                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5323-18T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

WILBUR MOUNT,

     Defendant-Respondent.
___________________________

                   Submitted December 16, 2019 – Decided December 23, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 14-02-
                   0225.

                   Christopher L.C. Kuberiet, Acting Middlesex County
                   Prosecutor, attorney for appellant (Joie D. Piderit,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

                   Respondent has not filed a brief.

PER CURIAM
      In this firearms possession case, the State appeals the trial court's June 28,

2019 order granting defendant Wilbur Mount a waiver of the usual minimum

sentencing consequences under the Graves Act, N.J.S.A. 2C:43-6. We affirm.

      The Graves Act calls for a sentence of imprisonment with a mandatory

period of parole ineligibility for various firearm-related crimes. N.J.S.A. 2C:43-

6(c). The Act provides, in relevant part, that a defendant convicted of certain

enumerated firearms offenses must serve a minimum prison term of "one -half

of the sentence imposed by the court or 42 months, whichever is greater, . . .

during which the defendant shall be ineligible for parole." Ibid. The statute is

designed "to deter individuals from committing firearm-related crimes." State

v. Benjamin, 228 N.J. 358, 368 (2017); see also State v. Des Marets, 92 N.J. 62,

71 (1983).

      Pertinent to the present case, the Graves Act contains an "escape valve"

provision allowing for relief in certain limited instances from the statute's

mandatory minimum sentence. State v. Alvarez, 246 N.J. Super. 137, 139 (App.

Div. 1991). The escape valve is intended to avoid circumstances where the harsh

sentencing consequences of the statute would not serve the interests of justice .

The provision reads:

                   On a motion by the prosecutor made to the
             assignment judge that the imposition of a mandatory

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                                         2
            minimum term of imprisonment under [the Graves Act]
            for a defendant who has not previously been convicted
            of an offense under [the Graves Act], . . . does not serve
            the interests of justice, the assignment judge shall place
            the defendant on probation pursuant to paragraph (2) of
            subsection b. of N.J.S.A. 2C:43-2 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.

            [N.J.S.A. 2C:43-6.2 (emphasis added).]

      A prosecutor's discretion to recommend a Graves Act waiver to the court

is guided by an Attorney General Directive. Attorney General Directive to

Ensure Uniform Enforcement of the "Graves Act" (Oct. 23, 2008, as corrected

Nov. 25, 2008). 1 The Directive requires prosecutors to "consider all relevant

circumstances concerning the offense conduct and the offender, including those

aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1 [and]

the prosecutor may also take into account the likelihood of obtaining a

conviction at trial." Ibid. In deciding whether to move to authorize a lesser

sentence, the prosecutor must follow the Attorney General's Directive and, if a


1
 The Directive is available at https://www.state.nj.us/lps/dcj/agguide/pdfs/
Graves-Act-Oct23-2008.pdf.
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                                        3
defendant's request for such a motion is denied, provide a particularized

statement of reasons for the denial. Benjamin, 228 N.J. at 361.

      Case law has established that defendants may seek judicial review of a

prosecutor's denial of a Graves Act waiver. Id. at 372; Alvarez, 246 N.J. Super.

at 137. In order to do so, a defendant may move before the assignment judge

for a hearing as to whether the prosecutor's rejection or refusal is "grossly

arbitrary or capricious or a patent abuse of discretion." Alvarez, 246 N.J. Super.

at 147; see also State v. Cengiz, 241 N.J. Super. 482, 497-98 (App. Div. 1990).

When evaluating the interests of justice standard, the court "must consider the

nature of and the relevant circumstances pertaining to the offense," including

"facts personal to the defendant," such as "the defendant's role in the incident to

determine the need to deter him from further crimes and the corresponding need

to protect the public from him." State v. Megargel, 143 N.J. 484, 500-01 (1996).

      The facts in the present case arise out of a context in which defendant

obtained a gun and bullets after he and his family had been threatened with

violence by a known gang member.            The gang member had an ongoing

disagreement with defendant.       The gang member had apparently "pistol

whipped" defendant in the past, causing him to be hospitalized.




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                                        4
      The record reflects that on August 9, 2013, the gang member who had

beaten defendant arrived unexpectedly at defendant's house, accompanied by

two other men. Defendant's wife spoke with the men outside of the home. The

gang member told the wife he wanted to "fight the fair one" with defendant. The

wife saw two AK-47 assault rifles displayed in the men's car. She questioned

the men about the weapons, and they reportedly responded, "[w]e always have

to carry those."     The wife called the Perth Amboy police to report what had

occurred, and the men fled the scene. Neither she nor defendant lodged a formal

complaint with the police against the men.        Defendant did go to police

headquarters, but he did not provide them with any further information.

      According to representations by defense counsel, at the time of the

incident, the gang leader was "on the street" pending an attempted murder charge

of another person.

      About ten days later, the police received a report from a confidential

informant that defendant was carrying a nine-millimeter handgun in a fanny

pack. The police ran a warrant check on defendant, which revealed a pending

warrant from a different municipality involving a $350 unpaid sum.

      Thereafter, while on patrol near defendant's residence, a Perth Amboy

police officer saw defendant, his wife, their daughter, and defendant's father in


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                                        5
a car. Defendant's wife was driving, defendant was in the front passenger seat,

and the other two family members were in the rear.             According to a

representation by defense counsel, the family had just picked up the daughter

from a "Sweet Sixteen" party. An officer saw defendant speaking with an

acquaintance who was standing by the car window. As the officers approached

the car, the acquaintance walked away.

      At this point, the officers observed defendant moving in a furtive way that

gave them the impression he was attempting to conceal an item on the floor of

the car. They saw a fanny pack on the floor of the passenger side, and ordered

defendant out of the vehicle.     The officers then arrested defendant on the

outstanding municipal warrant. They searched the fanny pack and found a nine-

millimeter handgun with a defaced serial number, as well as a magazine

containing eight hollow-point bullets. Defendant shouted, "[Y]ou know why

I'm carrying that, I have to protect my family."

      In February 2014, a Middlesex County grand jury returned an indictment

charging defendant with second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for unlawful

purposes, N.J.S.A. 2C:39-4(a); fourth-degree possession of a defaced firearm,

N.J.S.A. 2C:39-3(d); and fourth-degree possession of prohibited devices,


                                                                         A-5323-18T4
                                         6
N.J.S.A. 2C:39-3(f). The unlawful purpose charge was subsequently dismissed

for reasons not disclosed in the record.

      On September 18, 2018, defendant's counsel requested the prosecutor's

office approve a Graves Act waiver. In making the request, defense counsel

stressed that defendant's criminal record only involved bad check offenses that

occurred in 2009, and that he had a clean record in the ensuing years.

      The prosecutor's office rejected defendant's request for a waiver. It issued

a letter detailing its reasons for doing so, tracking the various factors in the

Attorney General's Directive.     Among other things, the prosecutor's office

asserted that defendant had "shunn[ed] police assistance" to protect him and his

family from the gang-member threats, and instead had illegally obtained

firearms to take matters "into his own hands."

      Defendant sought judicial review of the prosecutor's denial.            The

application was delegated by the vicinage's Assignment Judge to the Presiding

Judge of the Criminal Part, Judge Michael A. Toto.

      After considering the parties' submissions and oral argument, Judge Toto

ruled that the interests of justice in this particular case warranted a Graves Act

waiver, and overruled the prosecutor's opposition.




                                                                          A-5323-18T4
                                           7
      The judge issued a detailed sixteen-page written opinion explaining why,

in this exceptional case, an override of the prosecutor's waiver denial was

justified. Among other things, the judge's opinion noted: (1) the State did not

adequately consider defendant's "compelling" reason to carry a handgun (i.e.,

duress); (2) defendant's limited criminal history; and (3) the reduced concerns

in this case for deterrence. Further, the judge assessed defendant's likelihood of

success at trial as "moderate." On the whole, the judge found the prosecutor's

decision was arbitrary, given the discrete circumstances presented.

      That same day, defendant conditionally pled guilty to count one, second-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and count three,

fourth-degree prohibited devices, N.J.S.A. 2C:39-3(f).       Consistent with the

Graves Act waiver, the court imposed a custodial sentence of three years with a

one-year stipulated period of parole ineligibility.       The trial court stayed

defendant's sentence, pending the State's appeal to this court of the waiver

ruling.

      This appeal by the State followed. In its brief, the State contends the trial

court underestimated the public safety considerations at stake in not imposing

the usual minimum punishment for gun possessory crimes in this case. The State

maintains the trial court's decision could foster vigilante behavior, and that


                                                                           A-5323-18T4
                                        8
defendant should have relied on the police to protect him and his family rather

than arming himself illegally.

      Having considered the State's arguments in light of the record and the

applicable scope of review, we affirm the trial court's decision to grant

defendant's request for a Graves Act waiver. We do so substantially for the

reasons eloquently set forth in Judge Toto's June 28, 2019 written decision.

      As Judge Toto aptly recognized, this is a rare instance in which a judicial

override of a prosecutor's Graves Act waiver denial is appropriate. The threat

of further violence against defendant and his family was not conjectural. The

gang member had already beaten defendant severely to a degree requiring

hospitalization, an assault followed by the menacing display of weaponry to

defendant's wife at the family residence. The family duly reported the threat to

the police. Their reluctance to lodge a formal complaint, presumably for fear of

sparking immediate retaliation, is not surprising. The circumstances strongly

suggest defendant acquired the gun and ammunition, albeit illegally, solely for

self-protection.

      In affirming the trial court's decision in this particular exceptional case,

we by no means intend to promote vigilante behavior. As it is, defendant will

still serve at least a full year in prison as punishment for his conduct. We also


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                                        9
do not believe the presiding judge, who undoubtedly has a wealth of day -to-day

experience with gun crimes, failed to accord sufficient respect to the county

prosecutor's discretion. The judge reasonably found the interests of justice in

this particular case called for a contrary result, and we doubt his decision, or our

affirmance of it, will produce long-term untoward effects.

      Affirmed. The stay of defendant's sentence shall expire in thirty days.




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