                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-1569-13T3

STATE OF NEW JERSEY,
                                          APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                             September 8, 2015
v.                                           APPELLATE DIVISION

KASSEY BENJAMIN,

     Defendant-Appellant.
________________________________________

           Argued February 3, 2015 – Decided September 8, 2015

           Before Judges Fisher, Accurso and Manahan.

           On appeal from the Superior Court of New
           Jersey, Law Division, Middlesex County,
           Indictment No. 11-09-1414.

           David R. Oakley argued the cause for
           appellant (Anderl & Oakley, P.C., attorneys;
           Mr. Oakley, of counsel and on the brief).

           Joie Piderit, Assistant Prosecutor, argued
           the cause for respondent (Andrew C. Carey,
           Middlesex County Prosecutor, attorney; Ms.
           Piderit, of counsel and on the brief).

     The opinion of the court was delivered by

MANAHAN, J.S.C. (temporarily assigned).

     In   this   Graves   Act   case,   defendant   appeals       from   his

conviction after a plea for which he was sentenced to a three-

year prison term with a period of parole ineligibility for three

years.    On appeal, defendant argues the prosecutor and Attorney
General should be ordered to produce records relating to their

waiver decisions of other defendants pursuant to the Graves Act

"escape valve" statute.              N.J.S.A. 2C:43-6.2.             Prior to his plea,

defendant requested the records without success.                              In light of

our    review        of    the    record,           the     applicable    law     and    in

consideration of fundamental fairness, we reverse and remand.

       On July 27, 2011, defendant and his friends became involved

in a verbal altercation with another group of young males at a

McDonald's       "drive-thru"         in     Edison,        during     which    defendant

brandished a handgun.            Defendant did not point the gun at anyone

in particular.            When the handgun was later recovered by police

it was unloaded.           The handgun's serial number was scratched off.

       A   Middlesex        County    Grand          Jury    returned    an     indictment

charging defendant with second-degree possession of a weapon for

an    unlawful    purpose,        N.J.S.A.          2C:39-4a   (count    one);     second-

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

two); fourth-degree possession of a defaced firearm, N.J.S.A.

2C:39-3d     (count         three);        third-degree         terroristic      threats,

N.J.S.A.      2C:12-3b           (count         four);       fourth-degree       unlawful

possession      of    a    weapon,    N.J.S.A.         2C:39-5d      (count    five);   and

third-degree         possession      of     a    weapon      for   unlawful     purposes,

N.J.S.A. 2C:39-4d (count six).




                                                2                                 A-1569-13T3
      Defense counsel filed a motion requesting the prosecutor to

approve a referral of defendant's case to the Assignment Judge

or   otherwise   grant    a   waiver      from        the    three-year       mandatory

minimum     sentence.         The     prosecutor             opposed       defendant's

application.      In    furtherance    of       the    motion,         defense   counsel

requested     documents    relating        to    waiver           decisions      by    the

prosecutor.      The    prosecutor     denied          the       request   in    writing

stating that there were no records responsive to the request.

The prosecutor, besides noting his opposition to the motion, did

not provide the basis in writing for not seeking a waiver.                            In a

written reply, the Attorney General's Office denied a similar

records request stating that "this division does not have the

documents you are seeking; therefore, your request is denied."

Without   further   pursuit    of   the     motion          or   the    denial   of    the

records he sought, defendant entered a guilty plea.1

      At the plea hearing, defense counsel noted the following:

            [W]e do intend to appeal an issue which
            occurred earlier, which comes out of the
            pre-trial . . . where we attempted to
            ascertain all of the waivers under the
            Graves waivers that were done by the
            Middlesex County Prosecutor's Office, and
            also from the Attorney General, and through
            OPRA, and also through regular discovery

1
  Defense counsel filed a denial of access complaint with the
Government Records Council and defendant agreed to mediate. The
Middlesex County Prosecutor's Office declined mediation because
it did not possess the documents defendant requested.



                                       3                                         A-1569-13T3
            requests.    And     we   were   told   nothing    like
            that exists.

    As a result of the plea, no order was entered by the court

in relation to the motion.

    Pursuant to a plea agreement, defendant pled guilty to one

count of second-degree possession of a weapon for an unlawful

purpose.    Defense counsel reiterated his intention to appeal the

sentence,   based   upon   the    same     concerns   raised    at    the   plea

hearing.    The sentencing judge found aggravating factor nine and

mitigating factors seven, eight and nine.             The judge noted that

defendant had no prior criminal history and led a law abiding

life for his twenty years.        The judge also noted that he did not

think this conduct would reoccur or that defendant would ever

pick up another weapon.        Defendant was sentenced in accord with

the plea agreement to a three-year term of imprisonment with a

three-year period of parole ineligibility.

    On appeal, defendant argues:

                                  POINT I

            DEFENDANT'S SENTENCE OUGHT TO BE VACATED AND
            REMANDED.     COUNTY PROSECUTOR SHOULD BE
            ORDERED TO PRODUCE RECORDS OF WAIVERS FOR
            RESENTENCING.

                                  POINT II

            DEFENDANT'S SENTENCE OUGHT TO BE VACATED AND
            REMANDED BECAUSE THE AG DIRECTIVE AUTHORIZES
            INTER-COUNTY DISPARITY, IT MUST BE REVISED
            FOR RESENTENCING OF DEFENDANT.



                                       4                               A-1569-13T3
     At the outset we note two obstacles to our review; one of

which the State impliedly raises and the other which the State

did not raise.2

     First, defendant does not appeal from an order denying the

production of the waiver records as no order was entered.                            As

such, defendant's appeal would, in the usual course, be barred

for lack of jurisdiction.              R. 2:2-3; Do-Wop Corp. v. City of

Rahway, 168 N.J. 191, 199 (2001) ("[I]t is well-settled that

appeals   are    taken       from    orders      and   judgments    and    not     from

opinions, oral decisions, informal written decisions, or reasons

given   for    the    ultimate       conclusion.");       see   also      Heffner    v.

Jacobson,     100     N.J.    550,    553       (1985);   Commercial       Realty     &

Resources     Corp.    v.    First    Atl.      Properties   Co.,   122     N.J.    546

(1991); Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78

(App. Div. 1993).           We have at times opted to overlook technical

insufficiencies in order to reach the merits of the appeal.                          In

re Berkeley, 311 N.J. Super. 99, 101 (App. Div. 1998); Paquet,

Inc. v. Dep't of Transp., 335 N.J. Super. 130, 135 n.1 (App.

Div. 2000).

     Second, while defendant, through counsel, noted his intent

to appeal the non-production of the requested documents at both

2
  The State argues on appeal that defendant waived his right to
appeal the decision of the prosecutor by not challenging it
before the Assignment Judge.



                                            5                                A-1569-13T3
the plea and sentence, he did not enter a "conditional plea."

R. 3:9-3(f).     Although, during the plea and sentence, the State

lodged no objection to defendant's "reservation" to appeal the

waiver decision and non-production of records, defendant did not

seek the approval of the court nor the consent of the prosecutor

to enter a conditional plea.     Ordinarily, the failure to enter a

conditional plea would bar appellate review of other than search

and seizure issues.     State v. Knight, 183 N.J. 449, 471 (2005);

State v. J.M., 182 N.J. 402, 410 (2005).

      In State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div.

1992), this court acknowledged that a guilty plea "generally

constitutes a waiver of all issues which were or could have been

addressed by the trial judge before its entry."               We further

acknowledged that a conditional plea may be entered only with

the court's approval and the consent of the prosecutor.              Id. at

304   (citations    omitted).     Notwithstanding,     we     held     that

adherence to the requirements of Rule 3:9-3(f) "would result in

an injustice."     Ibid. (quoting R. 1:1-2).

      In Gonzalez, the defendant pled guilty to a school zone

drug offense and later sought to withdraw her plea.             She also

challenged   the   constitutionality   of   the   operative    statute's

mandatory sentence on separation of powers grounds.             We noted




                                  6                              A-1569-13T3
that although Gonzalez did not enter a conditional plea, we

considered her argument:

              because it relates in part to sentencing,
              notwithstanding the specifics of the plea
              agreement.    Further, it would be unfair
              under the circumstances presented to require
              defendant to forego the benefit of the plea
              agreement in order to raise this important
              question.

              [Ibid. (internal citation omitted).]

       As in Gonzalez, this matter involves the issue of mandatory

sentencing and, more particularly, whether the decision by the

prosecutor not to seek a waiver was an abuse of discretion.

While concededly the procedural history before the trial court

does    not    snuggly           fit   the    procedural        paradigm    for    appellate

review,       we    conclude,          as    we    did     in   Gonzalez,       that     strict

adherence          to     the     applicable          rules     "would     result       in    an

injustice."             R. 1:1-2.           To be sure, it would be inherently

unfair    to        allow        the     legitimacy        of   a     blanket     denial      of

defendant's             discovery        request      to      stand     without        judicial

scrutiny.               Absent     our      review,      defendant's       opportunity         to

challenge the decision by the prosecutor not to seek a waiver or

to produce discovery would be eviscerated.

       It would have been preferable had the appeal been taken

from an order or final judgement, or had defendant reserved his

right    to    appeal        based       upon     a   conditional        plea.         However,




                                                  7                                    A-1569-13T3
predicated upon the "interest of justice" rationale noted above,

as well as that the parties have thoroughly briefed and argued

the issue before us, we choose to resolve the issue on the

merits.

    Defendant argues the Middlesex County Prosecutor abused his

discretion by failing to keep records of prior Graves Act case

waivers.    Pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), any

person    convicted     of   the   unlawful    possession    of    a    firearm,

N.J.S.A.    2C:39-5(b),       "shall   be     sentenced     to    a     term    of

imprisonment . . . ."          At all times relevant to the facts in

this case, the Graves Act further required that "[t]he term of

imprisonment shall include the imposition of a minimum term[,] .

. . fixed at, or between, one-third and one-half of the sentence

imposed by the court or three years, whichever is greater . . .

during    which   the   defendant   shall     be   ineligible     for   parole."

N.J.S.A. 2C:43-6(c).         The "escape valve" provision of N.J.S.A.

2C:43-6.2 states:

            that   where   a  defendant  has   not  been
            previously   convicted   of  a   Graves  Act
            offense, and where the . . . mandatory
            minimum "does not serve the interests of
            justice," the prosecutor may move before the
            Assignment Judge for a reduced mandatory
            minimum term of one year, or to place the
            defendant on probation with the condition of
            a jail term pursuant to N.J.S.A. 2C:43-
            2(b)(2).




                                       8                                 A-1569-13T3
            [State v. Watson, 346 N.J. Super. 521, 535
            (App. Div. 2002), certif. denied, 176 N.J.
            278 (2003).]

      We have previously held that, if the prosecutor does not

consent to a defendant's request to be sentenced pursuant to the

escape valve provision of N.J.S.A. 2C:43-6.2, "the defendant may

[appeal the denial of the waiver] by arguing to the Assignment

Judge that the prosecutor's refusal is a patent and gross abuse

of discretion."      Ibid.; see also State v. Alvarez, 246 N.J.

Super. 137, 147 (App. Div. 1991).

      In Alvarez, we concluded that the Graves Act escape valve

was    "constitutional     because    the      Assignment   Judge     has       the

ultimate authority to decide whether the prosecutor arbitrarily

or    unconstitutionally    discriminated        against    a   defendant        in

determining whether the 'interests of justice' warrant reference

to the Assignment Judge."      Id. at 147.

      The   Attorney     General      Directive      to     Ensure        Uniform

Enforcement   of   the   "Graves     Act,"     ("Directive")      published       on

October 23, 2008 and corrected on November 25, 2008, pursuant to

sections    "d"    (Memorialization       of    Reasons)    and     "e"      (Data

Reporting to Attorney General) stated:

                 The prosecuting agency shall document
            in the case file 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.



                                      9                                   A-1569-13T3
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).

     . . . .

On a quarterly basis, each prosecuting
agency shall report to the Attorney General
the following information, on a form or in a
manner as may be prescribed by the Director
of the Division of Criminal Justice, in
order to permit the Attorney General to
monitor the implementation and effects of
this Directive:

the number of pre-indictment and post-
indictment pleas where the prosecutor moved
for or approved a waiver or reduction of the
minimum term;

the number     of   trials,   and   trial   results,
and[;]

such other information that the Director of
the Division of Criminal Justice determines
is   relevant  to   the  Attorney   General's
monitoring and oversight responsibilities.



                         10                            A-1569-13T3
       In order to prevail on an Alvarez motion, "a defendant must

make       a     showing     that      'the      prosecutor        arbitrarily         or

unconstitutionally           discriminated        against      a     defendant        in

determining whether the "interests 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).

       The very essence of discrimination is disparate treatment.

In the Directive, the Attorney General specifically noted that

the procedures and criteria set forth in governing a decision on

waiver     "are    intended    to     ensure    statewide     uniformity        in   the

exercise of prosecutorial discretion in implementing                           N.J.S.A.

2C:43-6.2."          We      interpret          the    Directive's             required

memorialization of reasons by the prosecuting agency as a means

to   ensure      that     waiver    decisions    are   not    disparate        and   not

dependent upon the venue where the Graves offense is prosecuted,

as in a prior plea policy that was met with our Supreme Court's

disapproval.        See State v. Brimage, 153 N.J. 1 (1998).

       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




                                          11                                   A-1569-13T3
disadvantaged in meeting his Alvarez burden.           Moreover, given

these circumstances, no informed judicial determination of the

motion could be made.

    In    resolution   of   this   quandary,   we   hold   that,     as   in

prosecutorial decisions relating to applications for Pre-Trial

Intervention, the prosecutor must provide written reasons for

withholding consent to a waiver in order to promote procedural

fairness and to ensure meaningful judicial review.         See State v.

Nwobu, 139 N.J. 236 (1995); State v. Atley, 157 N.J. Super. 157

(App. Div. (1978).

    We next address defendant's plea and sentence – neither of

which he specifically argues as a basis for reversal.                 Here,

defendant was faced with a dilemmatic choice.          He could pursue

the Alvarez motion which, given the denied discovery and without

knowing the precise reasons for denial of the waiver, would have

made a successful outcome unlikely.        Or, he could accept the

plea.    Since we are persuaded that defendant was denied a full

and fair opportunity to pursue the motion by the position taken

by the prosecutor, his resolution of the dilemma by his plea and

resultant sentence must be vacated.

    Having reached our decision, we are impelled to remand for

further proceedings on the Alvarez motion before the Assignment




                                   12                              A-1569-13T3
Judge.3     Upon    remand,     defendant     may    renew   his   request    for

discovery of other case files relative to waiver decisions by

the prosecutor.       Should the prosecutor maintain his position

that there are no records responsive to the request, the judge

may consider, in light of the Directive, whether an adverse

inference    should        be   drawn   in     the   determination     of     the

prosecutor's      waiver    decision.        Further,   consistent    with    our

holding,    the    prosecutor     shall      be   required   to    provide,    in

writing, the reasons for his waiver decision.                 We leave it to

the judge to decide whether an evidentiary hearing would be

required.    We add that in reversing and remanding, we express no

view as to the merits of defendant's motion.

     Reversed and remanded for further proceedings consistent

with this opinion.         We do not retain jurisdiction.




3
   In a Memorandum dated November 21, 2008, the Acting
Administrative Director of the Courts, at the direction of the
Chief Justice, clarified that while statutory language indicates
that motions for waiver of, or reductions to, the otherwise
mandatory minimum terms of imprisonment or parole ineligibility
required pursuant to the Graves Act are to be made by the
Prosecutor to the Assignment Judge, that responsibility is
delegable by the Assignment Judge to the Criminal Presiding
Judge, pursuant to inherent authority and the Rules of Court.
     Although not specifically referenced in the Memorandum, we
presume that the responsibility for sentencing may also be
delegated to the Criminal Presiding Judge. R. 1:33-6(a).




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