Is It Appropriate for the Trial Judge to Sentence Probation on a Second Degree Grave’s Act Charge?

State v. Smith

Appellate Docket No.: A-2840-18T1

Decided August 17, 2020

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In a recent unpublished decision, the Appellate Division reviewed whether it was appropriate for the trial judge to sentence probation on a Second Degree Grave’s Act charge.

In State v. Smith, defendant was stopped by police for turning without using a turn signal.  His mother owned the car.  Defendant informed police at the traffic stop he had an outstanding traffic warrant and suspended license for failing to pay a traffic ticket. Defendant’s mother arrived on scene and consented to a search of the vehicle. The search uncovered a bag with six prednisone pills.  Defendant was arrested and a search yielded a defaced .25 caliber handgun concealed in his pant leg.  Defendant did not have a permit to possess or carry the handgun.

At the time of arrest, defendant was a 23 year old high school graduate with some community college education. He had a juvenile disorderly persons and a conditional discharge for marijuana possession in municipal court.

A grand jury charged defendant with: second-degree unlawful possession of a .25-caliber handgun, N.J.S.A. 2C:39-5(b)(1) (count one); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count two); fourth-degree unlawful purchase or acquisition of handgun ammunition, N.J.S.A. 2C:58-3.3(b) (count three); and fourth-degree unlawful possession of a prescription drug, prednisone, N.J.S.A. 2C:35- 10.5(e)(2) (count four). In addition, defendant was issued four motor vehicle summonses, including driving with a suspended license, N.J.S.A. 39:3-40.

Defendant’s counsel sent a letter seeking a Graves Act waiver.  This included letters from family members and friends in support of his application.  The prosecutor denied defendant’s request. Defendant appealed the denial to the trial court.  The trial court found that because there was no violence, no commission of another crime, and defendant’s lack of relevant criminal history, the judge overturned the prosecutor’s denial as arbitrary and capricious.

Defendant plead to unlawful possession of a handgun and driving with a suspended license.  In exchange, the State agreed to recommend an aggregate three year term with imprisonment with a one year period of parole ineligibility.

On sentencing, the trial judge found aggravating factor nine and mitigating factors one, two seven, eight, nine, and ten.  The Judge sentenced defendant to aggregate five-year probationary term.

The State appealed, arguing the trial judge did not provide an explanation under the “serious injustice” exception to the presumption of imprisonment for a second degree crime.  The Appellate Division agreed, and remanded for the judge to apply the appropriate findings of facts to the serious injustice exception.

Handgun and firearm offenses carry harsh penalties in New Jersey under the Graves Act.  One way to seek relief is to seek a waiver of the Graves Act, which allows the prosecutor to give a one year term of parole ineligibility unless the defendant is ineligible, a substantial likelihood that defendant is involved in organized crime, the prosecuting agency determines aggravating factors outweigh mitigating circumstances, or the reduction of sentence would undermine the another case. The prosecutor has great discretion in waiver applications.

Further, second degree and first degree crimes carry a presumption of incarceration that can be overcome, but it must be shown that a serious injustice would result if the defendant were to be incarcerated – a burden that is not easy.

If you have been charged with any Graves Act offense, first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. Failing to hire a defense attorney and putting your faith in a public defender could give you adverse results.

At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us immediately. At Hark & Hark, we represent clients for any case in any town in New Jersey including Booton, Butler, Chatham, Chester, Denville, Dover, East Hanover, Florham Park, Hanover, Harding, Jefferson, Kinnelon, Lincoln Park, Long Hill, Madison, Mendham, Mine Hill, Montville, Morris, Morris Plains, Morristown, Mount Arlington, Mount Olive, Mountain Lakes, Netcong, Parsippany-Troy Hills, Pequannock, Randolph, Riverdale, Rockaway, Roxbury, Victory Gardens, Washington, and Wharton.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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