State v. Benjamin – Graves Act Waiver Denials and Procedural Safeguards

The NJ Supreme Court Decision in State v. Benjamin – NJ Gun Charges

On April 5, 2017, in State v. Kassey Benjamin the New Jersey Supreme Court determined that there are sufficient procedural safeguards in place for defendants to appeal Graves Act waiver denials that that, in such cases, defendants are not entitled to discovery of the prosecution’s files regarding other Graves Act waiver cases. In this case, the defendant was charged with various firearms related offenses including second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), which is subject to the mandatory minimum sentences under the Graves Act. Because the defendant was a first-time offender, the defendant asked the prosecutor to submit a Graves Act waiver to the assignment judge, but the prosecutor denied the request in the interest of justice, but without providing a specific written statement of the refusal. After the prosecutor denied the defendant’s request for a Graves Act waiver, the defendant sought discovery of documents from recent cases in which the prosecutor had approved waivers for other first-time offenders in order to demonstrate the arbitrariness of the prosecutor’s decision. Eventually, the defendant pleaded guilty and the sentencing court imposed three years of imprisonment without parole.

Pursuant to N.J.S.A. 2C:43-6.2, on a motion by the prosecutor made to the assignment judge that the imposition of a mandatory minimum term of imprisonment under the Graves Act for a defendant who has not previously been convicted of a Graves Act offense does not serve the interests of justice, the assignment judge shall place the defendant on probation pursuant to N.J.S.A. 2C:43-2(b)(2) or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole. The sentencing court may also refer a case of a defendant who has not previously been convicted of an offense under that subsection to the assignment judge, with the approval of the prosecutor, if the sentencing court believes that the interests of justice would not be served by the imposition of a mandatory minimum term. In other words, an eligible defendant may be sentenced to either probation or a one-year custodial term during which he or she is disqualified from being paroled in one-of-two ways: either the prosecutor makes a motion to the assignment judge for a waiver of the mandatory minimum penalty, or the sentencing judge refers the matter to the assignment judge if the prosecutor approves the referral. But in either scenario, the prosecutor must approve the waiver before the assignment judge or his or her designee imposes one of the two reduced penalties.

As it relates to the prosecution’s determination of whether or not to approve a Graves Act waiver, the Attorney General’s Directive to Ensure Uniform Enforcement of the “Graves Act” (Oct. 23, 2008, as corrected Nov. 25, 2008) sets forth that prosecutors must memorialize in writing its analysis of all of the relevant aggravating and mitigating circumstances related to their reasons for denying a Graves Act waiver “as a means to ensure that waiver decisions are not disparate” and “consider all relevant circumstances concerning the offense conduct and the offender.” And pursuant to State v. Alvarez, 246 N.J. Super. 137, 149-49 (App. Div. 1991), if the prosecutor denies a defendant’s request for a Graves Act waiver, the defendant may appeal the denial to the assignment judge upon a showing of patent and gross abuse of discretion by the prosecutor. In other words, the defendant must demonstrate arbitrariness constituting an unconstitutional discrimination or denial of equal protection. Thus, the assignment judge has the ultimate authority to review the prosecutor’s Graves Act waiver decisions for arbitrariness and discrimination.

Generally, a defendant has a right to discovery of the evidence the State has gathered against a defendant in that particular case. However, there is no requirement to furnish a defendant with files or discovery from cases other than his or her own. In other words, there is no rule or case-law that mandates discovery to aid defendants in demonstrating arbitrary and capricious conduct or disparate treatment without a preliminary showing. Accordingly, in this case the Court held that defendants who are denied a Graves Act waiver are not entitled to discovery of the prosecution’s files for other cases in which Graves Act waivers have been granted to other defendants.

The consequences for weapons offenses such as the unlawful possession of weapon or the possession of a weapon for an unlawful purpose are severe. The bottom line is that if you are charged with Graves Act offenses in New Jersey, having an experienced and knowledgeable firearms defense attorney on your side can make all the difference to the outcome of your case. The weapons defense lawyers at the Tormey Law Firm have successfully defended clients charged with firearms offenses in criminal courts throughout New Jersey. If you are facing firearms charges in New Jersey, don’t hesitate to contact our offices for a free consultation at (201)-614-2474.