STATE OF NEW JERSEY VS. ALEXANDER A. ANDREWS (17-09-1005, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1348-19T1

STATE OF NEW JERSEY,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. June 15, 2020

APPELLATE DIVISION

ALEXANDER A. ANDREWS,

Defendant-Respondent.

_____________________________

Argued telephonically April 29, 2020 –

Decided June 15, 2020

Before Judges Koblitz, Whipple and Gooden Brown.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Middlesex County,

Indictment No. 17-09-1005.

Joie D. Piderit, Special Deputy Attorney

General/Acting Assistant Prosecutor, argued the cause

for appellant (Christopher L.C. Kuberiet, Acting

Middlesex County Prosecutor, attorney; Joie D. Piderit,

of counsel and on the brief).

Scott Michael Welfel, Assistant Deputy Public

Defender, argued the cause for respondent (Joseph E.

Krakora, Public Defender, attorney; Scott Michael

Welfel, of counsel and on the brief).

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

By leave granted, the State appeals from the October 21, 2019 Law

Division order granting defendant's motion to overrule the State's rejection of

his petition for a Graves Act waiver pursuant to N.J.S.A. 2C:43-6.2, "which

embodies the so called 'escape valve' to the mandatory sentence requirements

otherwise embodied in the Graves Act," N.J.S.A. 2C:43-6(c). State v. Alvarez,

246 N.J. Super. 137, 139 (App. Div. 1991). We affirm.

Defendant was charged in a Middlesex County indictment with second-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and

fourth-degree possession of prohibited devices, N.J.S.A. 2C:39-3(f). By letter

dated January 3, 2018, defendant asked the prosecutor to consider filing a

motion with the Assignment Judge for a waiver of the mandatory minimum

Graves Act sentence pursuant to N.J.S.A. 2C:43-6.2. In support, defendant

stated he was twenty-seven years old, and had "no prior juvenile dispositions[,]

. . . municipal or trial court convictions," and "no history of drug or alcohol

addiction." He was a gainfully employed "[h]igh [s]chool graduate," with "two

young children," and "full custody" of one of them. He explained that the

charges stemmed from his apprehension "for a traffic warrant," during which

"police discovered a weapon on his person" that he had "purchased . . . that day"

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because "he had been shot at the night before by his girlfriend's ex -boyfriend

and was fearful for his life." He submitted character references from supervisors

at work, members of his church, and his mentor, who was also a police officer.

In a May 16, 2018 response, the prosecutor determined "the interests of

justice [did] not warrant a relaxation of the Graves Act provisions" and

"reject[ed] defendant's petition for a . . . waiver." The prosecutor disagreed with

defendant's recitation of his criminal history, describing it as "limited" but

"concerning." According to the prosecutor,

[a]lthough these are defendant's only charges of an

indictable nature, his first contact with the criminal

justice system occurred as a juvenile in 2005 when he

was charged with disorderly conduct. Defendant was

successfully diverted and the charge was dismissed. As

an adult, defendant has incurred three local ordinance

violations and one disorderly persons conviction.

Notably, the facts underlying defendant's June 3, 2013,

local ordinance violation for loitering involved him

assaulting the victim, C.V., by punching her in the

stomach during a domestic dispute. Similarly,

defendant was convicted of simple assault on May 5,

2014, after again assaulting C.V. by striking her about

the body with a closed fist.

The prosecutor also determined

the facts of th[e] case militate against a Graves waiver.

Here, the fact that defendant illegally purchased a

handgun on the street in response to an alleged shooting

is incredibly troubling. Not only did defendant illegally

purchase that handgun, but he proceeded to load it with

illegal, maximum-injury producing, body armor-

piercing ammunition and concealed it on his person.

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Defendant's possession of a firearm presents a grave

and clear danger to not only the community, but also to

himself. To make matters worse, defendant did not

report the prior alleged shooting to the police and

admitted that he intended to use a form of "vigilante

justice" while out and about on a public street.

Although defendant readily admitted his illegal

possession of a loaded handgun to police and alleged

the handgun was solely for his protection, had

defendant not been arrested on that same day of its

purchase, the State can only imagine what could have

transpired that night. This behavior, coupled with

defendant's criminal history, runs counter to the

positive reputation suggested and encompassed in the

provided letters and illustrates that there is a strong

need to deter defendant from reoffending.

. . . . Condoning such use of a firearm and blatant

disregard of the law can only lead to "vigilante justice,"

thus putting the public in peril and eroding the criminal

justice process.

Defendant moved before the Assignment Judge "to overrule the State's

objection to his request for a Graves Act Waiver," asserting the rejection wa s

"inconsistent" with prior decisions and "constituted a patent and gross abuse of

discretion." In support, defendant disputed the State's recitation of his prior

criminal history, but asserted that its reliance on his "criminal past . . .

demonstrate[d] the State's arbitrary and disparate decision making" because the

State had "a history of requesting waivers for individuals with prior police

contacts, arrests, and adjudications." Further, according to defendant, the State's

reliance on "the facts of th[e] case" was predicated on a false premise because

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"there [were] no facts . . . to suggest" defendant "was prepared to engage in

'vigilante justice.'" Additionally, defendant pointed out that given the proposed

mitigating factors, 1 "specific deterrence [was] not needed" and "general

deterrence alone should not support a denial," otherwise, "no defendant would

be eligible for a waiver."

The State opposed defendant's application, noting this was "not a case

where defendant ha[d] no prior involvement with the system, or . . . lawfully

acquired and possessed the firearm in New Jersey or another state," or possessed

the gun "in New Jersey . . . incident to lawful travel," or possessed an "unloaded"

handgun. Although the State did not explicitly address the mitigating factors

proffered by defendant, the State reiterated that defendant had "a juvenile

contact" and "four prior municipal convictions," consisting of a 2009 "disorderly

1

Defendant specifically relied on mitigating factors one, N.J.S.A. 2C:44-

1(b)(1) ("defendant's conduct neither caused nor threatened serious harm"); two,

N.J.S.A. 2C:44-1(b)(2) ("defendant did not contemplate that his conduct would

cause or threaten serious harm"); four, N.J.S.A. 2C:44-1(b)(4) ("[t]here were

substantial grounds tending to excuse or justify [defendant's] conduct, though

failing to establish a defense"); seven, N.J.S.A. 2C:44-1(b)(7) ("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) ("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 [defendant] indicate that he is unlikely to commit another

offense"); ten, N.J.S.A. 2C:44-1(b)(10) ("defendant is particularly likely to

respond affirmatively to probationary treatment"); and eleven, N.J.S.A. 2C:44 -

1(b)(11) ("[t]he imprisonment of [defendant] would entail excessive hardship to

himself or his dependents").

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conduct" conviction, a 2013 "simple assault" conviction and "local ordinance

violation," and a 2014 "simple assault" conviction. In addition, the State pointed

out that defendant "ha[d] a pending matter" that he recently "picked up while he

was on the highest level of pre-trial monitoring" for the instant offenses.

According to the State, defendant "was arrested . . . after a motor vehicle stop

. . . in the middle of the night when he was supposed to be on home detention,"

resulting in the revocation of his pretrial release.

During oral argument, the judge expressed concern about the State

"treating similarly situated people differently" as evidenced by the fact that

Graves waivers were granted "to people who . . . had . . . more significant prior

contact with the system" than defendant. When the prosecuting attorney

expressed ignorance about such cases, the judge was confounded that the State

was not maintaining "[its] own chart," as the court was, in order to conduct "a

straightforward . . . evidence[-]based" comparative analysis among the cases.

Following oral argument, the judge granted defendant's application. In a

written statement of reasons accompanying the order, the judge determined the

State's denial was based on defendant's "criminal record" and his "rationale for

possessing the weapon, which was self-protection." Regarding defendant's

criminal record, the judge stated:

The court requested [defendant's] current and complete

criminal record based on alleged discrepancies with

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respect to his record. In the original letter denying

[defendant's] Graves application, the State

acknowledged that [defendant] had not committed any

prior indictable offenses. However, they based their

decision on a court generated document that may have

overstated [defendant's] criminal record. The State also

focused on the fact that following the weapons charge,

when [defendant] was placed on home detention, he

was arrested during a motor vehicle stop for a narcotics

offense, which resulted in the revocation of his pretrial

release. The copy of the criminal record provided to

[defendant] did not contain the offenses that were listed

in the court generated document.

A review of [defendant's] actual criminal history

record disclosed the following:

1. May 21, 2009, Petty Disorderly offense for

Improper Behavior, in violation of N.J.S.A.

2C:33-2(a)(2). Disposition: Guilty.

2. April 25, 2013, Disorderly Person offense

for Assault, in violation of N.J.S.A. 2C:12-1(a).

Disposition: Guilty.

3. June 19, 2013, Summons for a municipal

ordinance violation, charging [defendant] with

"Loud Radio." Disposition: Guilty.

4. August 31, 2013 Disorderly Person offense

for Assault, in violation of N.J.S.A. 2C:12-1(a).

Disposition: Not Guilty.

5. August 29, 2018, Disorderly Persons

offense Failure to Make Lawful Disposition in

violation of N.J.S.A. 2C:35-10(c). Disposition:

Dismissed.

[Defendant] had a 2005 juvenile charge for

Disturbing the Peace, which was dismissed on

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December 19, 2006. His record also indicates two Final

Restraining Orders, which were both dismissed against

[defendant] in 2015.

None of the offenses of which [defendant] was

found guilty were indictable offenses. The State has

granted Graves [w]aivers to individuals with more

substantial criminal records than [defendant].

Next, turning to defendant's purpose in possessing the gun, the judge

implicitly rejected the State's "vigilante justice" characterization, and addressed

the State's rejection of defendant's "'self-protection' rationale" 2 as follows:

[T]he "self-protection" rationale was accepted by the

State in the following matters:

1. In the matter of State v. Isaiah Martinez,

Indictment No. 18-03-473, after a [m]otor

[v]ehicle stop, a handgun was recovered from the

trunk of Mr. Martinez's vehicle. The gun was

wrapped in a pair of camouflage pants. Mr.

Martinez claimed he was travelling from Florida

to New Jersey and stated he carried the handgun

for protection as it is legal to do so in Florida.

The State granted a Graves [w]aiver and

recommended a sentence of non-custodial

probation. At the time of the offense, Mr.

Martinez had three out-of-state convictions for

Possession of Marijuana, Simple Assault and a

Motor Vehicle traffic violation.

2. In the matter of State v. Gregory Horton,

Indictment No.[] 16-08-1411, police were

2

See State v. Harmon, 104 N.J. 189, 207 (1986) ("If an individual's possession

of a firearm is motivated honestly by a self-protective purpose, then his

conscious object and design may remain not to do an unlawful act, and a material

element of a [N.J.S.A. 2C:39-4(a)] violation has not been met.").

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dispatched on a dispute call. While [en route],

officers were advised that Mr. Horton was on the

premises with a shotgun. As officers approached

the residence, Mr. Horton ran out the back door.

When asked about the shotgun, Mr. Horton

advised the shotgun was in his van, which was

parked on the property. Mr. Horton advised

officers that the loaded shotgun was for

protection from his girlfriend's family and

friends, who he claimed threatened to "get him."

At the time of the offense, Mr. Horton had two

municipal court convictions for Shoplifting and

Sell Paging Device to Person Under [eighteen];

one Local Ordinance violation for Snow

Removal; one PTI completion for Poss

CDS/Analog Schd. I II Ill IV; and two

Misdemeanor convictions in North Carolina for

Habitual Felon Driving While Impaired and

Driving While License Revoked.

3. In the matter of State v. George James,

Accusation No. 17-02-235, after a [m]otor

[v]ehicle stop, officers noticed a rolled marijuana

cigarette in the ashtray and the odor of raw

marijuana. A search of [the] vehicle's trunk

revealed a Beretta .22 Bobcat pistol loaded with

five rounds in the chamber. Mr. James indicated

that he did not have a permit for the gun and

stated that his cousin was murdered in 2016 and

his cousin's brother was recently jumped. The

gun was for his protection. At the time of the

offense, Mr. James had one successful juvenile

diversion for Shoplifting-Retail.

The judge explained that while defendant was "foreclosed from obtaining

any discovery from the prosecutor's office to determine if the denial violate[d]

the standard set forth in Alvarez," as the judge who "reviews all waiver cases,"

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he was "in the best position to determine whether the Alvarez standard has been

violated." The judge determined that based on the disparity between the c ases,

and the "apparent discrepancy" in the State's assessment of defendant's criminal

record "coupled with [defendant's] relatively minor criminal record," the State's

"denial of a Graves [w]aiver" was "arbitrary, capricious, or unduly

discriminatory" and thus fell "within the Alvarez proscription."

On appeal, the State argues the judge "abused his discretion," "misapplied

the clear dictates" of Alvarez and State v. Benjamin, 228 N.J. 358 (2017),

"substitute[ed] his judgement for that of the prosecutor," and rendered a decision

that "was based on an unidentified and undisclosed 'infamous chart,' [3] which

apparently contained summaries of other unrelated cases in which the State

permitted a Graves Act waiver."

"Enacted in 1981 as 'a direct response to a substantial increase in violent

crime in New Jersey,' the Graves Act is intended 'to ensure incarceration for

those who arm themselves before going forth to commit crimes.'" State v.

Nance, 228 N.J. 378, 390 (2017) (quoting State v. Des Marets, 92 N.J. 62, 68

(1983)).

As amended, the statute applies to a defendant who is

convicted of one of the offenses enumerated in the

statute "who, while in the course of committing or

3

At a subsequent proceeding, the prosecuting attorney asked the judge to make

the chart a "part of the record." The judge denied the request.

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attempting to commit the crime, including the

immediate flight therefrom, used or was in possession

of a firearm as defined in [N.J.S.A.] 2C:39-1(f)."

[Ibid. (alteration in original) (quoting Des Marets, 92

N.J. at 64 n.1).]

The Graves Act requires the imposition of a minimum term "fixed at one-

half of the sentence imposed by the court or [forty-two] months, whichever is

greater, or [eighteen] months in the case of a fourth degree crime, during which

the defendant shall be ineligible for parole." N.J.S.A. 2C:43-6(c). "To mitigate

the undue severity that might accompany the otherwise automatic application of

the mandatory minimum sentence under the Graves Act," N.J.S.A. 2C:43-6.2

(Section 6.2) provides "a limited exception that allows certain first-time

offenders to receive a reduced penalty if the imposition of a mandatory term

would not serve the interests of justice." Benjamin, 228 N.J. at 368.

Pursuant to Section 6.2,

On a motion by the prosecutor made to the assignment

judge that the imposition of a mandatory minimum term

of imprisonment under . . . [N.J.S.A. 2C:43-6(c)] for a

defendant who has not previously been convicted of an

offense under that subsection . . . does not serve the

interests of justice, the assignment judge shall place the

defendant on probation pursuant to [N.J.S.A. 2C:43-

2(b)(2)] or reduce to one year the mandatory minimum

term of imprisonment during which the defendant will

be ineligible for parole.

[N.J.S.A. 2C:43-6.2.]

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In accordance with Alvarez, defendants may "appeal the denial of a waiver

to the assignment judge upon a showing of patent and gross abuse of discretion

by the prosecutor." Benjamin, 228 N.J. at 364. In reviewing a prosecutor's

decision on a defendant's application for pre-trial intervention (PTI), our

Supreme Court "defined the 'patent and gross abuse of discretion' standard" as

requiring a party to "show that the prosecutor's decision failed to consider all

relevant factors, was based on irrelevant or inappropriate factors, or constituted

a 'clear error in judgment.'" State v. Nwobu, 139 N.J. 236, 247 (1995) (quoting

State v. Bender, 80 N.J. 84, 93 (1979)).

To make the showing delineated in Alvarez, "a defendant must, by motion

to the assignment judge, demonstrate 'arbitrariness constituting an

unconstitutional discrimination or denial of equal protection' in the prosecutor's

decision." Benjamin, 228 N.J. at 372 (quoting Alvarez, 246 N.J. Super. at 148).

See State v. Sutton, 80 N.J. 110, 119-20 (1979) (holding that in order to make a

similar showing in a challenge to the prosecutor's denial of PTI, the defendant

could not prevail merely because she could show that the prosecutor approved

PTI for others "charged with similar offenses" but needed to prove that she

received "less favorable treatment than identically situated individuals.").

"Once a defendant makes this threshold showing, the defendant can obtain a

hearing to review the prosecutor's decision if the assignment judge concludes

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that the 'interests of justice' so require." Benjamin, 228 N.J. at 372-73 (quoting

Alvarez, 246 N.J. Super. at 148-49).

In 2008, the New Jersey Attorney General issued a directive to prosecutors

"'to ensure statewide uniformity in the exercise of prosecutorial discretion in

implementing' the Graves Act." Id. at 369 (quoting Attorney General's Directive

to Ensure Uniform Enforcement of the "Graves Act" (Oct. 23, 2008, as corrected

Nov. 25, 2008) (the Directive)). "The Directive instructs a prosecutor

contemplating a waiver to 'consider all relevant circumstances concerning the

offense conduct and the offender,' such as applicable aggravating and mitigating

factors under [N.J.S.A.] 2C:44-1 and the likelihood of the defendant's conviction

at trial." Ibid. (quoting the Directive at 12).

Under the Directive, unless (1) the defendant is ineligible for a waiver due

to a prior conviction for a Graves Act offense, (2) there is a "substantial

likelihood that the defendant is involved in organized criminal activity," (3) "the

prosecuting agency determines that the aggravating factors applicable to the

offense conduct and offender outweigh any applicable mitigating

circumstances," or (4) "the prosecuting agency determines that a sentence

reduction to a one-year term of parole ineligibility would undermine the

investigation or prosecution of another," "[t]he prosecuting agency as part of the

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State's initial plea offer shall agree to move pursuant to [N.J.S.A.] 2C:43-6.2 for

a reduction to a one-year term of parole ineligibility." Directive at 7-14.

Significantly, the Directive also mandates specific record-keeping by

prosecutors, including requiring documentation of the prosecuting agency's

"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," and the maintenance of "[a] copy of all case-specific

memorializations . . . 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 th[e] Directive." Benjamin, 228 N.J. at 369-70

(quoting the Directive at 13-14).

In Benjamin, the Court held that in a challenge to "the denial of a Graves

Act waiver in an Alvarez motion," defendants "seeking to demonstrate that the

prosecutor acted arbitrarily" were not "entitled to discovery of the Directive -

mandated 'case-specific memorializations' and cumulative files of prosecutorial

decisions . . . for cases other than their own." Id. at 373-75. The Court reasoned

that there were "sufficient procedural safeguards in place for meaningful judicial

review of a prosecutor's waiver decision." Id. at 375. In that regard, the Court

noted that "[a]ll case-specific files should contain a statement of reasons which,

upon a defendant's Alvarez motion, the assignment judge may consider in

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assessing the prosecutor's conduct, as the statement will show the prosecutor's

reasons not to grant a waiver for a particular defendant." Id. at 373. "This

judicial backstop ensures that prosecutorial discretion is not unchecked because

the assignment judge retains 'ultimate authority' to review the prosecutor's

waiver decisions for arbitrariness and discrimination." Ibid.

Here, the State challenges the judge's methodology, asserting "the trial

court's review of the prosecutor's Graves Act waiver decision is limited to the

case before it for review and does not extend to other similarly-situated

defendants." While the State acknowledges that, consistent with Benjamin,

"records must be kept by the prosecutor's office so the Attorney General and the

prosecutor's office [can] internally regulate compliance with the Attorney

General Directive on Graves Act waiver cases," the State contends "these

records are not maintained so the trial court . . . [can] perform a comparative

analysis or proportionality review of other cases."

This position is markedly different from the approach adopted by the State

in Benjamin, where "the State stresse[d] that because all waiver applications . . .

pass through the assignment judge, that judge is in the 'best position' to identify

discriminatory practices." Id. at 366. Indeed, because the State is obligated to

provide the case-specific files containing its statement of reasons to the

assignment judge to consider in assessing the prosecutor's conduct, we do not

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read Benjamin as prohibiting the assignment judge from maintaining those files

and relying on them in evaluating "the prosecutor's waiver decisions for

arbitrariness and discrimination" as occurred here. Id. at 373. As Justice Albin

pointed out in his dissenting opinion, "[n]othing prevents the judiciary from

maintaining [the statements of reasons filed with the Assignment Judge in other

waiver cases] in a central file so that historical information will be available to

. . . assignment judges." Id. at 377-78 (Albin, J., dissenting). Benjamin only

prohibits defendants from gaining access to these "[Directive]-mandated 'case-

specific memorializations,'" not assignment judges whose very roles as the

"judicial backstop" to "ensure[] that prosecutorial discretion is not unchecked"

require such access to make an informed determination. Id. at 373.

The State argues further that the judge's "quasi-proportionality analysis

. . . was fatally flawed" because "the prosecutor was unfamiliar with those

unrelated cases," "was not given a meaningful opportunity to address the court's

concerns based on its comparisons," and "[t]he other-cited cases were poor

candidates for comparison." During the December 18, 2018 oral argument, the

judge extensively questioned the prosecuting attorney about her office treat ing

"similarly situated people differently," noting, in particular, that her office had

granted Graves waivers "to people . . . with . . . more significant prior contact

with the system" than defendant. The prosecuting attorney responded she did

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not "know how those other defendants [were] situated" or "the specific facts of

those cases." The judge's decision was not rendered until October 21, 2019.

Between oral argument and the issuance of the judge's decision, the prosecutor

failed to respond to the judge's concerns, despite the fact that the State had

access to "all case-specific memorializations" based on its obligation to maintain

"a separate cumulative file" to facilitate Attorney General audits. Benjamin,

228 N.J. at 370 (quoting the Directive at 14). Presumably, the State had access

to the same materials considered by the judge.

Additionally, in the judge's written statement of reasons, the judge

identified three specific cases upon which he relied to support his conclusion

that the prosecutor's denial of the Graves waiver in this case was arbitrary and

discriminatory. While the State asserts on appeal that these cases are "poor

candidates for comparison," the State neither moved for reconsideration before

the trial court, see State v. Puryear, 441 N.J. Super. 280, 293 (App. Div. 2015)

(acknowledging that motions for reconsideration are permitted in criminal

matters), nor substantively argues on appeal the basis for its bald conclusion.

Instead, the State simply describes the judge's analysis "as cursory." On the

contrary, we are satisfied that the judge's robust review and analysis were sound,

and fulfilled the role contemplated in Benjamin, to "ensure[] that prosecutorial

discretion is not unchecked." 228 N.J. at 373. Indeed, while we do not deprecate

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the seriousness of the crimes, we agree with the judge's implicit finding that

"within the constellation of Graves Act cases," this one is "deserving of some

leniency." State v. Mello, 297 N.J. Super. 452, 468 (App. Div. 1997).

Affirmed.

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