State v. Arroyo-Nunez, DOCKET NO. A-3746-20

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: MESSANO, P.J.A.D.
• Citation: 269 A.3d 1154,470 N.J.Super. 351
• Docket Number: DOCKET NO. A-3746-20
• Decision Date: 18 January 2022
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Diego ARROYO-NUNEZ, a/k/a Diego Arroyo, and Diego Nunez, Defendant-Appellant.

470 N.J.Super. 351
269 A.3d 1154

STATE of New Jersey, Plaintiff-Appellant,
v.
Diego ARROYO-NUNEZ, a/k/a Diego Arroyo, and Diego Nunez, Defendant-Appellant.

DOCKET NO. A-3746-20

Superior Court of New Jersey, Appellate Division.

Argued November 15, 2021
Decided January 18, 2022

Claudia Joy Demitro, Assistant Attorney General, argued the cause for appellants (Andrew J. Bruck, Acting Attorney General, attorney for appellant State of New Jersey; Jeremy Feigenbaum, State Solicitor, Alec Schierenbeck, Deputy State Solicitor, and Claudia Joy Demitro, of counsel and on the joint brief).

Joseph E. Krakora, Public Defender, attorney for appellant Diego Arroyo-Nunez; (Alison Perrone, First Assistant Deputy Public Defender, of counsel and on the joint brief).

Joseph Paravecchia, Assistant Hunterdon County Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Esther Suarez, President, County Prosecutors Association, Hudson County Prosecutor, attorney; Joseph Paravecchia, of counsel and on the brief).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey, attorneys; Alexander Shalom, Newark, and Jeanne LoCicero, on the brief).

Before Judges Messano, Accurso and Rose.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

269 A.3d 1156

470 N.J.Super. 355

This appeal comes to us in an unusual posture. The State of New Jersey and defendant Diego Arroyo-Nunez both appeal from the Law Division's August 24, 2021 order that denied appellants’ joint motion to vacate the mandatory period of parole ineligibility portion of defendant's sentence. Appellants filed that motion pursuant to former Attorney General (AG) Gurbir Grewal's Law Enforcement Directive No. 2021-4, "Directive Revising Statewide Guidelines Concerning the Waiver of Mandatory Minimum Sentences in Non-Violent Drug Cases Pursuant to N.J.S.A. 2C:35-12," (April 19, 2021) (the Directive). The Directive anticipated joint motions filed by prosecutors and defense counsel would be cognizable pursuant to Rule 3:21-10(b)(3) (the Rule ), which permits a court to enter an order "at any time ... changing a sentence for good cause shown upon the joint application of the defendant and the prosecuting attorney."

Defendant pled guilty on April 3, 2019, to an accusation charging him with first-degree distribution of five or more ounces of cocaine, N.J.S.A. 2C:35-5(b)(1). Pursuant to a negotiated plea bargain, the State agreed to dismiss all other pending charges and recommend a sentence not to exceed an eleven-year term of imprisonment with twenty-four months of parole ineligibility. At sentencing on June 7, 2019, the judge imposed a sentence in conformance with the agreement. Defendant never filed an appeal or a petition for post-conviction relief.

On June 28, 2021, pursuant to the Rule and the Directive, the State and defendant filed a joint motion to change defendant's sentence by vacating the period of parole ineligibility. Pursuant to the Supreme Court's earlier May 26, 2021 order and Notice to the

470 N.J.Super. 356

Bar,¹ the joint motion, along with approximately six hundred applications filed jointly by the State and other defendants, was assigned to a specially designated judge.

On August 20, 2021, while the joint motion was pending, defendant was released on parole. Four days later, the judge denied the motion in an oral decision memorialized in writing. She concluded the Directive would effectively "invalidate a statute," N.J.S.A. 2C:35-12 (Section 12), part of the Comprehensive Drug Reform Act of 1987 (the CDRA), N.J.S.A. 2C:35-1 to - 36A-1, thereby invading the province

269 A.3d 1157

of the Legislature contrary to the separation of powers doctrine. See N.J. Const. art. III, para. 1 ("The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others except as expressly provided in this Constitution."). This joint appeal followed.

Appellants urge us to reverse the order, arguing the judge mistakenly interpreted Section 12, resulting in an untenable restriction on the Directive's implementation that negatively affects hundreds of other defendants ostensibly eligible for reduction or elimination of the mandatory minimum aspect of their sentences. Amici American Civil Liberties Union of New Jersey (ACLU) and the County Prosecutors Association of New Jersey (CPA) also contend that reversal is warranted.

Having considered the arguments in light of the record and applicable legal principles, we agree the judge misinterpreted Section 12, as interpreted by the Court, and also failed to recognize subsequent amendments to the CDRA that reflect the Legislature's changing attitude toward the criminal prosecution of drug

470 N.J.Super. 357

offenders, and its intention to ameliorate the more punitive aspects of the CDRA on which the judge primarily focused. We therefore reverse the order under review. At the same time, we emphasize that whether any joint motion brought pursuant to the Directive and Rule 3:21-10(b)(3) demonstrates "good cause" for sentence modification is solely for the court to decide.

I.

We start by examining the genesis of the Directive and its specific provisions that require county prosecutors to make joint applications with defendants for sentence modifications in certain cases.

The Criminal Sentencing and Disposition Commission (the Commission)

The Legislature created the Commission in 2009. See L. 2009, c. 81; N.J.S.A. 2C:48A-1 to -4. The statute provides: "[I]t shall be the duty of the [C]ommission to conduct a thorough review of the criminal sentencing provisions of New Jersey law for consideration of possible recommendations for revisions to the laws governing the criminal justice system." N.J.S.A. 2C:48A-2(a). These recommendations were intended to "provid[e] a rational, just and proportionate sentencing scheme that achieves to the greatest extent possible public safety, offender accountability, crime reduction and prevention, and offender rehabilitation[,] while promoting the efficient use of the State's resources" and also "consider[ing] issues regarding disparity in the criminal justice process." Ibid. The Commission was not constituted and did not meet until 2018; it issued its first report in November 2019. New Jersey Criminal Sentencing and Disposition Commission, Annual Report (Nov. 2019) (Commission Report ).²

470 N.J.Super. 358

The Commission found there was a "consistent increase in the percentage of people sentenced to mandatory minimum terms" in our State, along with "fundamentally inequitable racial and ethnic disparities" in our prison populations. Id. at 19. To address these concerns, the Commission issued "proposals [that] w[ould] result in meaningful sentence reductions for a large number of state inmates who are

269 A.3d 1158

highly unlikely to pose a risk to public safety." Id. at 21. The Commission unanimously endorsed nine recommendations, including the following four:

1. Eliminate mandatory minimum sentences for nonviolent drug crimes.

2. Eliminate mandatory minimum sentences for nonviolent property crimes.

3. Reduce the mandatory minimum sentence for two crimes — second[-]degree robbery and second[-] degree burglary — that previously have been subject to penalties associated with far more serious offenses.

4. Apply Recommendations #1, #2, and #3 retroactively so that current inmates may seek early release.

[See id. at 21–34.]

We focus primarily on Recommendations #1 and #4.

The Commission urged elimination of mandatory minimum parole ineligibility terms for the following seven "non-violent drug crimes":

1. N.J.S.A. 2C:35-3 : Leader of narcotics trafficking network

2. N.J.S.A. 2C:35-4 : Maintaining or operating a CDS production facility

3. N.J.S.A. 2C:35-5 : Manufacturing, distributing, or dispensing CDS

4. N.J.S.A. 2C:35-6 : Employing a juvenile in a drug distribution scheme

5. N.J.S.A. 2C:35-7 : Distributing, dispensing, or possessing CDS within 1000 feet of a school

6. N.J.S.A. 2C:35-8 : Distribution of CDS to persons under age 18

7. N.J.S.A. 2C:43-6(f) : Recidivist CDS offenders³

[Commission Report at 22.]

All but one of these provisions were part of the CDRA when enacted.⁴

470 N.J.Super. 359

The Commission explained the CDRA had "fundamentally shifted the sentencing paradigm undergirding Title 2C by providing judges with no sentencing recourse from the imposition of mandatory minimum sentences, regardless of the circumstances of the offense, the culpability of the offender, or the length of the applicable mandatory minimum term." Commission Report at 15. With respect to Recommendation #4, the...