When Seeking a Graves Act Waiver, Can I See the Prosecutor’s Files from Other Waivers?

State v. Kassey Benjamin (A-43-15) (076612) (April 5, 2017)

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

New Jersey’s Supreme Court recently decided a case in which the defendant brandished a firearm during a verbal altercation.  Although the gun was unloaded and the defendant did not point the gun at anyone, the defendant was still charged with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).

This offense is part of the Graves Act, which provides that for certain firearm-related offenses like this one, there is a mandatory three year minimum without parole, even if the mitigating sentencing factors substantially outweigh the aggravating factors.  The Graves Act 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.  When a prosecutor denies a Graves Act waiver request, the prosecutor must provide the defendant with a statement of reasons.

New Jersey Attorney General issued a directive “to ensure statewide uniformity in the exercise of prosecutorial discretion in implementing.” The Directive instructs a prosecutor contemplating a waiver to “consider all relevant circumstances concerning the offense conduct and the offender,” such as applicable aggravating and mitigating factors under N.J.S.A. 2C:44-1 and the likelihood of the defendant’s conviction at trial.

The defendant in this case sought a Graves Act waiver, which the prosecutor denied.  At the time of his offense, defendant was an eighteen-year-old full-time college student with no juvenile or adult criminal history. In an effort to challenge the waiver denial, 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.  The prosecutor declined to provide the requested files.

The defendant’s case made it all the way to the Supreme Court.  The Court ruled that the prosecutor had to provide a written statement of the reasons for the waiver denial.  However, the Court further ruled that the defendant was not entitled to the prosecutor’s prior Graves Act waiver documents when trying to prove the prosecutor abused his or her discretion by denying the request.  The Court concluded that a defendant must use independent evidence when making a case for prosecutorial abuse of discretion in Grave Act waiver denials.

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