                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0198-17T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ROBERT F. BILLARD,

     Defendant-Appellant.
______________________________

                   Argued January 10, 2019 – Decided July 26, 2019

                   Before Judges O'Connor and Whipple.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 15-03-
                   0361.

                   Steven D. Altman argued the cause for appellant
                   (Benedict & Altman, attorneys; Steven D. Altman and
                   Joshua David Altman, on the brief).

                   Patrick F. Galdieri, II, Assistant Prosecutor, argued the
                   cause for respondent (Andrew C. Carey, Middlesex
                   County Prosecutor, attorney; Patrick F. Galdieri, II, of
                   counsel and on the brief).

PER CURIAM
      A jury convicted defendant Robert F. Billard of second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b). He was sentenced to a five-year

term of imprisonment with a forty-two month period of parole ineligibility. He

now appeals from his sentence. We affirm.

      Defendant did not provide a copy of the trial transcript, but it is not

disputed the following evidence was adduced during the trial. In October 2014,

defendant was pulled over while driving in Middlesex because a police officer

of the Middlesex Police Department observed him talking on a cell phone. The

officer ran a Motor Vehicle Commission check on the vehicle defendant was

driving and discovered the plates were registered to a different vehicle. After

issuing motor vehicle summonses to him, the officer advised defendant the

vehicle he had been driving was going to be impounded.

      Defendant called his mother, who agreed to pick him up and take him

home. Because his mother was going to be accompanied by his two young

nieces and defendant did not want the girls to see him with the police, one of the

officers offered to give defendant a ride to the corner of the street. Before

getting into the patrol car, the officer advised defendant he would have to be

patted down. Defendant agreed and told the officer he did not have any weapons

on him.


                                                                         A-0198-17T2
                                        2
      Upon patting him down, the officer found a .45 caliber semi-automatic

pistol in defendant's waistband. The officer took possession of the gun and

placed defendant under arrest.     The gun was loaded with a live round of

ammunition in its chamber and a magazine containing seven additional rounds.

Although defendant had a valid firearms-purchaser identification card and a

permit to purchase a handgun, he did not have a permit to carry one.

      A Middlesex County grand jury indicted defendant on one count of

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). As

stated, defendant was convicted of this charge and sentenced to a five-year term

of imprisonment with a forty-two month period of parole ineligibility.

      N.J.S.A. 2C:43-6(c) requires a mandatory term of imprisonment for

individuals convicted of various firearm-related crimes, including unlawful

possession of a weapon. In pertinent part, N.J.S.A. 2C:43-6(c) states that "[t]he

term of imprisonment shall include the imposition of a minimum term" which

"shall be fixed at one-half of the sentence imposed by the court or [forty-two]

months, whichever is greater . . . ." Ibid. However, there is an "escape valve"

to the mandatory sentence requirements. State v. Alvarez, 246 N.J. Super. 137,

139 (App. Div. 1991). This "escape valve" provides that:

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

                                                                         A-0198-17T2
                                       3
            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 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 term.

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

      Thus, "[t]he relief that section 6.2 affords can arise in two ways: either the

prosecutor makes a motion to the assignment judge for a waiver of the

mandatory minimum penalty, or the sentencing judge refers the matter to the

assignment judge if the prosecutor approves the referral." State v. Benjamin,

228 N.J. 358, 368-69 (2017) (citing N.J.S.A. 2C:43-6.2).

      If the prosecutor decides not to approve the use of the "escape valve," a

defendant may move "'before the assignment judge or designated 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 (quoting State v. Cengiz, 241 N.J. Super. 482, 497-98 (App. Div. 1990)).


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                                         4
A defendant "must make a showing of arbitrariness constituting an

unconstitutional discrimination or denial of equal protection constituting a

'manifest injustice,'" and the assignment judge must determine if a hearing is

warranted "in the interests of justice." Id. at 148-49.

      Here, defendant had not been previously convicted of a firearm- related

offense. Just before sentencing, defendant requested but the prosecutor declined

to waive the requirement that he serve the mandatory minimum term of

imprisonment under N.J.S.A. 2C:43-6(c). Defendant then filed a motion before

the sentencing judge requesting he refer the matter to the assignment judge, so

that such judge could determine if the prosecutor's refusal to waive the

mandatory minimum term of imprisonment was grossly arbitrary or capricious

or a patent abuse of discretion.

      The sentencing judge denied defendant's motion because, among other

reasons, the prosecutor did not consent to him referring the matter to the

assignment judge, as required by N.J.S.A. 2C:43-6.2, and the assignment judge

had not made the sentencing judge his designee. For reasons not revealed in the

record, defendant did not move before the assignment judge to obtain relief from

the prosecutor's refusal to waive the mandatory minimum term.

      On appeal, defendant argues the following:


                                                                        A-0198-17T2
                                        5
           POINT I: THE DENIAL OF A POST-TRIAL
           GRAVES ACT WAIVER CONSTITUTED AN
           ARBITRARY DECISION AND THE FAILURE TO
           CONDUCT AN ALVAREZ HEARING REQUIRES A
           REVERSAL OF THE SENTENCE.

                 A. THE STATE'S REJECTION OF THE
                 POST-TRIAL GRAVES ACT WAIVER WAS
                 IMPERMISSIBILY ARBITRARY AND THE
                 REJECTION WAS BASED UPON
                 DEFENDANT'S EXERCISE OF HIS
                 CONSTITUTIONAL RIGHT TO PROCEED
                 TO TRIAL.

                 B. ROBERT BILLARD HAS ESTABLISHED
                 THAT THE DENIAL OF THE WAIVER –
                 POST-TRIAL – IS ARBITRARY AND IS
                 ENTITLED TO A HEARING BEFORE THE
                 ASSIGNMENT JUDGE.

           POINT II: ROBERT BILLARD WAS DENIED DUE
           PROCESS AND FUNDAMENTAL FAIRNESS
           BECAUSE HE WAS FORCED TO STAND TRIAL
           DESPITE ACCEPTING A PLEA OFFER BUT
           REASONABLY SEEKING ADDITIONAL TIME TO
           COMPLY WITH ITS TERMS. (Not Raised Below).

     We reject defendant's contentions. He sought relief from the prosecutor's

decision to not waive the mandatory minimum term but, instead of filing a

motion before the assignment judge, defendant filed one before the sentencing

judge, who was without authority to grant the relief defendant sought. See

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

     Affirmed.

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