Wrongly Denied Entrance into PTI Under the Graves Act

State v. Andrews:

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Defendant alleged that he was arrested during a traffic stop in which police found a weapon defendant had purchased after being shot at by his girlfriend’s ex-boyfriend. As a result, he was charged with second-degree weapons charges and fourth-degree possession of prohibited device. Defendant asked the prosecutor to file a Graves Act waiver, noting his lack of criminal history, lack of substance abuse issues, gainful employment, and need to support his family.

The Graves Act was enacted in 1981 as ‘a direct response to a substantial increase in violent crime in New Jersey.’ It is intended to ensure incarceration for those who arm themselves before going forth to commit crimes. State v. Nance, 228 N.J. 378, 390 (2017) (quoting State v. Des Marets, 92 N.J. 62, 68 (1983)). The Graves Act requires the imposition of a minimum term “fixed at one half of the sentence imposed by the court or [forty-two] months, whichever is greater, or [eighteen] months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.” N.J.S.A. 2C:43-6(c). Defendants may “appeal the denial of a waiver to the assignment judge upon a showing of patent and gross abuse of discretion by the prosecutor.” State v. Benjamin, 228 N.J. 358, 364 (2017). In reviewing a prosecutor’s decision on a defendant’s application for pre-trial intervention (PTI), our Supreme Court “defined the ‘patent and gross abuse of discretion’ standard” as requiring a party to “show that the prosecutor’s decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a ‘clear error in judgment.'” State v. Nwobu, 139 N.J. 236, 247 (1995) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

The prosecutor denied the request, noting that defendant had a prior juvenile charge for disorderly conduct along with three local ordinance violations and a disorderly persons offense as an adult. The prosecutor also noted that defendant illegally purchased a handgun in response to a shooting and loaded it with illegal body-piercing ammunition, rather than reporting the shooting to police. Defendant moved to overrule the state’s objections to his Graves Act waiver request. The trial court granted defendant’s motion, finding that the state might have overstated the extent of defendant’s criminal record and patently and grossly abused their discretion. The trial court noted that Graves Act waivers had been granted to other defendants with more serious criminal records. The court also accepted defendant’s assertion of self-defense in possessing the weapon. On appeal, the state argued that the trial court used the prosecutor’s office’s Graves Act records to conduct an improper comparative or proportionality analysis of other cases.

On appeal, the appellate court rejected the state’s arguments and affirmed the decision of the trial court, noting that case law merely precluded defendants from gaining access to Graves Act records for cases other than their own. The court held that nothing precluded trial courts from using those records as part of its analysis to determine whether Graves Act waivers were being evenly applied among offenders.

At Hark & Hark, we represent clients for appeals in Superior Court for issues like the present case pertaining to wrongly being denied entrance into PTI under the Graves Act due to the patent and gross abuse of discretion by the prosecutor. We work hard to ensure that our clients receive exceptional representation so that they receive the most favorable outcome as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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