STATE OF NEW JERSEY VS. KYLE M. GRESAK (20-01-0013, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0483-20
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KYLE M. GRESAK,
Defendant-Respondent.
_________________________
Submitted October 6, 2021 – Decided November 8, 2021
Before Judges Hoffman, Whipple, and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Accusation No. 20-01-
0013.
Esther Suarez, Hudson County Prosecutor, attorney
for appellant (Erin M. Campbell, Assistant Prosecutor,
on the brief).
McCarter and English, LLP, attorneys for defendant
(Geoffrey N. Rosamond, of counsel and on the brief;
Brian W. Carroll, on the brief).
PER CURIAM
The State appeals the sentence imposed on defendant's guilty plea
conviction for unlawful possession of an assault firearm, N.J.S.A. 2C:39 -5(f).
The trial court sentenced defendant to a three-year term of probation and
ordered defendant to serve 364 days in county jail as a condition of probation.
The assault firearm offense to which defendant pled guilty falls under the
mandatory sentencing provisions of the Graves Act, 1 N.J.S.A. 2C:43-6(c); the
offense also is graded as a second-degree crime, thus invoking the presumption
of imprisonment codified in N.J.S.A. 2C:44-1(d). That statutory presumption
calls for a state prison sentence, not a county jail sentence as a condition of
probation; the presumption can be overcome only when a state prison sentence
would be a serious injustice that overrides the need to deter others.
In this instance, defendant brought an assault rifle to New Jersey from
West Virginia, intending to exchange it for illicit drugs. The trial court's
decision to spare defendant from a state prison sentence relies principally on
sentencing factors pertaining to the offender, including defendant's lack of
criminal history and willingness to address his drug dependence. The trial
1
The Graves Act is named for Senator Francis X. Graves, Jr., who sponsored
legislation in the 1980s mandating imprisonment and parole ineligibility terms
for persons who committed certain offenses while armed with a firearm. The
term now refers to all gun crimes that carry a mandatory minimum term of
imprisonment. See infra note 3.
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court did not focus on the offense conduct and did not account for the
compelling need to deter others from bringing out-of-state firearms into New
Jersey to supply local drug dealers with assault weapons. After carefully
reviewing the record in light of well-settled principles of law, we conclude that
the trial court did not properly apply the standard for overcoming the strict
presumption of imprisonment. Although we recognize why the trial court felt
sympathy toward defendant, who has no prior convictions and is working
earnestly to overcome his addiction, we are constrained to vacate the
probationary sentence and remand for the trial court to impose a state prison
sentence with a one-year period of parole ineligibility.
I.
We briefly summarize the pertinent facts and procedural history. In July
2019, a confidential informant notified the Hudson County Prosecutor's Office
that defendant planned to exchange an assault rifle for a controlled dangerous
substance—tetrahydrocannabinol (THC) Vapor Cartridges—in Weehawken,
New Jersey. The informant claimed that defendant, a resident of West
Virginia, made "semi-frequent trips" to New Jersey to purchase narcotics. On
August 1, 2019, the informant notified law enforcement that defendant was en
route to New Jersey and would be arriving between 11:00 p.m. and 1:00 a.m.
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3
Based on that information, police identified and intercepted defendant's truck.
Defendant consented to a search of the vehicle2 and advised the police that an
unloaded firearm was on the backseat. Police recovered an AR-15 assault
rifle, a 32-round magazine, and ammunition. Defendant was charged with
possession of an assault firearm, N.J.S.A. 2C:39-5(f), and possession of a large
capacity magazine, N.J.S.A. 2C:39-3(j).
On January 10, 2020, defendant pled guilty to unlawful possession of an
assault firearm in accordance with a negotiated agreement. The State agreed to
dismiss the remaining charge and to move pursuant to N.J.S.A. 2C:43-6.2 for a
partial waiver of the Graves Act mandatory forty-two-month term of parole
ineligibility. The State agreed to recommend a five-year state prison term with
a one-year period of parole ineligibility—commonly referred to as a
"standardized" Graves Act plea offer. Defendant reserved the right to seek a
full waiver of the mandatory minimum term of imprisonment.
At the sentencing hearing, defendant asked the court to impose non-
custodial probation. The trial court declined to extend leniency to that degree,
placing defendant on probation but ordering him to serve 364 days in the
Hudson County jail as a condition of probation. The court rendered a lengthy
2
The lawfulness of the stop, arrest, and consent search are not challenged in
this appeal.
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written opinion, finding mitigating factors two, N.J.S.A. 2C:44-1(b)(2) ("[t]he
defendant did not contemplate that the defendant's conduct would cause or
threaten serious harm"); 3 seven, N.J.S.A. 2C:44-1(b)(7) ("[t]he 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, N.J.S.A. 2C:44-1(b)(8) ("[t]he defendant's conduct was the
result of circumstances unlikely to recur"); nine, N.J.S.A. 2C:44-1(b)(9)
("[t]he character and attitude of the defendant indicate that the defendant is
unlikely to commit another offense"); ten, N.J.S.A. 2C:44-1(b)(10) ("[t]he
defendant is particularly likely to respond affirmatively to probationary
treatment"); and twelve, N.J.S.A. 2C:44-1(b)(12) ("[t]he willingness of the
defendant to cooperate with law enforcement authorities"). The court found
only one aggravating factor, nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need for
deterring the defendant and others from violating the law"). The court
concluded that the mitigating factors substantially outweighed the aggravating
factor.
3
Although we accord substantial deference to a trial court's finding of an
aggravating or mitigating factor, we believe defendant's argument that he did
not contemplate that trading an assault firearm to a drug dealer would cause or
threaten serious harm is, at best, implausible, and at worst, disingenuous.
A-0483-20
5
The court next determined that defendant's circumstances warranted a
reduced sentence in the "interest of justice," relying in part on an Attorney
General memorandum to county prosecutors. The Attorney General
memorandum addresses cases involving out-of-state visitors who are arrested
while in possession of firearms that were lawfully acquired and possessed in
their home state. The trial court reasoned:
Defendant "regrets his poor decision and accepts
responsibility for his mistake." Defendant
"understands the serious nature of the charges, which
were motivated, in part, by [his] drug and alcohol
dependency and desire to obtain controlled substances
. . . ." The gun was found unloaded in the backseat of
[d]efendant's [car], but he was not a "mastermind" or a
"loyal follower" in furtherance of a crime as intended
by our laws.
[Pa 30.]
The trial court ultimately determined that these circumstances overcame
the presumption of imprisonment. "Indeed," the trial court explained, "to not
afford this out-of-state [d]efendant, who is taking active steps to address his
drug dependency issues which [led] to this offense, the opportunity to continue
to lead a productive and law-abiding life would constitute a serious injustice."
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II.
This appeal focuses on the need to deter persons from supplying out -of-
state firearms to local drug traffickers, who may use those weapons in
furtherance of their own criminal activity or else sell them unlawfully to others
who may then use them to commit violent crimes. The unlawful importation
of firearms is a matter of great public concern. Too often, a shooting tragedy
is traced to a particular weapon that was brought into this state by unlawful
means. We therefore lay the foundation for our review of defendant's
probationary sentence by recounting the evolution and incremental
strengthening of our criminal gun laws, which are designed to deter such
conduct and are among the toughest in the nation. See Peter G. Verniero et al.,
The New Jersey SAFE Task Force on Gun Protection, Addiction, Mental
Health and Families, and Education Safety 3 (April 10, 2013) ("New Jersey
already has in place an extensive set of gun laws and regulations. Indeed, New
Jersey's system for regulating firearms is widely considered to be among the
most comprehensive and stringent in the nation.").
The Graves Act has long been a central feature of New Jersey's gun
laws. "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
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those who arm themselves before going forth to commit crimes.'" State v.
Nance, 228 N.J. 378, 390 (2017) (quoting State v. Des Marets, 92 N.J. 62, 68
(1983)). "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.
Benjamin, 228 N.J. 358, 367 (2017) (quoting Des Marets, 92 N.J. at 71).
From the start, the Supreme Court took steps to ensure strict adherence
to the mandatory minimum sentencing framework adopted by the Legislature.
On April 27, 1981, Chief Justice Wilentz issued a memorandum "to ensure that
mandatory prison terms pursuant to N.J.S.A. 2C:43-6(c), the Graves Act, were
imposed in accordance with the Legislature's intent." Administrative Directive
#09-18, "Guidelines for Downgrading/Dismissals Under the Graves Act: Strict
Enforcement of Mandatory Minimum Custodial Terms for Offenses Involving
Firearms" (July 2, 2018) (describing Administrative Directive #10-80,
"Sentencing Guidelines for Dismissals Under the Graves Act" (April 27,
1981)) (AOC Directive #09-18). That memorandum remains in effect to this
day.
In 1989, the Legislature enacted N.J.S.A. 2C:43-6.2 "[t]o mitigate the
undue severity that might accompany the otherwise automatic application of
A-0483-20
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the mandatory minimum sentence under the Graves Act." Benjamin, 228 N.J.
at 368. This statute authorizes "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." Ibid. Specifically, N.J.S.A.
2C:43-6.2 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.
The relief afforded by N.J.S.A. 2C:43-6.2 arises in two ways. The
prosecutor can make a motion to the assignment judge for a waiver of the
mandatory minimum penalty. Alternatively, the sentencing judge may refer
the matter to the assignment judge if the prosecutor approves the referral. In
either procedure, the prosecutor must approve the waiver before the
A-0483-20
9
assignment judge is authorized to impose one of the two reduced penalties.
Benjamin, 228 N.J. at 368–69.
In 2007, the Legislature amended N.J.S.A. 2C:43-6(c), greatly
expanding the reach of the Graves Act. See L. 2007, c. 341 (codified at
N.J.S.A. 2C:43-6). Before this expansion, the Graves Act applied only when a
person was convicted of possessing or using a firearm while in the course of
committing certain predicate crimes or possessing a firearm for an unlawful
purpose in violation of N.J.S.A. 2C:39-4(a). The expanded statute 4 imposes a
Graves Act mandatory minimum sentence for anyone convicted of unlawful
possession of a firearm, regardless of whether the defendant was concurrently
4
The Graves Act now applies to a defendant who has been convicted of one
of the following offenses: 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 in the course of
committing a drug distribution/possession with intent to distribute crime or
bias crime, 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); and
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). N.J.S.A. 2C:43-6(c).
The Graves Act also applies to a defendant who "used or was in possession of
a firearm" while in the course of committing, attempting to commit, or fleeing
from the following crimes: murder, N.J.S.A. 2C:11-3; manslaughter, N.J.S.A.
2C:11-4; aggravated assault, N.J.S.A. 2C:12-1(b); kidnapping, N.J.S.A. 2C:13-
1; aggravated sexual assault, N.J.S.A. 2C:14-2(a); aggravated criminal sexual
contact, N.J.S.A. 2C:14-3(a); robbery, N.J.S.A. 2C:15-1; burglary, N.J.S.A.
2C:18-2; and escape, N.J.S.A. 2C:29-5. N.J.S.A. 2C:43-6(c).
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committing another crime or had a purpose to use the firearm unlawfully.
Importantly for purposes of this appeal, the "simple" unlawful possession
offense in N.J.S.A. 2C:39-5 was not only added to the Graves Act list, but also
was upgraded from a third-degree crime to a second-degree crime. Prior to
this revision, most persons charged with simple possession of a firearm —the
most commonly charged gun offense—were entitled upon conviction to a
presumption of non-incarceration, i.e., probation, pursuant to N.J.S.A. 2C:44-
1(e). Under the revised statute, those persons are now subject to both the
mandatory minimum sentencing provisions of the Graves Act and the
presumption of imprisonment that applies to second-degree convictions
pursuant to N.J.S.A. 2C:44-1(d). In addition to expanding the scope of the
Graves Act by significantly increasing the number of gun offenders subject to
a mandatory minimum sentence, the 2007 amendment increased the mandatory
minimum term of parole ineligibility from three years to forty-two months. L.
2007, c. 341, § 5.
The significant expansion of the Graves Act prompted the Attorney
General to issue a statewide directive to police and prosecutors in October
2008. Attorney General, Attorney General Directive to Ensure Uniform
Enforcement of the "Graves Act" (Oct. 23, 2008, as corrected Nov. 25, 2008)
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(2008 Attorney General Directive). The 2008 Attorney General Directive was
issued "[t]o ensure statewide uniformity in the enforcement of the Graves Act,
and to provide reasonable incentives for guilty defendants to accept
responsibility by pleading guilty in a timely manner so as to maximize
deterrence by ensuring the swift imposition of punishment." 2008 Attorney
General Directive at 4. Recognizing the trial court system might be
overwhelmed unless the significantly expanded number of Graves Act
offenders were provided an incentive to waive their right to a jury trial by
pleading guilty, the 2008 Attorney General Directive instructs prosecutors to
tender a "standardized" plea offer that invokes N.J.S.A. 2C:43-6.2 to reduce
the term of parole ineligibility to one year. Id. at 13. That standardized offer
must be tendered "unless the prosecuting agency determines that the
aggravating factors applicable to the offense conduct and offender outweigh
any applicable mitigating circumstances," or "unless the prosecuting agency
determines that a sentence reduction to a one-year term of parole ineligibility
would undermine the investigation or prosecution of another." Ibid.
The 2008 Attorney General Directive also instructs prosecutors on when
and in what circumstances they may tender plea offers that contemplate a
probationary term. Specifically,
A-0483-20
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[a] prosecuting agency shall not 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
unauthorized gun possession…so that imposition of a
state prison term would constitute a serious injustice
that overrides the need to deter others from unlawfully
possessing a firearm.
[Id. at 12–13.]
This formulation draws closely from the presumption of imprisonment set
forth in N.J.S.A. 2C:44-1(d), which we discuss in section III of this opinion.
The 2008 Attorney General Directive further provides that if
a court waives or reduces a mandatory minimum term
without the prosecutor's approval, or if the prosecuting
agency applies for or approves a reduction to a one-
year term of parole ineligibility and the court imposes
a probationary term, the prosecuting agency shall
immediately notify the Director of the Division of
Criminal Justice, shall seek a stay of the sentence, and
shall appeal the sentence.
[Id. at 15.]
In response to public attention on how prosecutors exercise discretion in
situations involving out-of-state visitors who possess lawfully acquired
firearms in New Jersey, the Attorney General issued a clarification to the 2008
Attorney General Directive in 2014. Attorney General, Clarification of the
"Graves Act" 2008 Directive with Respect to Offenses Committed by Out-of-
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State Visitors From States Where Their Gun-Possession Conduct Would Have
Been Lawful 1 (Sep. 24, 2014) (2014 Attorney General Clarification or
Attorney General memorandum). The 2014 Attorney General Clarification
notes that in most cases involving out-of-state visitors who would be in lawful
possession of the firearm in their home jurisdiction, "imprisonment is neither
necessary nor appropriate to serve the interests of justice and protect the public
safety." Ibid. Rather, in cases where the prosecutor does not find pretrial
intervention (PTI) appropriate, the 2014 Attorney General Clarification
"establishes a rebuttable presumption that the prosecutor will tender an initial
plea offer that authorizes the court upon conviction to impose a non -custodial
probationary sentence." Ibid.
Not all out-of-state defendants, however, fall within the scope of the
2014 Attorney General Clarification. The Attorney General memorandum is
meant to address those situations where the out-of-state visitor "inadvertently"
violates New Jersey law. Ibid. Furthermore, the 2014 Attorney General
Clarification applies only to individuals who (1) lawfully acquired the firearm
in another jurisdiction, (2) live in a jurisdiction where the firearm would be
lawful, and (3) believed that possession of said firearm was legal in New
Jersey. Id. at 4. We add that while the 2014 Attorney General Clarification
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may be instructive for resolving issues involving out-of-state visitors who
possess a firearm while in New Jersey, it "is simply a statement of the current
policy of the Attorney General." State v. Waters, 439 N.J. Super 215, 238–39
(App. Div. 2015) (noting that the "validity of a trial court's order regarding PTI
must be determined based on applicable law, not subsequent changes in
prosecutorial policy"). The 2014 Attorney General Clarification does not alter
the legal standard for overcoming the presumption of imprisonment
established in N.J.S.A. 2C:44-1(d).
III.
The Graves Act does not operate in isolation from other sentencing
provisions of the New Jersey Code of Criminal Justice (the Code), N.J.S.A.
2C:1-1 to 104-9. That leads us to discuss the basic sentencing principles that
govern this appeal, including the scope of our review. A trial court's
sentencing determination is entitled to deference. State v. Fuentes, 217 N.J.
57, 70 (2014). "A reviewing court may not substitute its own judgement for
that of the sentencing court. Judges who exercise discretion and comply with
the principles of sentencing remain free from the fear of 'second guessing.'"
State v. Megargel, 143 N.J. 484, 493–94 (1996); see also State v. Jarbath, 114
A-0483-20
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N.J. 394, 401 (1989) (holding "[t]he critical focus" is whether the sentencing
court was "clearly mistaken"). Accordingly,
The appellate court must affirm the sentence unless
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original)
(quoting State v. Roth, 95 N.J. 334, 364–65 (1984)).]
The critical question raised in this appeal is whether the trial court
violated sentencing guidelines, and specifically, whether the trial court
correctly applied the presumption of imprisonment codified in N.J.S.A. 2C:44 -
1(d). That sentencing feature 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 imprisonment unless,
having regard to the character and condition of the
defendant, it is of the opinion that the defendant's
imprisonment would be a serious injustice which
overrides the need to deter such conduct by others.
As we have noted, the Graves Act offense for which defendant was
convicted, unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f), is
graded as a second-degree crime. Accordingly, that conviction is subject to
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the presumption of imprisonment. Moreover, the New Jersey Supreme Court
recently confirmed that the presumption of imprisonment applies in situations
where a prosecutor moves for a Graves Act waiver pursuant to N.J.S.A. 2C:43-
6.2. State v. Nance, 228 N.J. 378, 395–96 (2017). The Court in Nance held
that nothing in N.J.S.A. 2C:43-6.2 or N.J.S.A. 2C:44-1(d) "suggests that a
Graves Act waiver exempts a defendant convicted of first[-] or second-degree
offense from the presumption of incarceration." Id. at 396.
The law also is well-settled that the presumption of imprisonment is not
satisfied by a term of incarceration imposed as a condition of probation, which
is sometimes referred to as a "split sentence." In State v. O'Connor, our
Supreme Court explained that a split sentence is a "form of punishment
qualitatively as well as quantitatively different from a term of imprisonment ."
105 N.J. 399, 409 (1987). The Court concluded, "[w]e therefore hold that a
split sentence is invalid where the defendant has committed a second-degree
offense, except in cases where the presumption of imprisonment has been
overcome." Id. at 410. Accordingly, a defendant convicted of a second-degree
gun crime who is granted a Graves Act waiver pursuant to N.J.S.A. 2C:43-6.2
may not be sentenced to probation under that provision unless the court finds
A-0483-20
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that a sentence to state prison would constitute a serious injustice that
overrides the need to deter others.
Reviewing courts have rarely found justification to overcome the
presumption of imprisonment. See Jarbath, 114 N.J. at 407. In determining
whether the presumption has been overcome, the focus is not on the offender
but rather on the "gravity of the offense, which implicates the need for specific
and general deterrence." State v. Evers, 175 N.J. 355, 392 (2003). In Evers,
the Court noted that in the context of first- and second-degree crimes, there is
an "overwhelming presumption that deterrence will be of value." Id. at 395.
Furthermore, our Supreme Court has stressed repeatedly that the
presumption of imprisonment can only be overcome "in truly extraordinary
and unanticipated circumstances." State v. Jabbour, 118 N.J. 1, 7 (1990)
(quoting State v. Roth, 95 N.J. 334, 358 (1984)); see also State v. Nwobu, 139
N.J. 236, 252 (1995) (quoting Jabbour, 118 N.J. at 7) ("To forestall
imprisonment a defendant must demonstrate something extraordinary or
unusual, something 'idiosyncratic,' in his or her background.").
The law is well-settled that a defendant does not overcome the
presumption of imprisonment simply because he or she has led "a crime-free
or blameless life" or happens to be a "first-time offender." Evers, 175 N.J. at
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388, 400. Nor is the presumption overcome by drug or alcohol dependency
that triggers criminal behavior. See Roth, 95 N.J. at 368–69 (noting that "[i]t
is unfortunate, but not exceptional, that [the defendant's] youthful dependence
on drugs and alcohol triggered his criminal behavior. Many crimes arise out of
drug and alcohol use. [The defendant's] situation, while regrettable, is not
rare."); see also Jarbath, 114 N.J. at 407 (noting "[i]t is, nevertheless, clear
under the Code that rehabilitation is not the goal to be achieved by a
consideration of the character and condition of the offender [for purposes of
applying the serious injustice standard under N.J.S.A. 2C:44-1(d)]") (citing
Roth, 95 N.J. at 367).
The high bar set for overcoming the presumption of imprisonment is
shown in State v. Corso, 355 N.J. Super. 518 (App. Div. 2002). Because the
error committed by the sentencing court in that case is in many respects similar
to the error committed in the case before us, we deem it appropriate to quote
extensively from our opinion in Corso. There, we explained:
The standard for finding a serious injustice, is
extremely narrow and should only be applied when the
circumstances are truly extraordinary and
unanticipated. Such circumstances are rarely found."
Absent a proper determination that there would be
such a serious injustice to the defendant, considering
his character and condition, that it overrides the need
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to deter such conduct by others, the trial court must
impose a custodial sentence.
Here, the judge found the existence of only
aggravating factor nine, the need to deter, N.J.S.A.
2C:44-1a(9). The judge found mitigating factors seven
(no prior criminal record), eight (circumstances
unlikely to recur), nine (unlikely to commit another
offense), ten (will respond well to probation), and
eleven (hardship), N.J.S.A. 2C:44-1b(7)-(11). The
judge concluded that the mitigating factors
substantially and overwhelmingly outweigh the
aggravating factor, and that the interests of justice
would best be served if defendant were not given a
sentence of incarceration, implicitly finding that the
interests of justice outweighed the need for deterrence.
We need not disagree with the judge's findings of
aggravating or mitigating factors or with his weighing
of them, to conclude that the sentence cannot stand.
The judge was undoubtedly sympathetic to defendant
perhaps recognizing, although not explicitly stating,
the peculiar hardships that might face a police officer
within the prison system. Nevertheless, the
requirements to overcome the statutory presumption
are demanding and quite extraordinary. The
presumption is not overcome simply because the
mitigating factors greatly outweigh the aggravating.
Nor is the presumption overcome by the fact that
defendant is a first-time offender, or by the fact that
defendant has good prospects for rehabilitation. Nor
is it enough that a defendant would find incarceration
difficult [because] . . . [d]efendants who commit
serious crimes should expect to spend time in prison.
The few cases that have found extraordinary
circumstances justifying overcoming the presumption
of imprisonment are indeed idiosyncratic and readily
distinguishable from the present case.
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In the end, we can only note that, regrettably,
defendant brought the harsh weight of the law, which
he was sworn to uphold, down upon himself. His
tragedy rests only on his own shoulders.
[Id. at 528–29 (internal quotations and citations
omitted).]
Nothing in the record before us suggests that defendant's situation is
extraordinary or even unusual. Like far too many individuals, defendant was
driven by addiction to resort to criminal activity to support his drug habit.
Furthermore, in deciding to afford leniency beyond that contemplated in
the plea agreement, as in Corso, the sentencing court appears to have conflated
the standard for overcoming the presumption of imprisonment with the distinct
standard for downgrading a sentence under N.J.S.A. 2C:44-1(f)(2). That
provision of the Code authorizes a court to extend leniency by sentencing a
"defendant to a term [of imprisonment] appropriate to a crime of one degree
lower than that of the crime for which the defendant was [actually] convicted."
The downgrade feature of N.J.S.A. 2C:44-1(f)(2) may be invoked when "the
court is clearly convinced that the mitigating factors substantially outweig h the
aggravating factors and where the interest of justice demands." 5
5
We note that the five-year term imposed on defendant's second-degree
conviction is at the bottom of the second-degree range of authorized sentences,
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In Evers, the Court made clear that "[t]he standard for overcoming the
presumption of imprisonment is distinct from that for downgrading an offense
[pursuant to N.J.S.A. 2C:44-1(f)(2)]. Moreover, the reasons offered to dispel
the presumption of imprisonment must be even more compelling than those
that might warrant downgrading an offense." 175 N.J. at 389 (citing State v.
Megargel, 143 N.J. 484, 498–502 (1996)); see also Corso, 355 N.J. at 529
(finding that justification for a reduced sentence did not overcome the
presumption of imprisonment).
In this instance, although the trial court found aggravating factor nine
applicable, N.J.S.A. 2C:44-1(a)(d) ("the need for deterring defendant and
others from violating the law"), it did not adequately focus on the need to deter
others from engaging in the same criminal conduct defendant committed. It
bears repeating that defendant imported an operable assault firearm into this
state with the intention to provide it to a person he knew was engaged in
criminal drug distribution. Defendant, in other words, introduced an assault
firearm to this state intending to place it in the stream of illicit gun commerce,
making him, in practical effect, a one-time gun runner. Given the alarming
prevalence of gun violence associated with the illicit drug trade, the act of
N.J.S.A. 2C:43-6(a)(2), which is also the top of the third-degree range,
N.J.S.A. 2C:43-6(a)(3).
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supplying arms to drug distributers cries out for the need for general
deterrence.
The compelling public safety interest in deterring the importation of
assault weapons in these circumstances was not overridden by the trial court's
findings that defendant now regrets his decision, belatedly appreciates the
serious nature of the charges, and accepted responsibility for his actions by
pleading guilty. Nor is the need to deter others from engaging in such
inherently dangerous conduct overridden by the fact that defendant "was not a
'mastermind' or 'loyal follower' in furtherance of a crime as intended by our
laws." Contrary to the trial court's implicit suggestion, both the Graves Act
and presumption of imprisonment apply without regard to whether a defendant
is a criminal "mastermind," criminal gang member, or repeat offender. 6 To the
6
We are not familiar with the phrase "loyal follower in furtherance of a
crime" as used by the trial court. Presumably, the court was referring to the
fact that defendant does not have a criminal record and does not appear to have
been involved in the criminal milieu. We note that the reduction of the
mandatory 42-month parole ineligibility term authorized under N.J.S.A.
2C:43-6.2 already accounts for the fact that a defendant is a first-time
offender. See Benjamin, 228 N.J. at 368 (noting the statute authorizes 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"). A defendant who has previously been convicted of a Graves Act
offense, for example, is not eligible for the exception to the mandatory
minimum sentence. Relatedly, the offense of possession of a firearm by a
certain person, that is, a person previously convicted of certain designated
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extent the mitigating circumstances found by the trial court justify leniency,
such leniency is amply accounted for by the reduction, pursuant to N.J.S.A.
2C:43-6.2, of the three-and-one-half-year period of parole ineligibility
otherwise mandated by the Graves Act.
We add that the trial court's reliance upon the 2014 Attorney General
Clarification is misplaced. As we have already noted, the Attorney General
memorandum "is simply a statement of the current policy of the Attorney
General," and does not change the legal standard for overcoming the
presumption of imprisonment. See Waters, 439 N.J. Super. at 238–39. And in
any event, the trial court appears to have misinterpreted and grossly
overextended the Attorney General memorandum, which address situations
where an out-of-state gun owner "inadvertently" violates New Jersey law.
2014 Attorney General Clarification at 1. Defendant, it bears emphasis, was
not simply passing through New Jersey with the assault firearm in his
possession when he was fortuitously stopped by police. Rather, his plan was
to trade the weapon for a controlled substance in this state, leaving the weapon
crimes, N.J.S.A. 2C:39-7, is not eligible for the exception authorized in
N.J.S.A. 2C:43-6.2, which applies only to mandatory minimum terms imposed
pursuant to N.J.S.A. 2C:43-6(c). The certain persons offense carries its own
mandatory minimum sentence that is not subject to reduction under N.J.S.A.
2C:43-6.2.
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here in the custody of a drug dealer. Nor is this a situation as contemplated in
the 2014 Attorney General Clarification where an out-of-state visitor was
complying with the law of his or her state. It strains credulity to suggest that
defendant honestly believed that it would be legal in his home state to trade a
firearm for drugs. The point, simply, is that while defendant may have
lawfully acquired the weapon, his planned disposition of it cannot be
characterized as an inadvertent violation of New Jersey law. We reiterate,
moreover, that while defendant may not be a "criminal mastermind" or "loyal
follower in furtherance of a crime," to use the trial court's phraseology, his
conduct without question posed a threat to the safety of New Jersey residents
and must not be repeated by others.
In sum, the need to deter the arming of drug dealers is self-evident and
profound. We deem it inconceivable that the hardships that defendant and his
family will experience from his incarceration in state prison overrides the need
to deter others from importing an assault firearm into New Jersey to trade for
drugs.
We note, finally, that under the Graves Act sentencing framework, there
are only three authorized sentencing options for a defendant convicted of
unlawful possession of a firearm under N.J.S.A. 2C:39-5: (1) a state prison
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term with a forty-two-month period of parole ineligibility; (2) a state prison
term with a one-year period of parole ineligibility; or (3) probation, which may
include a county jail term. The first option, of course, is precluded by
defendant's plea agreement and the prosecutor's motion pursuant to N.J.S.A.
2C:43-6.2. The third option is precluded based upon our conclusion that the
circumstances in this case do not meet the high standard for overcoming the
presumption of imprisonment. Accordingly, we remand the matter and instruct
the trial court to impose a state prison term with a one-year period of parole
ineligibility.
We do not preclude the court from considering on remand whether to
reduce the overall state prison term pursuant to N.J.S.A. 2C:44-1(f)(2). Cf.
Corso, 355 N.J. Super. at 529 (remarking, that "the trial judge's findings would
certainly have justified sentencing defendant to a term one degree lower than
the degree of conviction, N.J.S.A. 2C:44-1(f)(2), and possibly even at the low
end of that range (we express no view as to what a proper sentence should
be).). We express no opinion on whether a sentence downgrade would be
appropriate other than to say that defendant should not be denied the
opportunity to seek a downgrade sentence under N.J.S.A. 2C:44-1(f)(2) by
reason of the trial court's mistaken decision to go beyond that form of leniency
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and impose a probationary sentence. Unless the State consents to a sentence
downgrade, the court shall convene a resentencing hearing at which the
prosecutor is afforded an opportunity to argue its opposition to an overall state
prison term within the third-degree range of sentences, e.g., three or four
years. See supra note 6. We reiterate that the sentence that is imposed on
remand must be to a state prison term and must include a one-year period of
parole ineligibility. We do not retain jurisdiction.
Sentence vacated and remanded for resentencing.
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