State v. Benjamin Appellate Division Decision decided September 2015
Have you been charged with a gun offense in New Jersey? Did your attorney apply for a Graves Act waiver and appealed the denial to the County Assignment Judge? What is the process?
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
New Jersey gun offenses are defined in the New Jersey Graves act. Pursuant to NJSA 2C:39 and NJSA 2C:43–6.2 defendants who are charged with a gun possession offense have the ability to seek a waiver of the three (3) year mandatory minimum sentencing provisions. In order to do so, either prior to any plea or trial, a request/motion/application has to be made to the county prosecutor’s office (or Deputy Attorney General office) and heard by the Assignment Judge of each county. This case clearly outlined the procedure required and must be handled pre-trial. The other important part of this case outlines the requirement of the county prosecutor’s office which was not followed and as a result the case was remanded for further considerations.
Essentially, similar to the PTI denials, appeal and cases outlined in my prior blogs, the county prosecutors’ offices must show the process of review it conducted when denying the Graves Act waiver. (The denial of waiving the mandatory minimum 3-year state prison term without parol). The prosecutor’s office has to memorialized in writing its explanation and review of other cases, the defendant’s prior criminal history, the facts and circumstances of this case, and any other factor it considered when denying a defendant’s request for a waiver of the mandatory minimum three-year prison term without parole pursuant to Graves Act. In addition, the prosecutor’s office is required to maintain accumulative file of all request, all grants and denials of waiver applications, in order to present to the division of criminal justice on a quarterly basis a cumulative score card of its conduct vis-à-vis each individual defendant who makes a waiver request.
This enables any reviewing Court, similar to a PTI appeal by the trial judge, to make a determination if the prosecutor’s office acted in a arbitrary and capricious matter. Again, similar to a PTI appeal, the defendant my show by “clear and convincing evidence” the prosecutor acted in an arbitrator or capricious matter, discriminated against the defendant and violated the “interest of justice “standard assigned to all county prosecutors’ office is in the state. The hard part about this application process, given New Jersey’s new speedy trial enforcement and to hearing process (initial case disposition hearing, final case disposition hearing) is how much time the court is going to give the prosecutors’ offices to render a decision, and allow the defendant to seek the assignment judge review, without interrupting the court’s “Speedy Trial” schedule.
Jeffrey S. Hark, Esq.