                                NOT FOR PUBLICATION WITHOUT THE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-2840-18T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

JORDAN X. SMITH,

     Defendant-Respondent.
____________________________

                   Submitted August 4, 2020 – Decided August 17, 2020

                   Before Judges Rothstadt and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 18-01-
                   0069.

                   Christopher L.C. Kuberiet, Acting Middlesex County
                   Prosecutor, attorney for appellant (Patrick F. Galdieri,
                   II, Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

                   Joseph E. Krakora, Public Defender, attorney for
                   respondent (Alyssa A. Aiello, Assistant Deputy Public
                   Defender, of counsel and on the brief).

PER CURIAM
      The State appeals from the probationary sentence imposed by the Law

Division on second-degree Graves Act charges. For the reasons that follow, we

vacate defendant's judgment of conviction and remand.

                                         I.

      We derive the following facts from the record. On October 21, 2017, a

South Brunswick Township police officer stopped defendant Jordan X. Smith.

Defendant was driving his mother, Nicole Andrews's vehicle when he was

stopped by a South Brunswick Township police officer for turning without using

a turn signal. He was visiting friends near his home. At the scene, defendant

advised the officer that he had an outstanding traffic warrant and a suspended

license because he failed to pay a traffic ticket for a seatbelt violation.

      Andrews arrived on the scene and consented to a search of her vehicle,

which uncovered a bag with six prednisone pills in the console. Defendant was

then arrested and searched, which yielded a defaced .25-caliber handgun

concealed in his pants leg. He did not have a permit to possess or carry a

handgun. At the time of his arrest, defendant was a twenty-three-year-old high

school graduate, with some community college education, living with family

members and working full-time in construction.           As a juvenile, defendant

successfully completed a diversion program for committing disorderly persons


                                                                              A-2840-18T1
                                         2
offenses. As an adult, defendant received a conditional discharge for marijuana

possession from a municipal court.

      On January 12, 2018, a Middlesex County grand jury charged defendant

with: second-degree unlawful possession of a .25-caliber handgun, N.J.S.A.

2C:39-5(b)(1) (count one); fourth-degree possession of a defaced firearm,

N.J.S.A. 2C:39-3(d) (count two); fourth-degree unlawful purchase or acquisition

of handgun ammunition, N.J.S.A. 2C:58-3.3(b) (count three); and fourth-degree

unlawful possession of a prescription drug, prednisone, N.J.S.A. 2C:35-

10.5(e)(2) (count four). In addition, defendant was issued four motor vehicle

summonses, including driving with a suspended license, N.J.S.A. 39:3-40.

      On April 22, 2018, defendant's counsel sent a letter to the Middlesex

County prosecutor seeking a Graves Act waiver pursuant to N.J.S.A. 2C:43-6.2.

Defendant explained that he lives with his mother and two younger siblings; is

a church member; and "has never been afraid of hard work." Letters from family

members and friends were submitted to the prosecution attesting to defendant 's

good character and work ethic. In a June 19, 2018 reply letter, the prosecutor

denied defendant's request. On June 24, 2018, defendant filed a motion under




                                                                       A-2840-18T1
                                      3
State v. Alvarez1 appealing the prosecutor's denial of the Graves Act waiver to

the assignment judge.

       Following oral argument on July 30, 2018, the former assignment judge

rendered an oral opinion granting defendant's application for a Graves Act

waiver. In reaching his decision, the judge noted discovery was not required,

that "there is no violence here" and "no commission of any other crime . . . other

than the possessory crime of the gun . . . ." After reviewing the Graves Act

waivers extended in the vicinage, the judge concluded the prosecutor's denial of

the waiver in this case was "an arbitrary and capricious decision," and that the

prosecutor had "invited" defendant to apply for a waiver.

       Additionally, the judge stated that "[F]ive years with a three[-]and[-]

a[-]half[-]year parole disqualifier is not justice."   The judge acknowledged

"there is a presumption for incarceration" and unless the presumption is

overcome at sentencing, defendant "would have to serve at least one year

without parole eligibility." A memorializing order was entered on July 31, 2018.

       On August 27, 2018, defendant appeared before a different judge and pled

guilty to all four counts of the indictment. In exchange for his guilty plea, the

State agreed not to make a specific sentencing recommendation.


1
    246 N.J. Super. 137 (App. Div. 1991).
                                                                          A-2840-18T1
                                        4
      On December 7, 2018, defendant again appeared before the assignment

judge and withdrew his guilty plea. Defendant entered a new guilty plea to the

unlawful possession of a .25-caliber handgun and the driving with a suspended

license charges. In exchange for his revised guilty plea, the State agreed to

recommend that defendant be sentenced to an aggregate three-year term of

imprisonment with a one-year period of parole ineligibility, along with dismissal

of the other charges.

      On the sentencing date, after hearing from defendant, his counsel, great

aunt, and the State, the former assignment judge made findings regarding the

applicable aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and

N.J.S.A. 2C:44-1(b). The judge found one aggravating factor nine (the need to

deter defendant and others from violating the law), which he gave weight to.

However, the judge rejected the State's argument that aggravating factor three

(the risk defendant will commit another offense) applied. The State argued

defendant's juvenile complaint, which was diverted, and his adult charge for

possession of under fifty grams of marijuana, which resulted in a conditional

discharge, supported aggravating factor number three.

      The judge found mitigating factors one (defendant's conduct neither

caused nor threatened serious harm); two (defendant did not contemplate that


                                                                         A-2840-18T1
                                       5
his conduct would cause or threaten serious harm); seven (defendant has no

history of prior delinquency or criminal activity or has led a law-abiding life for

a substantial period of time before the commission of the present offense); eight

(defendant's conduct was the result of circumstances unlikely to recur); nine (the

character and attitude of defendant indicate he is unlikely to commit another

offense); and ten (defendant is particularly likely to respond affirmatively to

probationary treatment), which the judge afforded substantial weight .

Furthermore, the judge stated defendant did not possess the handgun with the

intent to "go out there and commit crimes" and he did not cause or threaten any

harm.

        After weighing the factors, the letters written on behalf of defendant, his

therapist's report, and the character of defendant, the judge held "this is a mere

possessory offense," and defendant carried the gun "for self-protection because

he worked in New York City and was concerned." The judge concluded it would

be an injustice for defendant to receive a prison term. Consequently, the judge

sentenced defendant to an aggregate five-year probationary term for a

"regulatory offense." All remaining charges were dismissed, and appropriate

fines were imposed.




                                                                           A-2840-18T1
                                         6
      On appeal, the State raises a single point for our consideration:

            POINT ONE

            [THE   JUDGE]  ERRED   IN  SENTENCING
            DEFENDANT TO NON-CUSTODIAL PROBATION
            BECAUSE THIS WAS NOT THE EXCEPTIONAL
            CASE WHERE A PRISON SENTENCE WOULD BE
            A SERIOUS INJUSTICE THAT OVERRIDES THE
            NEED TO DETER.

      Having reviewed the record in light of governing principles, we conclude

that the judge did not provide any explanation under N.J.S.A. 2C:44 -1(d)

addressing the "serious injustice" exception to the presumption of imprisonment

for this second-degree crime or make required findings under Rule 1:7-4.

Accordingly, we vacate the sentence and remand for resentencing before the

current assignment judge.

                                        II.

      Because the issue raised on appeal implicates the legality of the sentence

imposed, our review of the judge's decision is de novo. See State v. Nance, 228

N.J. 378, 393 (2017).     We therefore "afford[] no special deference to the

[judge's] interpretation of the relevant statutes." Ibid.; see also State v. Grate,

220 N.J. 317, 329 (2015).

      The State argues the judge erred by imposing a non-custodial probationary

sentence "in derogation of the exacting standards" for presumption of

                                                                           A-2840-18T1
                                        7
incarceration for a second-degree crime under N.J.S.A. 2C:44-1(d). Because

the "serious injustice" exception to the presumption of imprisonment has not

been demonstrated here, the State contends a reversal and remand for

resentencing is warranted.

      "Enacted in 1981 as 'a direct response to a substantial increase in violent

crime in New Jersey,' the Graves Act is intended 'to ensure incarceration for

those who arm themselves before going forth to commit crimes.'" Nance, 228

N.J. at 390 (quoting State v. Des Marets, 92 N.J. 62, 68 (1983)).

            As amended, the statute applies to a defendant who is
            convicted of one of the offenses enumerated in the
            statute "who, while in the course of committing or
            attempting to commit the crime, including the
            immediate flight therefrom, used or was in possession
            of a firearm as defined in [N.J.S.A.] 2C:39-1(f)."

            [Ibid. (alteration in original) (quoting Des Marets, 92
            N.J. at 64 n.1).]

      The Graves Act requires the imposition of a minimum term "fixed at one-

half of the sentence imposed by the court or [forty-two] months, whichever is

greater, or [eighteen] months in the case of a fourth[-]degree crime, during

which the defendant shall be ineligible for parole." N.J.S.A. 2C:43-6(c). "To

mitigate the undue severity that might accompany the otherwise automatic

application of the mandatory minimum sentence under the Graves Act," N.J.S.A.


                                                                         A-2840-18T1
                                       8
2C:43-6.2 (Section 6.2) provides "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." State v. Benjamin, 228 N.J. 358,

368 (2017).

      Pursuant to Section 6.2,

              On a motion by the prosecutor made to the assignment
              judge that the imposition of a mandatory minimum term
              of imprisonment under . . . [N.J.S.A. 2C:43-6(c)] for a
              defendant who has not previously been convicted of an
              offense under that subsection . . . 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.

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

In accordance with Alvarez, defendants may "appeal the denial of a waiver to

the assignment judge upon a showing of patent and gross abuse of discretion by

the prosecutor." Benjamin, 228 N.J. at 364.

      To make the showing delineated in Alvarez, "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." Benjamin, 228 N.J. at 372 (quoting Alvarez, 246 N.J. Super. at 148).

"Once a defendant makes this threshold showing, the defendant can obtain a

                                                                            A-2840-18T1
                                          9
hearing to review the prosecutor's decision if the assignment judge concludes

that the 'interests of justice' so require." Id. at 372-73.

      In 2008, the New Jersey Attorney General issued a directive to prosecutors

"'to ensure statewide uniformity in the exercise of prosecutorial discretion in

implementing' the Graves Act."        Id. at 369 (quoting the Attorney General

Directive to Ensure Uniform Enforcement of the "Graves Act" (Oct. 23, 2008,

as corrected Nov. 25, 2008) (the Directive)).          "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." Ibid. (quoting the Directive at 12).

      Under the Directive, "[t]he prosecuting agency as part of the State's initial

plea offer shall agree to move pursuant to [N.J.S.A.] 2C:43-6.2 for a reduction

to a one-year term of parole ineligibility," unless (1) the defendant is ineligible

for a waiver due to a prior conviction for a Graves Act offense, (2) there is

"substantial likelihood that the defendant is involved in organized criminal

activity," (3) "the prosecuting agency determines that the aggravating factors

applicable to the offense conduct and offender outweigh any applicable

mitigating circumstances" or (4) "the prosecuting agency determines that a


                                                                           A-2840-18T1
                                         10
sentence reduction to a one-year term of parole ineligibility would undermine

the investigation or prosecution of another." Directive at 7-14.

      When considering a defendant's Alvarez motion, the assignment judge

may consider, in assessing the prosecutor's conduct, case-specific files in

assessing the prosecutor's reasons not to grant a waiver for a particular

defendant. Benjamin, 228 N.J. at 373. "This judicial backstep 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." Ibid. Here, the State challenges the judge's finding that

this is the exceptional case where imprisonment will not serve any deterrence

purpose and imprisonment would constitute a serious injustice.

      We conclude from our review that the judge made no findings of fact or

conclusions of law when he decided defendant's motion. A trial court is required

"by an opinion or memorandum decision, either written or oral, [to] find the

facts and state its conclusions of law thereon . . . on every motion decided by a

written order that is appealable as of right." R. 1:7-4(a).

      "Mere invocation of the serious injustice exception will not suffice

without a detailed explanation of its application to the facts and circumstances

at hand and a reasoned demonstration that this is one of those rare cases in which


                                                                          A-2840-18T1
                                       11
the otherwise paramount goals of deterrence have been overridden." State v.

Lebra, 357 N.J. Super. 500, 511 (App. Div. 2003).         Without that detailed

explanation, the exception is not met. Ibid.

        We conclude from our review that we are unable to perform our appellate

function because the judge failed to make the necessary findings of fact

supporting his determination or otherwise sufficiently expressing his reasoning

that the serious injustice exception to the presumption of imprisonment applies

here.    The judge simply concluded this was "a regulatory offense," and a

probationary sentence would serve the interests of justice.

        Defendant's status as a first-time offender, his full-time employment in

construction, and aspirations of becoming a crane operating engineer, while

commendable, do not automatically qualify him as "idiosyncratic." The judge

failed to make the requisite findings on this important issue. Further, the judge

made no detailed findings that defendant showed a serious injustice would occur

if he was incarcerated.

        Without specific findings made by the judge as noted above, as in Evers,

"we cannot agree that the sum of [defendant's] circumstances is so rare and

extraordinary that the 'human cost' of defendant's imprisonment exceeds

society's imperative need to deter others . . . ." Id. at 401. We are therefore


                                                                         A-2840-18T1
                                       12
constrained to vacate the order under review and remand for resentencing before

the current assignment judge.

                                       III.

      We reject defendant's argument that the State's appeal is barred by the

doctrine of double jeopardy. By operation of law, a court's sentence does not

become final for ten days "if the court imposes a non[-]custodial or probationary

sentence upon conviction for a crime of the first or second degree" to permit the

State to contest the sentence imposed. N.J.S.A. 2C:44-1(f)(2). "[E]xecution of

[a] sentence shall be stayed pending appeal by the State pursuant to N.J.S.A.

2C:44-1(f)(2) . . . ." R. 2:9-3(c). A defendant "may elect to execute a sentence

stayed by the State's appeal but such election shall constitute a waiver of the

right to challenge any sentence on the ground that execution has commenced."

R. 2:9-3(c).

      "Because defendants are charged with notice of the statute, they have no

reasonable expectation that their sentences will be final until either the time for

appeal expires without appeal by the State or a timely appeal is resolved." State

v. Johnson, 376 N.J. Super. 163, 171-72 (App. Div. 2005); see also Sanders, 107

N.J. 609, 620 (1987). Therefore, any defendants who received a lenient sentence

under this Code, cannot "legitimately have expected that their sentences were


                                                                           A-2840-18T1
                                       13
final when pronounced." Sanders, 107 N.J. at 620. "The clear and unambiguous

terms of the statute remove any expectation of finality that a defendant may vest

in his sentence; its stay provisions ensure that he will not begin serving that

sentence until the State's notice of appeal is filed." Id. at 621.

       Defendant does not contest the above statutory framework, but instead

challenges that he was sentenced to a probationary term stemming from the

"escape valve" of the Graves Act, N.J.S.A. 2C:43-6.2, and not N.J.S.A. 2C:44-

1. Because the Graves Act does not include a similar ten-day stay provision,

defendant in this case claims he could not have been charged with knowledge of

an automatic stay.

       Our Court has construed N.J.S.A. 2C:43-6.2 and N.J.S.A. 2C:44-1(f)(2)

as two harmonized components of the Code's sentencing scheme. In Nance, the

Court explained that "N.J.S.A. 2C:44-1(d) governs the sentencing of any 'person

who has been convicted of a crime of the first or second degree,' with no

exception for defendants who are granted a Graves Act waiver." 228 N.J. at

396.

       Moreover, "[b]ecause one of the two alternative sentences permitted under

section 6.2—a custodial term with a mandatory minimum of one year—

constitutes a 'sentence of imprisonment' within the meaning of N.J.S.A. 2C:44 -


                                                                         A-2840-18T1
                                        14
1(d), [a] . . . judge may comply with [both provisions] at once." Ibid. Therefore,

the Court concluded that the presumption of incarceration in N.J.S.A. 2C:44 -1

applies when a judge chooses between the alternative sentences of the Graves

Act. Id. at 397.

      Because the analytical framework of choosing between the two alternative

sentences under N.J.S.A. 2C:43-6.2 necessarily includes an analysis under

N.J.S.A. 2C:44-1 and since the judge specifically referenced his analysis under

N.J.S.A. 2C:44-1(f)(2), we conclude defendant was charged with notice of the

statutes. Consequently, the automatic ten-day stay allowing the State to appeal

applies, and the State's appeal does not violate defendant's right against double

jeopardy. See Sanders, 107 N.J. at 621.

      Vacated and remanded for resentencing in conformity with this opinion.

We do not retain jurisdiction.




                                                                          A-2840-18T1
                                       15
