                        NOT FOR PUBLICATION WITHOUT THE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-1921-15T1
                                                  A-3586-15T1



STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

AMBER L. SPURLIN, a/k/a
LYNN A. SPURLIN,

     Defendant-Respondent.
_______________________________

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

STEVEN J. KACZUR,

     Defendant-Respondent.
________________________________

              Submitted June 1, 2017 – Decided June 21, 2017

              Before Judges Alvarez, Manahan and Lisa.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment
              Nos. 14-01-0034 (A-1921-15) and 12-12-1775 (A-
              3586-15).
           Andrew C. Carey, Middlesex County Prosecutor,
           attorney   for   appellant  (Jason   Boudwin,
           Assistant Prosecutor, of counsel and on the
           brief).

           Respondent Amber L. Spurlin has not filed a
           brief.

           The Maglione Firm, P.C., attorneys for
           respondent Steven J. Kaczur (Dean R. Maglione,
           of counsel; Lora B. Glick, on the brief).

PER CURIAM

      These    cases   were    calendared    back-to-back,      and    we    now

consolidate them for disposition in a single opinion.                  The two

cases involve identical sentencing issues dealing with the Graves

Act   waiver   provision,     N.J.S.A.    2C:43-6.2,   which    authorizes      a

prosecutor to move before the assignment judge for a waiver of the

minimum   mandatory    terms    of   imprisonment      that    are    generally

required under the Graves Act pursuant to N.J.S.A. 2C:43-6c.

      The crimes in both cases were second-degree crimes and were

committed in Middlesex County.            In both cases, the prosecutor

moved before the assignment judge for a Graves Act waiver.                   The

assignment judge approved the waiver but did not determine which

of the two options available when a waiver is granted, namely,

reduction of the minimum mandatory term to one year or imposition

of a probationary sentence, should be imposed.                  He left that

determination to the sentencing judge.



                                      2                                 A-1921-15T1
     The matters in both cases went back before the same sentencing

judge, who imposed probationary terms for both defendants.                   The

State   appealed,   contending      that    these   sentences    were   illegal

because the facts before the court in each case, as well as the

sentencing court's findings, only supported imposition of a prison

sentence of not less than three years, which would require, under

the waiver provision, a one year parole disqualifier as a component

of the sentence.    The State argues that the sentencing judge erred

by failing to consider the criteria set forth in N.J.S.A. 2C:44-

1d to overcome the presumption of imprisonment for second-degree

offenders.       Instead,    he   determined      that   the   presumption     of

imprisonment generally applicable to second-degree crimes did not

apply in the context of a Graves Act waiver.

     We agree with the State that the presumption of imprisonment

for a second-degree offender set forth in N.J.S.A. 2C:44-1d must

be considered as a threshold matter in determining whether, in

approving    a   Graves     Act   waiver,    a   probationary    sentence      is

appropriate or whether a state prison sentence is required.                 In a

decision rendered on April 5, 2017, our Supreme Court so held.

State v. Nance, 228 N.J. 378 (2017).             In that decision, the Court

also set forth the procedural steps that must be followed in

connection with the imposition of a sentence which includes a



                                       3                                A-1921-15T1
Graves Act waiver application.              Those steps were not followed in

these cases.

     Accordingly, on both procedural and substantive grounds, we

reverse the sentences in both cases and remand for resentencing.

                                        I.

                                        A.

     Amber     L.   Spurlin    pled    guilty          to   second-degree     unlawful

possession of a handgun, N.J.S.A. 2C:39-5b.                   This is a Graves Act

offense, and ordinarily would require a State Prison sentence with

a minimum parole disqualifier of forty-two months pursuant to

N.J.S.A. 2C:43-6c.1 Pursuant to a plea agreement, the State agreed

to seek a waiver of the forty-two month parole disqualifier

generally     required   and   recommend             reduction,   under     the    waiver

provision, to one year of parole ineligibility.                        The State also

agreed   to    recommend   that       she       be    sentenced   to    a   base      term

appropriate to a crime one degree lower than the second-degree

crime for which she was convicted, as authorized by N.J.S.A. 2C:44-

1f(2), specifically three years.



1
    Spurlin's crime was committed on August 11, 2013. N.J.S.A.
2C:43-6c was amended by L. 2013, c. 113, § 2, effective August 8,
2013 to increase the minimum Graves Act parole disqualifier
generally required for second-degree crimes from three years to
forty-two months.   Kaczur's crime was committed on November 6,
2010.   Therefore, the Graves Act parole disqualifier generally
applicable to him was three years.

                                            4                                     A-1921-15T1
     The State moved before the assignment judge for approval of

the waiver.      The assignment judge granted the State's motion but

did not decide which of the statutory alternatives, probation or

imprisonment with a reduction of the parole ineligibility term to

one year, should apply when sentencing defendant.              Instead, the

assignment judge left that determination to the sentencing judge.

     The     sentencing   judge   found    the   applicability      of    two

aggravating factors, namely factors (3) the risk that defendant

would commit another offense, and (9) the need for deterrence.

N.J.S.A. 2C:44-1a(3) and (9).       The judge found the applicability

of four mitigating factors, namely factors (2) defendant did not

contemplate serious harm, (7) no prior history, (8) defendant's

conduct was the result of circumstances unlikely to recur, and

(10) amenability to probationary treatment.          N.J.S.A. 2C:44-1b(2),

(7), (8) and (10).      The judge found that based upon a substantial

preponderance of mitigating factors the interest of justice would

be served by imposing a probationary sentence.                 He sentenced

Spurlin    to   three-years   probation   with   a   ten-day   county    jail

component.      The judge stated that he had no objection to Spurlin's

probationary supervision being transferred to her home state of

Florida.

     The judge rejected the State's argument that the serious

injustice criteria for overcoming the presumption of imprisonment

                                    5                               A-1921-15T1
for a second-degree crime, N.J.S.A. 2C:44-1d, was required to be

found as a prerequisite to imposing a non-State Prison sentence.

As we previously stated, the judge was of the view that N.J.S.A.

2C:44-1d was not applicable because the Graves Act waiver provision

superseded it.

                                  B.

     Steven Kaczur pled guilty to second-degree possession of a

firearm while engaged in drug distribution activity, N.J.S.A.

2C:39-4.1.     As in the Spurlin case, the State, by way of plea

agreement, agreed to move for a waiver of the mandatory Graves Act

parole disqualifier which, for Kaczur, would have been three years

pursuant to N.J.S.A. 2C:43-6c, and to recommend a sentence of

three-years imprisonment with a one-year parole disqualifier.

     The State filed a waiver motion with the assignment judge.

As with Spurlin, the assignment judge approved the waiver but did

not choose which available option under the waiver provision should

apply, leaving that determination to the sentencing judge.

     The matter went before the same sentencing judge who sentenced

Spurlin.     The same arguments were made, and the judge again held

that the presumption of imprisonment provision did not apply in a

Graves Act waiver situation.     The judge found the applicability

of aggravating factor (9) the need for deterrence, N.J.S.A. 2C:44-

1a(9).     He found the applicability of mitigating factors (2)

                                  6                          A-1921-15T1
defendant did not contemplate serious harm, (7) lack of prior

record, (8) defendant's conduct not likely to recur, and (10)

amenability to probation.    N.J.S.A. 2C:44-1b(2), (7), (8) and

(10).   The judge found a substantial preponderance of mitigating

factors, thus justifying imposition of a probationary sentence.

He sentenced Kaczur to three-years probation with a seven-day

county jail component.

                               II.

    The Graves Act waiver provision provides:

          On a motion by the prosecutor made to the
          assignment judge that the imposition of a
          mandatory minimum term of imprisonment under
          (a) subsection c. of [N.J.S.A.] 2C:43-6 for a
          defendant   who   has  not   previously   been
          convicted of an offense under that subsection,
          or (b) subsection e. of [N.J.S.A.] 2C:39-10
          for a defendant who has not previously been
          convicted of an offense under chapter 39 of
          Title 2C of the New Jersey Statutes, 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.]


                                  7                        A-1921-15T1
     We first address the procedural issue implicated in these

appeals.    In Nance, the Court made clear that only the assignment

judge (or his or her designee) possesses the authority under the

waiver provision to make the so-called "in-out" decision, that is,

whether in approving a waiver application, the defendant should

receive a State Prison sentence with a reduced period of parole

ineligibility   of   one   year,   or,   alternatively,   a   probationary

sentence:

                 We first consider who—the assignment
            judge or the sentencing judge—is authorized
            by section 6.2 to determine whether the
            defendant will be sentenced to a term of
            probation or a term of incarceration with a
            one-year period of parole ineligibility,
            following the grant of a prosecutor's motion
            for a waiver under section 6.2.     The plain
            language of section 6.2 reveals a clear
            legislative intent that the assignment judge,
            not the sentencing judge, has the statutory
            authority to make such a determination.
            N.J.S.A. 2C:43-6.2.

                 When an application for a waiver under
            section 6.2 is made by motion of a prosecutor,
            the assignment judge or his or her designee
            has the authority to choose one of two
            sentences:    he or she "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." Ibid.      Although the prosecutor
            retains the discretion to decide whether to
            seek a Graves Act waiver in a given case, and
            may argue in favor of a probationary term or
            a custodial sentence with a one-year period
            of ineligibility, nothing in the statute

                                     8                             A-1921-15T1
           suggests that the assignment judge or designee
           must accept the prosecutor's recommendation.
           Ibid.

                Nor   does   section   6.2   permit   the
           sentencing court to choose between the
           statutory alternatives; the authority to elect
           one of the two sentences set forth in section
           6.2 is clearly vested in the assignment judge.
           Ibid.

           [Nance, supra, 228 N.J. at 393-94 (alteration
           in original).]

      In these cases, this procedure was not followed.        Although

the assignment judge approved the waivers in both cases, he

expressly deferred to the sentencing judge the decision of which

available option to choose when fashioning the ultimate sentence.

This was error, and on remand, it is the assignment judge who must

make that initial determination.

      This leads us to the substantive issue implicated in these

appeals.   The State correctly argued before the sentencing judge

in both cases that in making the threshold decision when dealing

with a second-degree crime, the court must consider and apply the

presumption of imprisonment prescribed by N.J.S.A. 2C:44-1d unless

the   extremely   rigorous   criteria   required   to   overcome   that

presumption are met.

      In Nance, the Supreme Court made this requirement abundantly

clear:

           N.J.S.A. 2C:44-1(d) provides:

                                  9                            A-1921-15T1
     The court shall deal with a person
     who has been convicted of a crime
     of the first or second degree . . .
     by   imposing    a   sentence    of
     imprisonment unless, having regard
     to the character and condition of
     the defendant, it is of the opinion
     that his imprisonment would be a
     serious injustice which overrides
     the need to deter such conduct by
     others.

     "The 'serious injustice' exception to the
presumption of imprisonment applies only in
'truly   extraordinary    and    unanticipated
circumstances,'" State v. Jabbour, 118 N.J.
1, 7 (1990) (quoting State v. Roth, 95 N.J.
334, 358 (1984)), "where the 'human cost' of
punishing a particular defendant to deter
others from committing his offense would be
'too great,'" State v. Evers, 175 N.J. 355,
389 (2003) (quoting State v. Rivera, 124 N.J.
122, 125 (1991)).    N.J.S.A. 2C:44-1(d) thus
imposes a high standard that must be overcome
before a first or second-degree offender may
be sentenced to a non-custodial term.

     When, as here, two related statutes are
relevant to the disposition of a matter, they
"should be read in pari materia and construed
together as a unitary and harmonious whole."
Nw. Bergen Cty. Utils. Auth. v. Donovan, 226
N.J. 432, 444 (2016) (quoting Saint Peter's
Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005)
(internal quotation marks omitted)).

     . . . .

     We construe section 6.2 and N.J.S.A.
2C:44-1(d) so as to harmonize the two
components of the Code's sentencing scheme.
Nothing in either provision suggests that a
Graves   Act  waiver   exempts  a   defendant
convicted of a first or second-degree offense

                     10                          A-1921-15T1
           from   the   presumption   of   incarceration.
           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.       N.J.S.A. 2C:44-1(d).
           Because 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:44-1(d), an
           assignment judge or designee may comply with
           section 6.2 and N.J.S.A. 2C:44-1(d) at once.
           By considering the standard of N.J.S.A. 2C:44-
           1(d) in deciding between the probationary and
           custodial sentences authorized by section 6.2,
           an assignment judge or presiding judge [acting
           as an assignment judge's designee] achieves
           the legislative objectives of both provisions.

           [Id. at 395-96.]

     In these cases, the sentencing judge declined to consider the

serious    injustice     standard    of     N.J.S.A.    2C:44-1d,   and     the

assignment judge was of the view that it was not his role to

consider it.     On remand, the assignment judge, or his designee,

must consider this issue and set forth the basis upon which he

decides   that   the    standard    for    overcoming   the   presumption    of

imprisonment has or has not been met.           After the assignment judge

makes the threshold choice between the two waiver options, "[t]he

sentencing court's task is to devise a sentence that comports with

the assignment judge's ruling and the sentencing provisions of the

Code."    Id. at 394.



                                      11                              A-1921-15T1
       The sentences in these cases are reversed and the matters are

remanded for resentencing in accordance with the procedural and

substantive requirements described in this opinion and set forth

with    greater   particularity   in   Nance.   We   do   not    retain

jurisdiction.




                                  12                            A-1921-15T1
