State v. Alvarez

• Decision Date: 14 February 1991
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Armando ALVAREZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 137

246 N.J.Super. 137

586 A.2d 1332

STATE of New Jersey, Plaintiff-Respondent, v. Armando ALVAREZ, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Jan. 24, 1991.

Decided Feb. 14, 1991.

Mario J. D'Alfonso for defendant-appellant (Mario J. D'Alfonso, Merchantville, on the brief and letter briefs).

Jessica S. Oppenheim, Deputy Atty. Gen., plaintiff-respondent (Robert J. Del Tufo, Atty. Gen., attorneyS Jessica S. Oppenheim of counsel and on the letter brief and supplementary brief).

Before Judges KING, R.S. COHEN and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

This case requires us to consider the constitutionality of 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:43-6c. We construe the statute to be constitutional, but remand for further sentencing proceedings consistent with this opinion.

I.

Defendant was convicted of fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count one); fourth degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(f) (count two); third degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three), and second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Defendant was sentenced to concurrent sentences aggregating seven years, with three years before parole eligibility being imposed as a result of count four. The three year ineligibility term was prescribed by the Graves Act, N.J.S.A. 2C:43-6c. The sentence was imposed on May 19, 1989, just over one month after the effective date of N.J.S.A. 2C:43-6.2, April 14, 1989. See L.1989, c. 53.

After imposition of sentence, defendant moved before the Assignment Judge for reconsideration of the sentence pursuant to N.J.S.A. 2C:43-6.2. The prosecutor opposed the application, stating that "[t]he State does not feel that the sentence imposed is such as to thwart the interest of justice." As the prosecutor did not join in the motion or consent to it, we are told that the Assignment Judge declined to entertain the application. On this appeal defendant argues:

POINT I THE COURT ERRED IN FAILING TO CONDUCT A HEARING UPON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OF A WARRANTLESS

SEARCH AND IN ADMITTING THE OUT-OF-COURT IDENTIFICATION.

POINT II THE COURT ERRED IN ITS APPLICATION OF THE GRAVES ACT IN THAT THE OPERABILITY AND POSSESSION OF THE FIREARM WAS NOT PROVEN.

POINT III N.J.S.A. 2C:43-6.2 VIOLATES DUE PROCESS AND EQUAL PROTECTION OF THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION, AS APPLIED BY THE COURT.

POINT IV THE COURT ERRED IN ITS CHARGE TO THE JURY BY DIRECTING A VERDICT.

We find that the claims embodied in Points I, II and IV are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2). Upon consideration of the matter as originally submitted to us, however, we felt that disposition of Point III also required consideration of the "separation of powers" doctrine and the appropriate remedy to be applied should the statute be found to be unconstitutional. We have the benefit of the parties' supplementary briefs and argument on those subjects.

II.

As defendant was sentenced after the effective date of N.J.S.A. 2C:43-6.2, he should have requested that the sentencing judge refer the matter to the Assignment Judge at the time of sentencing. A motion for reconsideration of a Graves Act sentence as authorized by the statute falls under N.J.S.A. 2C:43-6.3 with respect to a defendant already serving a Graves Act sentence at the time N.J.S.A. 2C:43-6.2 was adopted. Hence, N.J.S.A. 2C:43-6.2 and -6.3 provide an "escape valve" for defendants convicted before and after their effective date. ¹ Because this case was briefed and argued under N.J.S.A. 2C:43-6.2 and because the statutes are parallel, we decide the case as presented to us as if a timely request for reference was made under N.J.S.A. 2C:43-6.2. ²

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 subsection c. of N.J.S. 2C:43-6 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. 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. (emphasis added). ³

We are, of course, obligated to interpret legislation, where possible, to preserve its constitutionality. See e.g. Right to Choose v. Byrne, 91 N.J. 287, 311, 450 A.2d 925 (1982); N.J. Board of Higher Ed. v. Bd. of Directors of Shelton College, 90 N.J. 470, 478, 448 A.2d 988 (1982); State v. De Santis, 65 N.J. 462, 473-474, 323 A.2d 489 (1974); State v. Negron, 118 N.J.Super. 320, 323, 287 A.2d 461 (App.Div.1972). In that context, it is suggested that, so long as the Assignment Judge maintains the authority to reject the prosecutor's sentence recommendation, there is no separation of powers problem because the Assignment Judge must ultimately determine whether defendant is to be sentenced under the mandatory provisions of the Graves Act or is to be subject to the "escape valve" embodied in N.J.S.A. 2C:43-6.2. Cf. State v. Todd, 238 N.J.Super. 445, 462, 570 A.2d 20 (App.Div.1990) (holding that the legislature intended "to reserve to the judiciary the power to approve or reject any agreement between the defendant and the State" which implements the N.J.S.A. 2C:35-12 "escape valve" to mandatory sentencing otherwise required by the Comprehensive Drug Reform Act of 1986). However, we do not adopt that course. Independent of the fact that any separation of powers issue is not satisfied exclusively by the Assignment Judge's authority under N.J.S.A. 2C:43-6.2 to make the "in-out" decision (that is the decision as to whether probation or a one-year ineligibility term is to be imposed), the statute does not expressly permit the Assignment Judge to reject the prosecutor's affirmative recommendation. While the second sentence of N.J.S.A. 2C:43-6.2 does not expressly require the Assignment Judge to impose a sentence thereunder when the prosecutor approves the reference of the case to the Assignment Judge by the sentencing court, there is no doubt that the Assignment Judge's obligation upon such reference is no different than his obligation under the first sentence of N.J.S.A. 2C:43-6.2 upon the prosecutor's motion. See State v. Ginty, 243 N.J.Super. 39, 42-43, n. 2, 578 A.2d 400 (App.Div.1990). Where the prosecutor moves or consents, N.J.S.A. 2C:43-6.2 requires, by virtue of the word "shall", that the Assignment Judge impose a probationary sentence, N.J.S.A. 2C:43-2b, or a sentence with a mandatory ineligibility term of one year. It does not permit the Assignment Judge to impose either of those alternatives or to reject any deviation from the mandatory ineligibility term otherwise required by N.J.S.A. 2C:43-6c.

III.

This case involves a trial and a "post conviction" challenge to the validity of N.J.S.A. 2C:43-6.2. If defendant had entered into a negotiated disposition, there could be no separation of powers concern. The trial judge would have the right and obligation to either accept or reject the recommendation, and, therefore, the ultimate sentencing authority would remain with the court. See State v. Todd, supra. ⁴ With respect to the separation of powers doctrine, see generally, Worthington v. Fauver, 88 N.J. 183, 206, 440 A.2d 1128 (1982); State v. Leonardis, 73 N.J. 360, 370, 375 A.2d 607 (1977). But the separation of powers issue before us relates to a "post-conviction" attempt to obtain prosecutorial consent and is mixed with the "due process" contention by virtue of the fact that defendant may be treated differently because he exercises his right to jury trial than one who negotiates a disposition by plea with the prosecutor.

We reject the due process concern because the defendant in a non-capital case may be treated differently in this context upon exercising his right to jury trial than one who does not. See State v. Corbitt, 74 N.J. 379, 378 A.2d 235 (1977) (no Fifth, Sixth or Fourteenth Amendment violation because defendant who pled guilty could receive a lesser sentence than one who did not), aff'd sub nom Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978) (noting difference between capital and non-capital case and propriety of leniency where plea is entered). Such is the case even though under N.J.S.A. 2C:43-6.2 the defendant would not get the same sentence by virtue of an agreement than he must otherwise obtain in the absence of same; see also e.g., Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

N.J. Const. (1947), Art. III, par. 1, requires that no branch of state government "exercise any of the powers properly belonging to either of the others, except as expressly provided in [the] Constitution." State v. Todd cites several cases for the proposition that the separation of powers doctrine is violated when judicial sentencing authority is subjected to control by the prosecutor. See e.g. People v. Navarro, 7 Cal.3d 248, 102 Cal.Rptr. 137, 144-145, 497 P.2d 481, 488-489 (1972) (post-conviction prosecutorial control over sentencing authority violative of separation of powers); State v. Olson, 325 N.W.2d 13 (Minn.1982); Brugman v. State, 255 Ga. 407, 339 S.E.2d 244 (1986); State v. Jones,...