State v. Andrews

• Decision Date: 15 June 2020
• Docket Number: DOCKET NO. A-1348-19T1
• Citation: 464 N.J.Super. 111,234 A.3d 323
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Alexander A. ANDREWS, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

464 N.J.Super. 111

234 A.3d 323

STATE of New Jersey, Plaintiff-Appellant,

v.Alexander A. ANDREWS, Defendant-Respondent.

DOCKET NO. A-1348-19T1

Superior Court of New Jersey, Appellate Division.

Argued telephonically April 29, 2020

Decided June 15, 2020

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).

Before Judges Koblitz, Whipple and Gooden Brown.

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, 586 A.2d 1332 (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" 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. 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 was "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 "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 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 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 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 " ‘...