                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                   State v. Kassey Benjamin (A-43-15) (076612)

Argued November 7, 2016 — Decided April 5, 2017

SOLOMON, J., writing for a majority of the Court.


         In this appeal, the Court determines whether a defendant seeking a waiver of the mandatory minimum
sentence under the Graves Act is entitled to discovery of the prosecutor’s files from cases in which other defendants
were granted waivers of the mandatory minimum penalty.

          In July 2011, defendant and a few friends stood in the “drive-thru” lane of a McDonald’s restaurant,
blocking cars from passing. A vehicle approached, and one of its occupants yelled for the men to move. A verbal
altercation ensued, and defendant brandished a firearm. Although defendant did not point the handgun at anyone, he
threatened to fire it. Defendant was subsequently arrested and charged with various firearm-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 sentence under the Graves Act.

          The Graves Act provides that, for some first-time offenders, the assignment judge, upon motion of the
prosecutor or request of the sentencing judge with the prosecutor’s approval, may waive the mandatory minimum
sentence and impose either probation or a reduced mandatory custodial term. N.J.S.A. 2C:43-6.2 (section 6.2). As a
first-time offender, defendant filed a motion asking the trial court to refer his case to the assignment judge. The
prosecutor opposed the motion as procedurally improper because under section 6.2 a sentencing court, not the trial
court, is authorized to refer the case to the assignment judge—and only with the prosecutor’s approval. The
prosecutor did not provide a written statement of reasons for his refusal to seek a waiver; the prosecutor only stated
that the State did not believe that the interests of justice dictated a waiver in defendant’s case.

          Around this time, 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. According to defendant, the only way to prove that the prosecutor
abused his discretion in denying a waiver was to compare the facts of his case to the facts of other similar cases in
which waivers were granted. The Middlesex County Prosecutor’s Office denied his request.

         Ultimately, defendant pled guilty to possession of a weapon for an unlawful purpose, and the State agreed
to recommend that he be sentenced as a third-degree offender. The court instructed the prosecutor to state on the
record the reasons for refusing to move for a waiver. The prosecutor responded that defendant’s actions went
beyond mere possession of a firearm and were exactly the type of conduct the Graves Act seeks to deter.

          Defendant appealed. The Appellate Division vacated defendant’s guilty plea in the interest of
“fundamental fairness,” 442 N.J. Super. 258, 260 (App. Div. 2015), and remanded the case for proceedings
consistent with State v. Alvarez, 246 N.J. Super. 137, 146-49 (App. Div. 1991), which allows defendants to appeal
the denial of a waiver to the assignment judge upon a showing of patent and gross abuse of discretion by the
prosecutor. Additionally, the panel interpreted the Attorney General’s Directive to Ensure Uniform Enforcement of
the “Graves Act” (Oct. 23, 2008, as corrected Nov. 25, 2008) (Directive) as requiring prosecutors to memorialize
their reasons for denying a Graves Act waiver to ensure that waiver decisions are not disparate. The panel instructed
the prosecutor on remand to give defendant a written statement of reasons for the denial and allowed defendant to
renew his request for discovery of files related to Graves Act waiver decisions by the prosecutor.

         The Court granted the State’s petition for certification limited to the issue of “whether a defendant seeking
a waiver of a mandatory sentence under the Graves Act has the right to discovery of the prosecutor’s files on
previous applications for Graves Act waivers.” 224 N.J. 119 (2016).

HELD: Defendants are not entitled to discovery of the prosecution’s files for cases in which Graves Act waivers
have been granted to other defendants.

                                                          1
1. Underlying the Graves Act is a legislative intent to deter individuals from committing firearm-related crimes by
calling for a mandatory minimum term of imprisonment for those convicted of Graves Act offenses. To mitigate the
undue severity that might accompany the otherwise automatic application of the mandatory minimum sentence
under the Graves Act, the Legislature included section 6.2, a limited exception that allows certain first-time
offenders to receive a reduced penalty if the imposition of a mandatory term would not serve the interests of justice.
Under that section, 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. (pp. 12-14)

2. In 2008, the New Jersey Attorney General issued a directive “to ensure statewide uniformity in the exercise of
prosecutorial discretion in implementing” the Graves Act. Directive, supra, at 10. Once a prosecutor moves for or
consents to a waiver, the Directive requires the prosecutor to specify which reduced penalty would best serve the
“interests of justice”: either a mandatory minimum one-year period of incarceration or a probationary term. Id. at
14. The Directive also contains specific record-keeping requirements, including the documentation of aggravating
and mitigating circumstances, case-specific memorializations of the reasons for the prosecutor’s decision, and the
maintenance of separate cumulative files, which facilitate periodic audits by the Attorney General. In addition, on a
quarterly basis, prosecutors must report to the Attorney General the number of pre- and post-indictment pleas in
which the prosecutor moved for, or consented to, a Graves Act waiver. (pp. 14-16)

3. In State v. Lagares, 127 N.J. 20 (1992), and State v. Vasquez, 129 N.J. 189 (1992), the Court upheld the statutory
delegation of sentencing discretion to prosecutors to waive the Comprehensive Drug Reform Act’s mandatory
minimum term of incarceration, provided that (1) the Attorney General promulgated guidelines to help prosecutors
uniformly apply the statute; (2) prosecutors stated on the record the reasons supporting their decision in order to
enable judicial review and ensure compliance with the guidelines; and (3) a court could review and overturn the
prosecutor’s decision if a defendant demonstrates that the prosecutor acted arbitrarily and capriciously. (pp. 16-18)

4. The Graves Act provides the procedural safeguards required by this Court in Lagares and Vasquez. First, written
guidelines exist to channel prosecutorial discretion. The Directive instructs prosecutors how to uniformly apply the
Graves Act and section 6.2. Second, the Directive requires prosecutors to document their analysis of all the relevant
aggravating and mitigating circumstances. Third, since the Appellate Division’s 1991 decision in Alvarez,
defendants have been able to seek judicial review of waiver decisions. The assignment judge retains “ultimate
authority” to review the prosecutor’s waiver decisions for arbitrariness and discrimination. Accordingly, the Graves
Act affords meaningful judicial review of a prosecutor’s decision to deny a Graves Act waiver. (pp. 18-20)

5. All case-specific files should contain a statement of reasons which the assignment judge may consider.
Conversely, additional case-specific information is contained in case and cumulative files for administrative reasons
because those files function as internal documents. No case-specific information beyond a statement of reasons was
intended to be accessed by a Graves Act defendant seeking to demonstrate that the prosecutor acted arbitrarily. The
Court has never mandated discovery to aid defendants in demonstrating arbitrary and capricious conduct or disparate
treatment without a preliminary showing. To the contrary, it has repeatedly stated that defendants must support their
claims by “independently secured evidence.” State v. Sutton, 80 N.J. 110, 120 (1979). (pp. 20-22)

6. Defendants are not entitled to discovery of a prosecutor’s case-specific memorializations and cumulative files
when challenging the denial of a Graves Act waiver in an Alvarez motion because there are sufficient procedural
safeguards in place for meaningful judicial review of a prosecutor’s waiver decision. (pp. 22-23)

         The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

         JUSTICE ALBIN, DISSENTING, expresses the view that the adversarial process has a role to play in
ensuring that waiver decisions do not undermine the goal of uniformity in sentencing and concludes that the right to
challenge unconstitutional discrimination or denial of equal protection in Graves Act waiver cases is a hollow right
if defendants are denied basic information necessary to assert that right.

         CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
and TIMPONE join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN filed a separate, dissenting
opinion.




                                                          2
                                      SUPREME COURT OF NEW JERSEY
                                         A-43 September Term 2015
                                                           076612

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

KASSEY BENJAMIN,

    Defendant-Respondent.


         Argued November 7, 2016 – Decided April 5, 2017

         On certification to the Superior Court,
         Appellate Division, whose opinion is
         reported at 442 N.J. Super. 258 (App. Div.
         2015)

         Carol M. Henderson, Assistant Attorney
         General, argued the cause for appellant
         (Christopher S. Porrino, Attorney General of
         New Jersey, attorney).

         Daniel S. Rockoff, Assistant Deputy Public
         Defender, argued the cause for respondent
         (Joseph E. Krakora, Public Defender,
         attorney).

         Alexander R. Shalom argued the cause for
         amicus curiae American Civil Liberties Union
         of New Jersey (Edward L. Barocas, Legal
         Director, attorney; Mr. Shalom, Mr. Barocas,
         and Jeanne M. LoCicero, on the letter
         brief).


    JUSTICE SOLOMON delivered the opinion of the Court.

    We must determine whether a defendant seeking a waiver of

the mandatory minimum sentence under the Graves Act is entitled


                               1
to discovery of the prosecutor’s files from cases in which other

defendants were granted waivers of the mandatory minimum

penalty.

     The Graves Act prescribes a minimum term of incarceration

for certain firearm-related offenses.    For some first-time

offenders, the 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 (section

6.2).

     In this case, defendant was charged with various firearm-

related offenses under the Graves Act.    After the prosecutor

denied defendant’s request for a waiver of the mandatory

penalty, defendant sought discovery of documents from recent

cases in which the prosecutor had approved waivers for other

first-time offenders.   According to defendant, this would allow

him to demonstrate the arbitrariness of the prosecutor’s

decision.   The prosecutor declined to provide the requested

files.

     Ultimately, defendant pled guilty to possession of a weapon

for an unlawful purpose.   The Appellate Division vacated

defendant’s conviction, remanded the matter to the trial court,

ordered the prosecutor to provide defendant with a written

                                 2
statement of reasons for denying the waiver, and allowed

defendant to renew his request for discovery of previously

granted waivers.   We granted certification limited to the

discovery issue.

    We agree with the Appellate Division that, when denying a

Graves Act waiver, the prosecutor must provide the defendant

with a statement of reasons.    However, we hold that defendants

are not entitled to discovery of the prosecution’s files for

cases in which Graves Act waivers have been granted to other

defendants.   We therefore affirm but modify the judgment of the

Appellate Division.

                                  I.

    The record reveals the following facts and procedural

history.   In July 2011, defendant and a few friends stood in the

“drive-thru” lane of a McDonald’s restaurant in Edison, New

Jersey, blocking cars from passing.     A vehicle approached, and

one of its occupants yelled for the men to move.     A verbal

altercation ensued, and defendant brandished a firearm.

Although defendant did not point the handgun at anyone, he

threatened to fire it.

    Defendant and his friends ended the confrontation by

leaving the McDonald’s.   Subsequently, the occupants of the

vehicle called the police.     Responding officers observed

defendant walking with a group of people in close proximity to

                                  3
the McDonald’s.   Because defendant was carrying a gun and

matched the description of one of the suspects, officers

approached and ordered defendant to drop the weapon.   Defendant

threw the handgun behind a nearby motor home, but officers were

able to recover a 32-caliber revolver after they placed

defendant under arrest.   The weapon was unloaded and had the

serial number scratched off.

     Defendant was charged with various firearm-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 sentence under the Graves Act.   When defendant

was charged in 2011, the mandatory minimum term was three years.1

At the time of his offense, defendant was an eighteen-year-old

full-time college student with no juvenile or adult criminal

history.   Thus, as a first-time offender, defendant was eligible

for a waiver of the mandatory term of incarceration under

section 6.2.

     Initially, defense counsel tried to persuade the prosecutor

to file a motion recommending that the assignment judge waive

the three-year mandatory minimum sentence, but the prosecutor

did “not believe that the interests of justice dictate[d] a



1 An amendment to the Graves Act was adopted in August 2013,
increasing the mandatory minimum sentence from three years to
forty-two months. L. 2013, c. 113, § 2 (codified at N.J.S.A.
2C:43-6).
                                 4
waiver” in defendant’s case.   Defendant then filed a motion

asking the trial court to refer his case to the assignment judge

with the hope that the prosecutor would consent to a waiver.

Attached to his motion were numerous documents attesting to

defendant’s moral character and academic success.

    The prosecutor opposed defendant’s motion as procedurally

improper because under section 6.2 a sentencing court, not the

trial court, is authorized to refer the case to the assignment

judge.   The prosecutor also argued that the matter could be

referred to the assignment judge only with the prosecutor’s

approval.   Up until that point, the prosecutor had not provided

a written statement of reasons for his refusal to seek a waiver;

the prosecutor only stated, “[a]s has been indicated in the

past, the State does not believe that the interests of justice

dictate a waiver . . . in this case.”

    Around this time, 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.   According to defendant, the only way to prove

that the prosecutor abused his discretion in denying a waiver

was to compare the facts of defendant’s case to the facts of

other similar cases in which waivers were granted.   The

Middlesex County Prosecutor’s Office denied his request, stating

                                 5
that there was “no single document offering a list of defendants

who fall into this category and, under OPRA, we are not

permitted to conduct research for requestors, or create

documents that do not already exist.”

    After his failed attempts to obtain the prosecutor’s

consent to a waiver, defendant pled guilty to second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a); the State agreed to recommend that defendant be sentenced

as a third-degree offender.    At sentencing, defense counsel

informed the court that the OPRA request to obtain information

about other Graves Act waiver cases was unsuccessful.     The court

instructed the prosecutor to state on the record the reasons for

refusing to move for a waiver.   The prosecutor responded that

his decision was “anything but arbitrary and capricious” because

defendant’s actions went beyond mere possession of a firearm,

and that brandishing a weapon during an altercation is exactly

the type of conduct the Graves Act seeks to deter.

    The court acknowledged that this case differs from the

“[w]aiver cases that the [c]ourt normally gets,” where a person

from out-of-state is caught in New Jersey carrying a firearm

that he or she legally owns.   The sentencing judge recognized

that brandishing a gun was merely a “very silly, stupid mistake”

on defendant’s part, but concluded that the prosecutor’s

decision was not “arbitrary and capricious, or even quite

                                 6
frankly, respectfully, in error” because the firearm had been

brandished.

    The court identified the “clearly significant mitigating

factors here,” such as defendant’s family status, young age, and

lack of a prior criminal record.    “[R]egardless of the fact that

the mitigating factors substantially outweigh . . . any

aggravating factors,” the court sentenced defendant in

accordance with the plea agreement to three years’ imprisonment

with a mandatory three-year parole disqualifier pursuant to the

Graves Act.

    The Appellate Division vacated defendant’s guilty plea in

the interest of “fundamental fairness.”    State v. Benjamin, 442

N.J. Super. 258, 260 (App. Div. 2015).    The panel remanded the

case for proceedings consistent with State v. Alvarez, 246 N.J.

Super. 137, 146-49 (App. Div. 1991), which allows defendants to

appeal the denial of a waiver to the assignment judge upon a

showing of patent and gross abuse of discretion by the

prosecutor.   Benjamin, supra, 442 N.J. Super. at 264-67.

    Additionally, the appellate panel interpreted the

Attorney General’s Directive to Ensure Uniform Enforcement of

the “Graves Act” (Oct. 23, 2008, as corrected Nov. 25, 2008)

(Directive) as requiring prosecutors to memorialize their

reasons for denying a Graves Act waiver “as a means to ensure



                                7
that waiver decisions are not disparate.”         Benjamin, supra, 442

N.J. Super. at 266.    Thus, the panel observed that,

            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.

            [Ibid.]

Accordingly, the panel instructed the prosecutor on remand to

give defendant a written statement of reasons for the denial and

allowed defendant to renew his request for discovery of files

related to Graves Act waiver decisions by the prosecutor.         Id.

at 267.

    After the Appellate Division’s ruling, the Attorney General

superseded the Middlesex County Prosecutor and petitioned this

Court for review.     We granted certification limited to the issue

of “whether a defendant seeking a waiver of a mandatory sentence

under the Graves Act has the right to discovery of the

prosecutor’s files on previous applications for Graves Act

waivers.”    224 N.J. 119 (2016).       Soon thereafter, the Office of

the Public Defender assumed representation of defendant.         We

granted amicus curiae status to the American Civil Liberties

Union of New Jersey (ACLU).


                                    8
                                II.

                                A.

     In the State’s view, uniform application of the Graves Act

does not require identical application to all defendants.     The

State warns that allowing discovery of other waiver cases would

inappropriately shift the focus of judicial review from

individual assessments of defendants to comparisons with other

defendants in prior waiver cases.

     The State concedes that the prosecutor should provide

defendants with a written statement of reasons at the time a

Graves Act waiver is denied.   The State argues, however, that

defendants are not entitled to “forage” through unrelated files

to substantiate an allegation of disparate treatment by the

prosecutor.   The State asserts that permitting discovery of such

files would require prosecutors to turn over confidential work

product and sensitive information pertaining to trial that would

violate the privacy rights of other defendants.   Relatedly, the

State notes that criminal discovery materials, such as pre-trial

intervention (PTI)2 records, are excluded from public access.

     The State maintains that numerous safeguards exist to

ensure fair application of section 6.2, such as the Directive,



2 PTI is a diversionary program that provides qualifying criminal
defendants with rehabilitative services while sparing them both
the stigma of prosecution and the consequences of conviction.
N.J.S.A. 2C:43-12.
                                 9
which contains standards and procedures to guide waiver

decisions and, according to the State, sufficiently cabins

prosecutorial discretion.   Finally, the State stresses that

because all waiver applications, including the one in this case,

pass through the assignment judge, that judge is in the “best

position” to identify discriminatory practices.

                                B.

     Defendant claims that a written statement of reasons

explaining the prosecutor’s denial of a Graves Act waiver is

insufficient on its own to allow defendant to meet his Alvarez

burden.   Defendant asserts that the only way to determine

whether the relevant sentencing factors were appropriately

considered by the prosecutor, without discrimination, would be

to compare all cases in which a waiver was granted.   Defendant

further cautions that to require the assignment judge or his or

her designee3 to rely solely on experience to identify

discriminatory conduct, rather than on cases for comparison,

would deprive the Appellate Division of a sufficient record.

     Because sentencing is a judicial function, defendant argues

that judicial oversight of Graves Act waiver decisions is




3 Assignment judges may delegate the responsibility of hearing
Graves Act waiver motions to the Criminal Presiding Judge.
Administrative Office of the Courts, Memorandum, Motions in
Graves Act Cases – Delegable by Assignment Judge to Criminal
Presiding Judge (Nov. 21, 2008); see also R. 1:33-6(a).
                                10
required.   Defendant highlights this Court’s precedent requiring

meaningful judicial review of prosecutorial decisions that

result in mandatory sentences.   Defendant therefore asks the

Court to require:    (1) prosecutors to supply defendants with the

case-specific memorializations described in the Directive as an

explanation of their Graves Act waiver decisions; (2)

prosecutors to provide access to the memorializations of their

waiver decisions in the cumulative files that are required by

the Directive; and (3) the Attorney General to make relevant

statewide records available, in order to prevent inter-county

disparities.

                                 C.

    Amicus ACLU concedes that in some instances, a statement of

reasons alone is sufficient to demonstrate a prosecutor’s

arbitrary conduct.   Nonetheless, the ACLU maintains that

discovery is often necessary to demonstrate arbitrary or

discriminatory Graves Act waiver decisions.   The ACLU suggests

that, in addition to the statement of reasons in a defendant’s

own case, a defendant should receive police reports and the

prosecutor’s statements of reasons from cases in which the

prosecutor approved Graves Act waivers.    Such information, the

ACLU asserts, will enable defendants and judges to determine how

prosecutors identify and balance the aggravating and mitigating

factors with different defendants.    Echoing defendant, the ACLU

                                 11
stresses that the Directive requires prosecutors to maintain a

cumulative file of Graves Act waiver cases, which defendants

should be able to access, because the responsibility to “ferret

out” arbitrary or discriminatory action should not belong to the

assignment judge or designee.

                                III.

                                A.

    “The [Graves] Act makes the use or possession of a firearm

during the commission, attempted commission, or flight from the

commission of certain designated offenses a sentencing factor

that triggers the imposition of a mandatory term of

imprisonment.”   State v. Franklin, 184 N.J. 516, 529 (2005).

For example, at the time defendant was charged, the Graves Act

required that those convicted of possession of a weapon for an

unlawful purpose serve a minimum custodial sentence “at, or

between, one-third and one-half of the sentence imposed by the

court or three years, whichever is greater.”   N.J.S.A. 2C:43-

6(c) (2008).

    Underlying this statute is a legislative intent to deter

individuals from committing firearm-related crimes by calling

for a mandatory minimum term of imprisonment for those convicted

of Graves Act offenses.   State v. Des Marets, 92 N.J. 62, 71

(1983).   Thus, even if the trial court finds that the mitigating

factors of N.J.S.A. 2C:44-1(b) outweigh the aggravating factors

                                12
listed in subsection (a) of that statute, the court must still

impose the minimum term of incarceration.      State v. Towey, 114

N.J. 69, 82 (1989).

    To mitigate the undue severity that might accompany the

otherwise automatic application of the mandatory minimum

sentence under the Graves Act, the Legislature included section

6.2, a limited exception that allows certain first-time

offenders to receive a reduced penalty if the imposition of a

mandatory term would not serve the interests of justice.

Section 6.2 provides:

         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.

         [N.J.S.A. 2C:43-6.2.]

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.      Ibid.   The relief that section

                                 13
6.2 affords can arise in 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.

Ibid.    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.           Ibid.

                                         B.

      In 2008, the New Jersey Attorney General issued a directive

“to ensure statewide uniformity in the exercise of prosecutorial

discretion in implementing” the Graves Act.           Directive, supra,

at 10.   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.            Id. at

12.   Once a prosecutor moves for or consents to a waiver, the

Directive requires the prosecutor to specify which reduced

penalty would best serve the “interests of justice”:            either a

mandatory minimum one-year period of incarceration or a

probationary term.    Id. at 14.4    If a prosecutor seeks probation,



4 The prosecutor’s recommendation is not binding upon the court:
“[a]lthough the prosecutor . . . may argue in favor of a
probationary term or a custodial sentence with a one-year period
of ineligibility, nothing in the statute suggests that the
                                    14
he or she must explain why imposition of a one-year custodial

term would constitute a serious injustice.   Id. at 13-14.

    The Directive also contains specific record-keeping

requirements.

         The prosecuting agency shall document in the
         case files its analysis of all of the relevant
         aggravating and mitigating circumstances,
         whether or not the agency moves for or
         approves a waiver or reduction pursuant to
         N.J.S.A. 2C:43-6.2.    Furthermore, where the
         prosecuting agency is seeking or approving a
         probationary sentence, the memorialization of
         reasons must explain why the imposition of a
         one-year term of imprisonment and parole
         ineligibility would constitute a serious
         injustice that overrides the need to deter
         others from unlawfully possessing firearms. A
         copy of all case-specific memorializations
         required by this Section shall also be
         maintained in a separate cumulative file in
         order to facilitate such audits as the
         Attorney General may from time-to-time direct
         to    ensure    the    proper   and    uniform
         implementation of this Directive.     The case
         file and cumulative audit file shall also
         document the information sources consulted to
         determine whether the defendant might be
         subject to the aggravating sentencing factor
         set forth in N.J.S.A. 2C:44-1a(5) (substantial
         likelihood that the defendant is involved in
         organized criminal activity).

         [Ibid.]




assignment judge or designee must accept the prosecutor’s
recommendation.” State v. Nance, ___ N.J. ___, ___ (2017) (slip
op. at 17). Indeed, “the authority to elect one of the two
sentences set forth in section 6.2 is clearly vested in the
assignment judge, or, by administrative directive, the presiding
judge acting as the assignment judge’s designee.” Ibid.
                               15
Therefore, whether or not a prosecutor moves for a waiver, his

or her analysis of all aggravating and mitigating factors is

recorded.   Id. at 13.    The cumulative file facilitates periodic

audits by the Attorney General to “ensure the proper and uniform

implementation of this Directive.”     Id. at 14.   Finally, on a

quarterly basis, prosecutors must report to the Attorney General

the number of pre- and post-indictment pleas in which the

prosecutor moved for, or consented to, a Graves Act waiver.

Ibid.

                                 IV.

    Before addressing the issue raised in this appeal, we must

first determine whether sufficient procedural safeguards are in

place to protect a defendant’s right to challenge the denial of

a Graves Act waiver.

                                  A.

    Our analysis is aided by examining challenges to the

statutory delegation of sentencing discretion to prosecutors in

the Comprehensive Drug Reform Act (CDRA), N.J.S.A. 2C:35-1 to

36A-1.   The CDRA was enacted to aggressively battle drug abuse

and drug-related crime.    N.J.S.A. 2C:35-1.1(c).   Like the Graves

Act, the CDRA was designed to “provide for the strict

punishment, deterrence and incapacitation of the most culpable

and dangerous drug offenders,” ibid., and therefore mandates

parole ineligibility periods for certain drug-related crimes.

                                  16
     In 1992, this Court decided State v. Lagares, which

involved the constitutionality of the prosecutor’s power under

N.J.S.A. 2C:43-6(f) to seek a mandatory extended term5 for repeat

offenders of the CDRA, even though “extended terms are

ordinarily discretionary with the court.”   127 N.J. 20, 23

(1992).   In the same year, this Court also decided State v.

Vasquez, where the defendant challenged N.J.S.A. 2C:35-12, which

vests the prosecutor with discretion to waive the CDRA’s

mandatory minimum term of incarceration through a negotiated

plea or post-conviction agreement.   129 N.J. 189, 196 (1992).

In both cases, we upheld the statutory delegation of sentencing

discretion to prosecutors, provided that (1) the Attorney

General promulgated guidelines to help prosecutors uniformly

apply the statute; (2) prosecutors stated on the record the

reasons supporting their decision in order to enable judicial

review and ensure compliance with the guidelines; and (3) a

court could review and overturn the prosecutor’s decision if a

defendant demonstrates that the prosecutor acted arbitrarily and




5 New Jersey’s Criminal Code “provides for ordinary sentences []
as well as extended-term sentences that carry greater punishment
for the same crime.” State v. Robinson, 217 N.J. 594, 606-07
(2014) (citing State v. Pierce, 188 N.J. 155, 161 (2006)). For
example, a second-time Graves Act offender may face an extended
term between five and ten years, if convicted of a third-degree
offense; ten and twenty years, if convicted of a second-degree
offense; or thirty years and life imprisonment, if convicted of
a first-degree offense. N.J.S.A. 2C:43-7.
                                17
capriciously.   Lagares, supra, 127 N.J. at 28-33; Vasquez,

supra, 129 N.J. at 195-96; see also State v. Brimage, 153 N.J.

1, 24 (1997) (rejecting Attorney General’s guidelines for

formalizing disparity throughout state).

                                 B.

    We now consider whether the Graves Act provides the

procedural safeguards required by this Court in Lagares and

Vasquez.

    First, written guidelines exist to channel prosecutorial

discretion.    See Vasquez, supra, 129 N.J. at 196.   The Directive

instructs prosecutors how to uniformly apply the Graves Act and

section 6.2.    Directive, supra, at 3.   Not only does the

Directive set forth general rules for prosecutors when

considering charges, dismissals, and extended terms, id. at 5-7,

but it also provides clear parameters for prosecutors

contemplating a waiver, id. at 10-15.     The Directive ensures

even application throughout the state by requiring all

prosecutors to consider the same factors and adhere to the same

plea procedures.   While the possibility exists that, in similar

circumstances, prosecutors in different counties may reach

different Graves Act waiver conclusions, we have recognized that

some disparity in sentencing is inevitable.     Brimage, supra, 153

N.J. at 22.



                                 18
    Second, the Directive requires prosecutors to “document in

the case file [their] analysis of all the relevant aggravating

and mitigating circumstances,” even if a Graves Act waiver is

not being sought.   Directive, supra, at 13.   The Appellate

Division concluded in this case that under this provision of the

Directive, the prosecutor was obligated to provide defendant

with “written reasons for withholding [his] consent to a waiver”

at the time the prosecutor made that decision.   Benjamin, supra,

442 N.J. Super. at 265.   The State concedes that this is

appropriate to facilitate judicial review for the arbitrary or

discriminatory exercise of prosecutorial discretion.

    Third, since the Appellate Division’s 1991 decision in

Alvarez, upholding section 6.2, defendants have been able to

seek judicial review of prosecutors’ waiver decisions.      In order

to do so, a defendant must, by motion to the assignment judge,

demonstrate “arbitrariness constituting an unconstitutional

discrimination or denial of equal protection” in the

prosecutor’s decision.    Alvarez, supra, 246 N.J. Super. at 148;

Watson, supra, 346 N.J. Super. at 535 (explaining defendant must

show “prosecutor’s refusal [was] a patent and gross abuse of

discretion”).   Once a defendant makes this threshold showing,

the defendant can obtain a hearing to review the prosecutor’s

decision if the assignment judge concludes that the “interests

of justice” so require.   Alvarez, supra, 246 N.J. Super. at 148-

                                 19
49.   This judicial backstop ensures that prosecutorial

discretion is not unchecked because the assignment judge retains

“ultimate authority” to review the prosecutor’s waiver decisions

for arbitrariness and discrimination.   Id. at 146-47.

      Therefore, prosecutors are guided by standards, inform

defendants of the basis for their decisions, and are subject to

judicial oversight.   Accordingly, we conclude that the Graves

Act affords meaningful judicial review of a prosecutor’s

decision to deny a Graves Act waiver.

                                V.

      We now turn to the question posed in this appeal:   whether

defendants are entitled to discovery of the Directive-mandated

“case-specific memorializations” and cumulative files of

prosecutorial decisions to recommend waivers for cases other

than their own.

      Defendant and the ACLU submit that the only way for

defendant to know if the prosecutor fairly ascribed and weighed

the applicable aggravating and mitigating factors is to compare

defendant’s case to those of similarly situated defendants.

Defendant claims that this information is contained in the

“case-specific memorializations” and “cumulative files.”      See

Directive, supra, at 13-14.

      All case-specific files should contain a statement of

reasons which, upon a defendant’s Alvarez motion, the assignment

                                20
judge may consider in assessing the prosecutor’s conduct, as the

statement will show the prosecutor’s reasons not to grant a

waiver for a particular defendant.   Conversely, additional case-

specific information is contained in case and cumulative files

for administrative reasons because those files function as

internal documents, the primary purpose of which is to allow

prosecutors to assess the case and the Attorney General to

conduct audits to ensure compliance with the Directive.       Id. at

14.   Due to the administrative nature of the case and cumulative

files, we do not find that any case-specific information beyond

a statement of reasons was intended to be accessed by a Graves

Act defendant seeking to demonstrate that the prosecutor acted

arbitrarily.

      Moreover, this Court has never mandated discovery to aid

defendants in demonstrating arbitrary and capricious conduct or

disparate treatment without a preliminary showing.   As stated in

Alvarez, supra, a defendant may obtain a hearing to review the

prosecutor’s decision only after he or she has demonstrated in a

motion that the prosecutor abused his or her discretion.      246

N.J. Super. at 148-49.   In State v. Sutton, when a defendant

challenged the prosecutor’s denial of PTI, this Court held that

the defendant could not prevail merely because she could show

that the prosecutor approved PTI for others “charged with

similar offenses.”   80 N.J. 110, 120 (1979).   Rather, the

                                21
defendant needed to prove that she received “less favorable

treatment than identically situated individuals.”    Ibid.    The

Court remanded the case to give the defendant the opportunity to

show that the prosecutor relied on “irrelevant or inappropriate

factors,” thereby abusing his discretion in rejecting the

defendant’s PTI application.    Id. at 119, 121.   Importantly, the

Court clarified that its “holding . . . should not be read as

granting PTI applicants a license to subpoena prosecutorial

files.”   Id. at 120.   Nor would this Court allow defendants to

“interrogate prosecutors under oath” to substantiate allegations

of “less favorable treatment than other similarly situated

individuals.”   Ibid.   To the contrary, we repeatedly stated that

defendants must support their claims by “independently secured

evidence.”   Ibid.

    While Rule 3:13-3 provides that “a defendant has a right to

automatic and broad discovery of the evidence the State has

gathered in support of its charges,” State v. Scoles, 214 N.J.

236, 252 (2013), it does not require the prosecutor to furnish a

defendant with files from cases other than his or her own.        See

R. 3:13-3; cf. State v. Hernandez, 225 N.J. 451 (2016).      We

therefore conclude that defendants are not entitled to discovery

of a prosecutor’s case-specific memorializations and cumulative

files when challenging the denial of a Graves Act waiver in an

Alvarez motion because there are sufficient procedural

                                 22
safeguards in place for meaningful judicial review of a

prosecutor’s waiver decision.

                                VI.

    For the reasons set forth above, the judgment of the

Appellate Division is affirmed as modified.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.
JUSTICE ALBIN filed a separate, dissenting opinion.




                                23
                                        SUPREME COURT OF NEW JERSEY
                                           A-43 September Term 2015
                                                             076612

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

          v.

KASSEY BENJAMIN,

    Defendant-Respondent.

    JUSTICE ALBIN dissenting.

    Defendants convicted of Graves Act offenses are subject to

mandatory-minimum periods of incarceration.    N.J.S.A. 2C:43-

6(c).   Under the Graves Act, the prosecutor is vested with the

statutory authority to file a motion with the Assignment Judge

to waive the imposition of the mandatory-minimum sentence.

N.J.S.A. 2C:43-6.2.    Prosecutors may not exercise their waiver

authority in a way that results in similarly situated defendants

receiving disparate sentences.    See State v. Alvarez, 246 N.J.

Super. 137, 148-49 (App. Div. 1991).   The adversarial process

has a role to play in checking the abuse of prosecutorial

discretion and ensuring that waiver decisions do not undermine

the goal of uniformity in sentencing, which is the primary

objective of the Code of Criminal Justice.    That role, however,

cannot be fulfilled if the defense is denied relevant discovery.

    The majority affords defendants the right to a statement of


                                  1
reasons when the prosecutor denies a Graves Act waiver.     Yet,

the majority denies defendants the very information necessary to

establish discriminatory or unequal treatment -- access to the

reasons given for the grant or denial of Graves Act waivers in

other cases.     Granting that minimal discovery right would not

cause undue administrative inconvenience, but it would place a

check on the potential abuse of the waiver process and promote

greater consistency in sentencing.

    Because the majority’s denial of this limited discovery

right disserves the goals of uniformity in sentencing, I

respectfully dissent.

                                   I.

    The majority acknowledges that a prosecutor who denies a

defendant a waiver from the mandatory sentencing provisions of

the Graves Act must provide a statement of reasons explaining

that decision.    In addition, the case-specific reasons for the

prosecutor’s decision are kept in a centralized file pursuant to

an Attorney General Directive.     Directive to Ensure Uniform

Enforcement of the “Graves Act” 13-14 (Oct. 23, 2008, as

corrected Nov. 25, 2008).     Each county prosecutor is required to

maintain a “separate cumulative file” so that the Attorney

General can “ensure the proper and uniform implementation of

this Directive.”     Id. at 14.   This procedure advances the goal

of “statewide uniformity in the exercise of prosecutorial

                                   2
discretion in implementing” the Graves Act.     Id. at 10.

    A defendant can mount a successful challenge to the denial

of a waiver from a mandatory Graves Act sentence only if it can

be shown that the prosecutor’s decision was arbitrary -- that

is, the decision amounts to “an unconstitutional discrimination

or denial of equal protection constituting a ‘manifest

injustice.’”   Alvarez, supra, 246 N.J. Super. at 148.       The

prosecutor’s separate cumulative file, detailing the case-

specific reasons for waiver denials, contains the information

that will reveal whether a defendant’s treatment and sentence is

so disparate from that of other similarly situated defendants

that it constitutes “unconstitutional discrimination or denial

of equal protection.”   See ibid.    Although the Attorney General

can audit the separate cumulative file, the defendant -- who

will suffer the consequences of discriminatory treatment --

cannot.

    I see no reason why a defendant should not have access to

the separate cumulative file (with the redaction of any

confidential information) or, at the very least, to the

statements of reasons given to the Assignment Judge for granting

or denying waivers.   The statements of reasons provided to the

Assignment Judge are public documents.    In our adversarial

system, the defendant is not required to trust the prosecutor to

protect the defendant’s interests and may insist on

                                 3
verification.    Defendants are not expected to rely on the

kindness of the prosecutor.     Defendants have a right to

challenge in a meaningful way a claimed abuse of a waiver

decision.

    Permitting the discovery of the prosecutor’s statements of

reasons for denying Graves Act waivers is consonant with the

Code of Criminal Justice.     “The dominant, if not paramount, goal

of the Code is uniformity in sentencing.”     State v. Natale, 184

N.J. 458, 485 (2005) (quoting State v. Kromphold, 162 N.J. 345,

352 (2000)).    The Code recognizes “that similarly situated

defendants [should] not receive dissimilar sentences.”       Ibid.

Given the broad sentencing discretion granted to prosecutors in

Graves Act cases -- the discretion to waive the imposition of

the mandatory-minimum term of imprisonment pursuant to N.J.S.A.

2C:43-6.2 -- the presence of checks becomes all the more

important.

    Access to statements of reasons given in other Graves Act

waiver cases may assure defendants that they have been treated

fairly.   And, in those instances where they believe they have

not, they will have relevant information to press their cases of

unequal or discriminatory treatment.

    Further, there is no good reason to deny defendants access

to statements of reasons filed with the Assignment Judge in

other waiver cases, whether those statements are in the

                                   4
prosecutor’s cumulative file or in the judiciary’s hands.

Nothing prevents the judiciary from maintaining those statements

in a central file so that historical information will be

available to prosecutors, defendants, and assignment judges.     I

agree with the majority that defendants should not have free

rein to forage through files of other cases for irrelevant

information, even in light of the broad discovery available in

criminal cases.   See State v. Hernandez, 225 N.J. 451, 463

(2016) (“However expansive our discovery rule and jurisprudence

may be, they do not sanction rummaging through irrelevant

evidence.”).   But defendant’s discovery request was directly

related to his claim of disparate treatment, and relevance is

the key to a defendant’s right to discovery.    See State v.

Scoles, 214 N.J. 236, 251 (2013); R. 3:13-3(c).    A limited right

of discovery to the statements of reasons already memorialized

on the issue of waiver is directly relevant and would ensure

that justice is dispensed fairly and uniformly.

                                  II.

    The right to challenge unconstitutional discrimination or

denial of equal protection in Graves Act waiver cases is a

hollow right if defendants are denied basic information

necessary to assert that right.    I therefore respectfully

dissent.



                                  5
