summonses to him, the officer advised defendant the
vehicle he had been driving was going to be impounded.
Defendant called his mother, who agreed to pick him up and take him
home. Because his mother was going to be accompanied by his two young
nieces and defendant did not want the girls to see him with the police, one of the
officers offered to give defendant a ride to the corner of the street. Before
getting into the patrol car, the officer advised defendant he would have to be
patted down. Defendant agreed and told the officer he did not have any weapons
on him.
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Upon patting him down, the officer found a .45 caliber semi-automatic
pistol in defendant's waistband. The officer took possession of the gun and
placed defendant under arrest. The gun was loaded with a live round of
ammunition in its chamber and a magazine containing seven additional rounds.
Although defendant had a valid firearms-purchaser identification card and a
permit to purchase a handgun, he did not have a permit to carry one.
A Middlesex County grand jury indicted defendant on one count of
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). As
stated, defendant was convicted of this charge and sentenced to a five-year term
of imprisonment with a forty-two month period of parole ineligibility.
N.J.S.A. 2C:43-6(c) requires a mandatory term of imprisonment for
individuals convicted of various firearm-related crimes, including unlawful
possession of a weapon. In pertinent part, N.J.S.A. 2C:43-6(c) states that "[t]he
term of imprisonment shall include the imposition of a minimum term" which
"shall be fixed at one-half of the sentence imposed by the court or [forty-two]
months, whichever is greater . . . ." Ibid. However, there is an "escape valve"
to the mandatory sentence requirements. State v. Alvarez, 246 N.J. Super. 137,
139 (App. Div. 1991). This "escape valve" provides that:
On a motion by the prosecutor made to the assignment
judge that the imposition of a mandatory minimum
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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 paragraph (2)
of subsection b. of N.J.S.[A.] 2C:43-2 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 (emphasis added).]
Thus, "[t]he relief that section 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." State v. Benjamin,
228 N.J. 358, 368-69 (2017) (citing N.J.S.A. 2C:43-6.2).
If the prosecutor decides not to approve the use of the "escape valve," a
defendant may move "'before the assignment judge or designated judge . . . for
a . . . hearing as to whether the prosecutor's rejection or refusal is grossly
arbitrary or capricious or a patent abuse of discretion.'" Alvarez, 246 N.J. Super.
at 147 (quoting State v. Cengiz, 241 N.J. Super. 482, 497-98 (App. Div. 1990)).
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A defendant "must make a showing of arbitrariness constituting an
unconstitutional discrimination or denial of equal protection constituting a
'manifest injustice,'" and the assignment judge must determine if a hearing is
warranted "in the interests of justice." Id. at 148-49.
Here, defendant had not been previously convicted of a firearm- related
offense. Just before sentencing, defendant requested but the prosecutor declined
to waive the requirement that he serve the mandatory minimum term of
imprisonment under N.J.S.A. 2C:43-6(c). Defendant then filed a motion before
the sentencing judge requesting he refer the matter to the assignment judge, so
that such judge could determine if the prosecutor's refusal to waive the
mandatory minimum term of imprisonment was grossly arbitrary or capricious
or a patent abuse of discretion.
The sentencing judge denied defendant's motion because, among other
reasons, the prosecutor did not consent to him referring the matter to the
assignment judge, as required by N.J.S.A. 2C:43-6.2, and the assignment judge
had not made the sentencing judge his designee. For reasons not revealed in the
record, defendant did not move before the assignment judge to obtain relief from
the prosecutor's refusal to waive the mandatory minimum term.
On appeal, defendant argues the following:
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POINT I: THE DENIAL OF A POST-TRIAL
GRAVES ACT WAIVER CONSTITUTED AN
ARBITRARY DECISION AND THE FAILURE TO
CONDUCT AN ALVAREZ HEARING REQUIRES A
REVERSAL OF THE SENTENCE.
A. THE STATE'S REJECTION OF THE
POST-TRIAL GRAVES ACT WAIVER WAS
IMPERMISSIBILY ARBITRARY AND THE
REJECTION WAS BASED UPON
DEFENDANT'S EXERCISE OF HIS
CONSTITUTIONAL RIGHT TO PROCEED
TO TRIAL.
B. ROBERT BILLARD HAS ESTABLISHED
THAT THE DENIAL OF THE WAIVER –
POST-TRIAL – IS ARBITRARY AND IS
ENTITLED TO A HEARING BEFORE THE
ASSIGNMENT JUDGE.
POINT II: ROBERT BILLARD WAS DENIED DUE
PROCESS AND FUNDAMENTAL FAIRNESS
BECAUSE HE WAS FORCED TO STAND TRIAL
DESPITE ACCEPTING A PLEA OFFER BUT
REASONABLY SEEKING ADDITIONAL TIME TO
COMPLY WITH ITS TERMS. (Not Raised Below).
We reject defendant's contentions. He sought relief from the prosecutor's
decision to not waive the mandatory minimum term but, instead of filing a
motion before the assignment judge, defendant filed one before the sentencing
judge, who was without authority to grant the relief defendant sought. See
N.J.S.A. 2C:43-6.2.
Affirmed.
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