State v. Rodriguez

• Decision Date: 25 January 2021
• Docket Number: DOCKET NO. A-3586-19T4
• Citation: 466 N.J.Super. 71,245 A.3d 598
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Abner RODRIGUEZ, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

466 N.J.Super. 71

245 A.3d 598

STATE of New Jersey, Plaintiff-Appellant,

v.Abner RODRIGUEZ, Defendant-Respondent.

DOCKET NO. A-3586-19T4

Superior Court of New Jersey, Appellate Division.

Submitted December 14, 2020

Decided January 25, 2021

Yolanda Ciccone, Middlesex County Prosecutor, attorney for appellant (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

Law Office of Jarred S. Freeman, LLC, attorney for respondent (Jarred S. Freeman, Clark, of counsel and on the brief).

Before Judges Fasciale, Mayer, and Susswein.

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

By leave granted, the State appeals from the June 22, 2020 Law Division order granting defendant's motion to overrule the prosecutor's rejection of his request for a Graves Act¹ waiver pursuant to N.J.S.A. 2C:43-6.2. That statute "embodies the so called ‘escape valve’ to the mandatory sentence requirements otherwise embodied in the Graves Act." State v. Alvarez, 246 N.J. Super. 137, 139, 586 A.2d 1332 (App. Div. 1991). We conclude that defendant failed to establish that the prosecutor's rejection of his request for a Graves Act waiver constituted a patent and gross abuse of discretion. We therefore are constrained to vacate the Law Division order granting a Graves Act waiver.

I.

We begin by recounting the pertinent facts and procedural history, recognizing that because this case comes to us before trial or any evidentiary hearings, the record is sparse. On March 29, 2019, police were preparing to execute a search of defendant and his residence pursuant to a duly issued warrant. The probable cause for the search warrant was predicated on three "controlled buys" of controlled dangerous substances (CDS). Before the officers could execute the search warrant, defendant entered a car operated by Luis Quiles, who police had previously identified as a drug dealer.² The vehicle sped off when the officers approached it. During the ensuing motor vehicle pursuit, police observed unknown items tossed from the passenger side window. Those items were later recovered and identified as plastic bags containing approximately eighteen grams of cocaine.³ After the vehicle stopped, defendant exited and was eventually apprehended.

When police searched defendant's person, they discovered a plastic bag containing a white powdery substance believed to be cocaine and house keys to the residential property identified in the search warrant. Police also searched the vehicle and found $300 in cash and twenty-six prescription pills. The search of defendant's residence pursuant to the warrant revealed additional evidence, including two plastic bags that each contained a gram of suspected cocaine, a bag of marijuana, a digital scale, a box containing empty plastic bags, a .22 caliber rifle, and sixty-four hollow-point bullets.⁴ The police later determined the rifle was stolen.

Defendant was charged in a Middlesex County indictment with eight counts:⁵ third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) ; second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2) ; third-degree possession of CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 ; fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) ; third-degree financial facilitation of criminal activity (money laundering), N.J.S.A. 2C:21-25(a) ; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) ; second-degree possession of a firearm while in the course of committing a drug distribution/possession with intent to distribute crime, N.J.S.A. 2C:39-4.1 ; and third-degree receiving stolen property, N.J.S.A. 2C:20-7.

The charges for violation of N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:39-4.1 are designated as Graves Act offenses under N.J.S.A. 2C:43-6(c) and carry a mandatory term of parole ineligibility fixed at forty-two months. By letter dated May 28, 2019, defendant asked the prosecutor to file a motion for a waiver of the mandatory minimum Graves Act sentence pursuant to N.J.S.A. 2C:43-6.2. In support of that request, defendant attached character reference letters from his employer, family, and friends.

In an October 16, 2019 written response, the prosecutor rejected defendant's request for a Graves Act waiver. In that letter, the prosecutor outlined the charges that defendant faced and recounted the circumstances of his arrest, highlighting the multiple controlled buys, the motor vehicle pursuit, the attempted spoliation of evidence thrown from the fleeing vehicle, and the evidence found in defendant's home. The prosecutor acknowledged that defendant had minimal prior contact with the criminal justice system consisting of a single pretrial diversion in 1990. After identifying and weighing the applicable aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1 (a) and (b),⁶ the prosecutor concluded that the interests of justice would not be served by waiving the mandatory minimum sentence.

Defendant moved before the trial court to overrule the State's rejection of his request for a Graves Act waiver. The State filed a letter brief amplifying the reasons for its decision. The trial court conducted oral argument on defendant's motion on December 20, 2019. On January 9, 2020, the trial court issued an order and written opinion overruling the prosecutor's decision and granting a waiver of the Graves Act mandatory sentence. The court found the State had patently and grossly abused its discretion in refusing to grant defendant's waiver request. The court thus concluded the interests of justice would not be served by imposing the forty-two-month mandatory minimum sentence.

In reaching this conclusion, the trial court found the State provided no support for its contention that defendant's lack of prior criminal history was outweighed by defendant's possession of a firearm in furtherance of his drug dealing. In discounting the weight the prosecutor accorded to the offense conduct, the court reasoned that the firearm was not on defendant's person but rather was found in his bedroom away from any CDS, and there was "no evidence to support the conclusion that [d]efendant possessed the firearm in further[ance] of his ‘drug dealing,’ as the State suggest[ed]." Additionally, the court reasoned that the firearm in question, a .22 Remington rifle with scope, was not the sort of firearm typically associated with drug dealing. The court also rejected the prosecutor's contention that defendant was in possession of the eighteen grams of cocaine discarded from the vehicle, reasoning that the driver was a known drug dealer and that only two grams of cocaine were found in defendant's home.

The trial court also disagreed with the prosecutor's contention there was a significant risk that defendant would re-offend, highlighting defendant lacked a significant criminal history and that he was forty-nine years old with a family, gainfully employed, and not designated as a "certain person."⁷

Furthermore, "[t]o aid in its analysis, the court look[ed] to [three] factually similar cases in which Graves waivers have been granted by the State in this county." The trial court stated, "[i]n consideration of the factual similarities of the above cases to the instant case as well as the Attorney General's Directive, which demands ‘statewide uniformity in the exercise of prosecutorial discretion in implementing’ the Act, the [c]ourt finds that the State's decision not to seek a Graves Waiver was arbitrary and capricious."

Considering both its review of the prosecutor's assessment of aggravating and mitigating circumstances and its comparison of the three other Middlesex County cases where the prosecutor granted Graves Act waivers, the trial court concluded that the prosecutor's decision to reject defendant's request for a Graves Act waiver was "grossly arbitrary, capricious, or an abuse of discretion."

On May 21, 2020, we granted the State's motion for leave to appeal and summarily vacated the trial court's order granting a Graves Act waiver. We remanded to the trial court for reconsideration "without reference to the anecdotal information about [the three other cases mentioned] in the trial court's original determination." Pursuant to our order, the trial court scheduled a reconsideration hearing for June 16, 2020.

On June 15, 2020, another panel of this court issued an opinion in State v. Andrews, 464 N.J. Super. 111, 234 A.3d 323 (App. Div. 2020). We held in Andrews that the comparative analysis the trial court conducted—examining past cases where the prosecutor had granted Graves Act waivers—is a legitimate component of the robust judicial review needed to ensure that a prosecutor's rejection of a Graves Act waiver does not " ‘demonstrate arbitrariness constituting an unconstitutional discrimination or denial of equal protection.’ " Id. at 120, 123, 234 A.3d 323 (quoting State v. Benjamin, 228 N.J. 358, 372, 157 A.3d 427 (2017) ).

On the same day we issued our opinion in Andrews, we vacated the portion of our remand order directing the trial court to reconsider its decision without reference to the three other Middlesex County cases.

At the reconsideration hearing on June 16, 2020, the trial court permitted the prosecutor an opportunity, through oral argument, to distinguish the three Middlesex County cases that had been cited by the court in its January 9 opinion. We summarize the prosecutor's arguments as follows:

In State v. Olivares, Indictment No. 16-06-1040, police executed a search warrant of the residence Olivares shared with two codefendants. Police found a handgun and a loaded 9mm extended magazine. They also found a 9mm bullet inside a chest, as well as heroin and drug paraphernalia. Olivares was known to be affiliated with a gang. He had one prior juvenile diversion and one prior municipal court conviction.

The prosecutor distinguished the present case by highlighting Olivares's willingness to accept responsibility for his conduct by...