State v. Benjamin

• Decision Date: 05 April 2017
• Docket Number: Nos. A-43 September Term 2015, 076612.,s. A-43 September Term 2015, 076612.
• Citation: 228 N.J. 358,157 A.3d 427
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Kassey BENJAMIN, Defendant–Respondent.
• Court: New Jersey Supreme Court

228 N.J. 358

157 A.3d 427

STATE of New Jersey, Plaintiff–Appellant,

v.Kassey BENJAMIN, Defendant–Respondent.

Nos. A-43 September Term 2015, 076612.

Supreme Court of New Jersey.

Argued November 7, 2016

Decided April 5, 2017

Carol M. Henderson, Assistant Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General of New Jersey, attorney).

Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney).

Alexander R. Shalomargued the cause for amicus curiaeAmerican Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Mr. Shalom, Mr. Barocas, and Jeanne M. LoCicero, on the letter brief).

JUSTICE SOLOMON delivered the opinion of the Court.

We must determine whether a defendant seeking a waiver of the mandatory minimum sentence under the Graves Act is entitled to discovery of the prosecutor's files from cases in which other defendants were granted waivers of the mandatory minimum penalty.

The Graves Act prescribes a minimum term of incarceration for certain firearm-related offenses. For some first-time offenders, the statute contains a provision that allows the assignment judge, upon motion of the prosecutor or request of the sentencing judge with the prosecutor's approval, to waive the mandatory minimum sentence and impose either probation or a reduced mandatory custodial term. N.J.S.A. 2C:43–6.2 (section 6.2).

In this case, defendant was charged with various firearm-related offenses under the Graves Act. After the prosecutor denied defendant's request for a waiver of the mandatory penalty, defendant sought discovery of documents from recent cases in which the prosecutor had approved waivers for other first-time offenders. According to defendant, this would allow him to demonstrate the arbitrariness of the prosecutor's decision. The prosecutor declined to provide the requested files.

Ultimately, defendant pled guilty to possession of a weapon for an unlawful purpose. The Appellate Division vacated defendant's conviction, remanded the matter to the trial court, ordered the prosecutor to provide defendant with a written statement of reasons for denying the waiver, and allowed defendant to renew his request for discovery of previously granted waivers. We granted certification limited to the discovery issue.

We agree with the Appellate Division that, when denying a Graves Act waiver, the prosecutor must provide the defendant with a statement of reasons. However, we hold that defendants are not entitled to discovery of the prosecution's files for cases in which Graves Act waivers have been granted to other defendants. We therefore affirm but modify the judgment of the Appellate Division.

I.

The record reveals the following facts and procedural history. In July 2011, defendant and a few friends stood in the "drive-thru" lane of a McDonald's restaurant in Edison, New Jersey, blocking cars from passing. A vehicle approached, and one of its occupants yelled for the men to move. A verbal altercation ensued, and defendant brandished a firearm. Although defendant did not point the handgun at anyone, he threatened to fire it.

Defendant and his friends ended the confrontation by leaving the McDonald's. Subsequently, the occupants of the vehicle called the police. Responding officers observed defendant walking with a group of people in close proximity to the McDonald's. Because defendant was carrying a gun and matched the description of one of the suspects, officers approached and ordered defendant to drop the weapon. Defendant threw the handgun behind a nearby motor home, but officers were able to recover a 32–caliber revolver after they placed defendant under arrest. The weapon was unloaded and had the serial number scratched off.

Defendant was charged with various firearm-related offenses, including second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(a), which is subject to the mandatory minimum sentence under the Graves Act. When defendant was charged in 2011, the mandatory minimum term was three years.¹ At the time of his offense, defendant was an eighteen-year-old full-time college student with no juvenile or adult criminal history. Thus, as a first-time offender, defendant was eligible for a waiver of the mandatory term of incarceration under section 6.2.

Initially, defense counsel tried to persuade the prosecutor to file a motion recommending that the assignment judge waive the three-year mandatory minimum sentence, but the prosecutor did "not believe that the interests of justice dictate[d] a waiver" in defendant's case. Defendant then filed a motion asking the trial court to refer his case to the assignment judge with the hope that the prosecutor would consent to a waiver. Attached to his motion were numerous documents attesting to defendant's moral character and academic success.

The prosecutor opposed defendant's motion as procedurally improper because under section 6.2 a sentencing court, not the trial court, is authorized to refer the case to the assignment judge.

The prosecutor also argued that the matter could be referred to the assignment judge only with the prosecutor's approval. Up until that point, the prosecutor had not provided a written statement of reasons for his refusal to seek a waiver; the prosecutor only stated, "[a]s has been indicated in the past, the State does not believe that the interests of justice dictate a waiver ... in this case."

Around this time, defendant filed a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A–1 to –13, for various documents, including police reports, indictments, and plea forms for all Graves Act cases between 2010 and 2012 in which waivers were granted. According to defendant, the only way to prove that the prosecutor abused his discretion in denying a waiver was to compare the facts of defendant's case to the facts of other similar cases in which waivers were granted. The Middlesex County Prosecutor's Office denied his request, stating that there was "no single document offering a list of defendants who fall into this category and, under OPRA, we are not permitted to conduct research for requestors, or create documents that do not already exist."

After his failed attempts to obtain the prosecutor's consent to a waiver, defendant pled guilty to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(a) ; the State agreed to recommend that defendant be sentenced as a third-degree offender. At sentencing, defense counsel informed the court that the OPRA request to obtain information about other Graves Act waiver cases was unsuccessful. The court instructed the prosecutor to state on the record the reasons for refusing to move for a waiver. The prosecutor responded that his decision was "anything but arbitrary and capricious" because defendant's actions went beyond mere possession of a firearm, and that brandishing a weapon during an altercation is exactly the type of conduct the Graves Act seeks to deter.

The court acknowledged that this case differs from the "[w]aiver cases that the [c]ourt normally gets," where a person from out-of- state is caught in New Jersey carrying a firearm that he or she legally owns. The sentencing judge recognized that brandishing a gun was merely a "very silly, stupid mistake" on defendant's part, but concluded that the prosecutor's decision was not "arbitrary and capricious, or even quite frankly, respectfully, in error" because the firearm had been brandished.

The court identified the "clearly significant mitigating factors here," such as defendant's family status, young age, and lack of a prior criminal record. "[R]egardless of the fact that the mitigating factors substantially outweigh ... any aggravating factors," the court sentenced defendant in accordance with the plea agreement to three years' imprisonment with a mandatory three-year parole disqualifier pursuant to the Graves Act.

The Appellate Division vacated defendant's guilty plea in the interest of "fundamental fairness." State v. Benjamin , 442 N.J.Super. 258, 260, 122 A .3d 341 (App. Div. 2015). The panel remanded the case for proceedings consistent with State v. Alvarez , 246 N.J.Super. 137, 146–49, 586 A .2d 1332 (App. Div. 1991), which allows defendants to appeal the denial of a waiver to the assignment judge upon a showing of patent and gross abuse of discretion by the prosecutor. Benjamin , supra , 442 N.J.Super. at 264–67, 122 A. 3d 341.

Additionally, the appellate panel interpreted the Attorney General's Directive to Ensure Uniform Enforcement of the "Graves Act" (Oct. 23, 2008, as corrected Nov. 25, 2008) (Directive ) as requiring prosecutors to memorialize their reasons for denying a Graves Act waiver "as a means to ensure that waiver decisions are not disparate." Benjamin , supra , 442 N.J.Super. at 266, 122 A .3d 341. Thus, the panel observed that,

without knowing what aggravating or mitigating factors the prosecutor considered (required by the Directive), without a written explanation for the denial (other than the opposition to the motion), and without provision of other waiver case files (required by the Directive), defendant was severely disadvantaged in meeting his Alvarez burden. Moreover, given these circumstances, no informed judicial determination of the motion could be made.

[Ibid. ]

Accordingly, the panel instructed the prosecutor on remand to give defendant a written statement of reasons for the denial and allowed defendant to renew his request for discovery of files related to Graves Act waiver decisions by the prosecutor. Id. at 267.

After the Appellate Division's ruling, the Attorney General superseded the Middlesex County Prosecutor and petitioned this Court for review. We granted certification limited to the issue of "whether a defendant seeking a waiver of a mandatory sentence under the Graves Act has the right to discovery of the prosecutor's files on previous applications for ...