                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-5715-12T3
                                               A-0479-13T3
                                               A-0715-13T3
STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.                                   APPROVED FOR PUBLICATION

SHAQUILLE A. NANCE a/k/a                September 8, 2015
NANCE SHAQUILLE A, a/k/a
                                        APPELLATE DIVISION
NANCE SHAQUILLE,

     Defendant-Appellant.
______________________________

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

TAJA L. WILLIS-BOLTON a/k/a
TAJA BOLTON, a/k/a TAJA WILLIS,
a/k/a TAJ BOLTON, a/k/a TAJ
WILLIS, a/k/a TAJ WILLISBOLTON,
a/k/a TAJA WILLISBOLTON,

     Defendant-Appellant.
_______________________________

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

ALVIN D. WILLIAMS,

     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,    Mercer County,
Indictment No. 12-11-0195 in A-5715-12;
Monmouth County, Indictment No. 12-02-0380
in A-0479-13; and Union County, Indictment
No. 11-04-0471 in A-0715-13.

Ruth E. Hunter, Designated Counsel, argued
the cause for appellant Shaquille A. Nance
(Joseph   E.   Krakora,    Public   Defender,
attorney; Ms. Hunter, on the brief).

Daniel   I.   Bornstein,   Deputy   Attorney
General, argued the cause for respondent in
A-5715-12 (John J. Hoffman, Acting Attorney
General, attorney; Mr. Bornstein, of counsel
and on the brief).

Ruth E. Hunter, Designated Counsel, argued
the cause for appellant Taja L. Willis-
Bolton (Joseph E. Krakora, Public Defender,
attorney; Ms. Hunter, on the brief).

Paul H. Heinzel, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the   cause  for   respondent  in  A-0479-13
(Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney; Mr. Heinzel, of
counsel and on the brief).

Brian P. Keenan, Assistant Deputy Public
Defender argued the cause for appellant
Alvin D. Williams (Joseph E. Krakora, Public
Defender, attorney; Mr. Keenan, of counsel
and on the brief).

Sara B. Liebman, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent in A-0715-13 (Grace
H. Park, Acting Union County Prosecutor,
attorney; Ms. Liebman, of counsel and on the
brief).



                      2                         A-5715-12T3
                 The opinion of the court was delivered by

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

          In    these     consolidated   Graves     Act      cases,     we   consider

whether, after a motion for waiver by the State, the sentencing

judge had the discretion to impose a probationary term or was

mandated to impose a one-year parole disqualifier pursuant to

the plea agreement.            As we have determined that N.J.S.A. 2C:43-

6.2       (the       "escape   valve"    statute)       provides      for    judicial

discretion, we reverse and remand for resentencing.

          Defendant Shaquille A. Nance appeals from his sentence to a

three-year prison term with a period of parole ineligibility for

one year.            On March 6, 2012, Nance possessed a sawed-off 12-

guage Winchester shotgun inside his Trenton home.                     A State Grand

Jury charged Nance with third-degree conspiracy to possess and

dispose        of    prohibited    weapons,    N.J.S.A.      2C:5-2   (count      one);

third-degree            unlawful   possession      of    a    sawed-off      shotgun,

N.J.S.A. 2C:39-3b (count two); third-degree unlawful possession

of    a    weapon,      N.J.S.A.   2C:39-5c(1)     (count     three);    and    third-

degree         unlawful    disposition   of    a   weapon,     N.J.S.A.      2C:39-9b

(count four).

          Nance pled guilty to third-degree possession of a sawed-off

shotgun.            The prosecutor recommended five years with one-year

mandatory parole ineligibility.               At the plea, the court held the




                                          3                                    A-5715-12T3
sentence       was      subject    to    approval          by    the     Presiding        Judge.

Thereafter, the Presiding Judge approved the plea and returned

the case to the trial judge whose calendar the case was assigned

for the sentence.              During the sentence, defense counsel asked

the    sentencing        judge    to    consider         sentencing      Nance        below    the

State's      recommendation.            When       the    sentencing          judge      inquired

whether he could modify the sentence in favor of the defendant,

the    prosecutor        responded       that      the     judge       did    not     have     the

authority to impose a lesser sentence.1

       Defendant Taja L. Willis-Bolton appeals from his sentence

to     a     three-year        prison     term          with     a     period       of    parole

ineligibility for one year.                On December 13, 2011 Willis-Bolton

possessed a .25 caliber handgun without a license.                                  A Monmouth

County       Grand      Jury   charged     Willis-Bolton               with     second-degree

unlawful possession of a weapon,                        N.J.S.A. 2C:39-5b.                At the

plea, the judge told Willis-Bolton he "would have to serve one

year       prior   to    being    eligible         to    be     released      on    parole[.]"

Willis-Bolton           entered    a    guilty          plea    and    was     sentenced         in



1
  At the sentence, defense counsel asked the judge "to consider
modifying the sentence[.]"    The judge asked the prosecutor,
"[D]o you believe I have the authority to do that under the
Graves Act?" The prosecutor responded "I don't believe you do.
It's my understanding that the State modified it from a five
with a three to a five with a one, and the [Presiding Judge]
signed off on that. I don't believe that your Honor can modify
it any further."



                                               4                                         A-5715-12T3
accordance with the plea to a three-year prison term with one

year of parole ineligibility.

     Defendant Alvin D. Williams appeals from his sentence to a

three-year prison term with a period of parole ineligibility for

one year.     On January 9, 2011, Williams possessed a firearm

without a permit.        A Union County Grand Jury charged Williams

with third-degree terroristic threats, N.J.S.A. 2C:12-3b (count

one);    fourth-degree    aggravated       assault,    N.J.S.A.    2C:12-1b(4)

(count    two);   second-degree   possession          of   a   weapon   for    an

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

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

(counts four and five).       Pursuant to a plea agreement, Williams

pled guilty to count four.        The matter was not referred to the

assignment judge with the option of imposing either the one-year

minimum term of parole ineligibility or probation.                Williams was

sentenced to a three-year prison term with one year of parole

ineligibility.2




2
   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.
                                                      (continued)


                                       5                                A-5715-12T3
    On appeal, each defendant raises the same arguments:

                                  POINT I

            PURSUANT TO THE PLAIN LANGUAGE OF N.J.S.A.
            2C:43-6.2, AND THIS COURT'S OPINION IN STATE
            V. GINTY, 243 N.J. SUPER. 39, 42-43 (APP.
            DIV. 1990), THE JUDGE HAD DISCRETION TO
            SENTENCE DEFENDANT TO PROBATION AFTER THE
            PROSECUTOR CONSENTED TO REFER THE MATTER FOR
            A REDUCTION OF THE GRAVES ACT MANDATORY
            MINIMUM TERM.

                                  POINT II

            DEFENDANT IS ENTITLED TO A REMAND UNDER
            STATE V. KOVACK, 91 N.J. 476 (1982), BECAUSE
            HE   WAS  MISINFORMED  THAT   THERE  WAS   A
            MANDATORY MINIMUM PAROLE INELIGIBILITY TERM
            OF ONE YEAR.

    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).


(continued)
     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).   We
are uncertain whether the delegation extends to other judges
assigned to the Criminal Division.



                                     6                               A-5715-12T3
       In 1989, the Legislature enacted N.J.S.A. 2C:43-6.2.                                  The

purpose    of     the    amendment       was    to    allow       the    trial      courts    to

exercise        greater    discretion          sentencing          first-time         firearms

offenders, where the imposition of the mandatory minimum terms

required by the Graves Act were deemed to be "unnecessarily and

unproductively          harsh."          Cannel,      New     Jersey          Criminal       Code

Annotated, comment 2 on N.J.S.A. 2:43-6.2 (2014).

       In State v. Alvarez, 246 N.J. Super. 137, 142 (App. Div.

1991),    we     held     that    the     assignment         judge       is    to    make     the

sentencing "in-out" decision, i.e., "whether probation or a one-

year ineligibility term is to be imposed" under N.J.S.A. 2C:43-

6.2.      See State v. Mastapeter, 290 N.J. Super. 56, 64 (App.

Div.), certif. denied, 146 N.J. 569 (1996).                                  In Alvarez, we

concluded       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."         Alvarez,    supra,       246       N.J.    Super.       at    147    (emphasis

added); see State v. Ginty, 243 N.J. Super. 39, 41 (App. Div.

1990);    see     also    Cannel,      New     Jersey      Criminal       Code      Annotated,

comment     2    on     N.J.S.A.      2C:43-6.2           (2014)    ("[A]       prosecutor's

decision not to pursue or endorse an application . . . will not




                                               7                                       A-5715-12T3
be disturbed on appeal unless arbitrary, capricious, or unduly

discriminatory.").

    In State v. Watson, 346 N.J. Super. 521 (App. Div. 2002), a

Graves   Act    case,   we   referenced        the     sentence   options       when    a

prosecutorial waiver is granted: "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:43-2b(2)."

Id. at 535.

    Predicated       upon    our    review      of     the    record,    each     judge

sentenced      the   respective      defendant         as    though    they    had     no

discretion to sentence other than to that stated in the plea

agreement.      To the contrary, we conclude, as we did in Alvarez

and Watson, the escape valve statute vests discretion with the

sentencing judge to impose either a one-year minimum term of

parole   ineligibility       or    probation     conditioned      on    a     custodial

term upon the motion for a waiver or after a prosecutor approved

referral.      Therefore,     to    the       extent    the    State    argues       the

sentencing judge was specifically bound by the plea agreement's

terms, we disagree.

    In State v. Vasquez, 129 N.J. 189 (1992), our Supreme Court

addressed the issue of mandatory sentences:

                 Mandatory sentences usually allow for
            no judicial discretion. See, e.g., State v.
            Jefimowicz,   119   N.J.  152,   162   (1990)
            (sentencing     standards   applicable     to



                                          8                                    A-5715-12T3
            discretionary extended terms do not apply to
            Graves Act because "[t]here is nothing
            discretionary about this determination");
            State v. Towey, 114 N.J. 69, 80, 82 (1989)
            (no   judicial     discretion    in    mandatory
            sentencing structure of Graves Act; State v.
            Des   Marets,    92    N.J.   62,    80   (1983)
            (Legislature    can   limit   the    judiciary's
            discretion    to    sentence   by    prescribing
            mandatory    minimum    terms    for    offenses
            committed with firearms).

            [Id. at 199.]

       However,   as    noted,   these     were     not   "mandatory       sentences"

notwithstanding that the bounds of the judge's authority was

limited to two sentence options.                 Further, the plea agreements

were not "contract pleas."           See State v. Bridges, 131 N.J. 402,

414 (1993); see also State v. Thomas, 392 N.J. Super. 169, 174

(App. Div. 2007) ("[T]he trial court erred by imposing a lower

sentence than that negotiated between the State and defendant

pursuant to the Brimage Guidelines3 and N.J.S.A. 2C:35-12[.]").

Unlike    N.J.S.A.     2C:35-12,     the       escape   valve    statute     does   not

expressly or implicitly limit the sentencing judge's ability to

sentence a defendant to a lesser sentence provided for under the

plea agreement, nor does it require the judge to reject the

bargain    should      the   judge   conclude       the   plea    is   not    in    the

interest of justice.          See State v. Leslie, 269 N.J. Super. 78,

84 (App. Div. 1993), certif. denied, 136 N.J. 29 (1994).                              In


3
    See State v. Brimage, 153 N.J. 1 (1998).



                                           9                                  A-5715-12T3
criminal matters not subject to a "contract plea" the "parties

can    agree     only    on   a   sentence      that     the    prosecutor       will

'recommend' to the court; they are not empowered to negotiate a

sentence that can have any binding effect."                     State v. Warren,

115 N.J. 433, 442 (1989).

       We recognize the role of the prosecutor in making charging

decisions and in extending plea offers.                We also recognize that

the   Attorney     General    may    adopt      policies    relating     to     those

charging    decisions.        Indeed,     in   2008,   after     the   Legislature

amended the Graves Act to expand its scope, the Attorney General

issued a "Directive to Ensure Uniform Enforcement of the Graves

Act," ("Directive") published on October 23, 2008 and corrected

on    November    25,    2008.      Among      other   things,    the    Directive

addressed the policy of the Attorney General in the prosecutor's

waiver     determinations.          The     Directive,     though      binding     on

prosecutors' charging decisions, did not bind the court in the

exercise of its discretionary sentencing in waiver cases.

       Our decision does not alter the prosecutor's role as an

advocate    for    the    State     at    sentence.        In   that    role,    the

prosecutor is free to argue, after waiver or referral, for the

imposition of the mandatory minimum term of one year and the

base term of the custodial sentence within the authorized range




                                          10                              A-5715-12T3
for the offense, and defense counsel is free to argue for the

imposition of probation.4

      Nor     does   our      decision         alter     the       judge's    role       at

sentencing.     In the determination of which sentence option to

impose,   the   judge    is     required       to    state   the    reasons    for      the

sentence.       In      doing     so,     the        judge     must,      among      other

considerations,      reference          "the        mitigating      and    aggravating

factors . . . to bring rationality to the process and minimize

disparate   sentencing."          State    v.        Natale,   184     N.J.   458,      488

(2005).

     Finally, we are not concerned that our decision today may

result in a "revised" plea policy by the State that reduces

prosecutorial waiver motions or approvals to a referral.                             As we

have often noted, in different contexts, the prosecutor's role

is "to see that justice is done."                   State v. Frost, 158 N.J. 76,

83 (1999); State v. Spano, 64 N.J. 566, 568 (1974).                           We remain

confident that in carrying out that role, the State would employ

a plea policy on Graves Act escape valve cases that reflects

both the statute's legislative intent and the public interest of

securing a just outcome.




4
  We note that if a probationary term is imposed, there must be a
custodial aspect to the sentence.    See Watson, supra, 346 N.J.
Super. at 535.



                                          11                                      A-5715-12T3
    The judgments under review in these consolidated cases are

reversed and remanded.




                             12                       A-5715-12T3
