State V Benjamin Examines the Discretion of the Prosecutor When Denying Graves Act Waiver in Gun Cases

November 17, 2016

State v Benjamin is a currently pending decision by the New Jersey Supreme Court, in which the defendant was denied a Graves Act sentencing waiver that would have reduced his sentence by 30 months. Under normal circumstances, when convicted of unlawfully carrying a firearm in violation of N.J.S.A. 2C:35-5b, the mandatory minimum sentence is 42 months in state prison. However, some individuals may qualify for a waiver of this mandatory sentence and be sentenced to a 1 year mandatory minimum sentence or probation with the consent of the prosecutor.

The prosecutor may refuse to sign off on this waiver, also known as an “escape valve” for a number of reasons including a significant prior record, the nature and circumstances of the offense, or gang affiliation (to name a few). But what happens when the defendant feels that they do fall within a category of defendant that deserves this waiver or escape valve but is denied by the prosecutor’s office?

The defense has the burden of proof in making an “Alvarez motion” which is the name of the motion that must be made to the court in order for the defendant to be granted a waiver under the Graves Act minimum mandatory sentencing guidelines. The defense must demonstrate to the court “that the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the interest of justice warrant reference to the Assignment Judge for sentencing under the escape valve.” State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div.) (citation omitted), certif. denied, 146 N.J. 569 (1996).

Under the New Jersey Criminal Code, prosecutors may not systematically deny a defendant’s application for appeal on the grounds that sentencing carries a mandatory minimum or that defendant has been sentenced to a crime this is subject to the presumption of imprisonment. The defendant has the right to appeal any denial of this waiver to the assignment judge in the county that the case is being heard. The defendant has the right to request documentation from the prosecutor’s office pertaining to past decisions to either grant or deny a Graves Act waiver. Under existing case law, the prosecuting agency is required to maintain files on its denials and granting of waivers. This information will assist the Assignment Judge to determine whether the prosecutor arbitrarily and unconstitutionally discriminated against the defendant.

In State v Benjamin, the State refused to produce historical documentation regarding its office’s history of Graves Act waivers. They simply failed to maintain it.

The Appellate Division Held:

            “Here, without knowing what aggravating or mitigating factors the prosecutor considered (required by the Directive), without a written explanation for the denial (other than the opposition to the motion), and without provision of other waiver case files (required by the Directive), defendant was severely disadvantaged in meeting his Alvarez burden. Moreover, given these circumstances, no informed judicial determination of the motion could be made.”

There are many instances when a Graves Act waiver is denied with good reason.  Attorneys have handled many cases where the denial of a wavier under the Graves Act was inexplicable. In these cases, there is absolutely recourse and failure to explore these options by counsel may be grounds for appeal.

If you have been charged with a weapons offense and have questions about gun laws and sentencing guidelines, the attorneys at Lubiner, Schmidt and Palumbo are available. We are an experienced gun possession defense firm and have successfully defended clients charged with gun possession throughout the State.