STATE OF NEW JERSEY VS. ANTHONY ENRICOÂ (15-10-1396, BERGEN COUNTY AND STATEWIDE)
A-3933-16T3
| N.J. Super. Ct. App. Div. | Aug 7, 2017|
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3933-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY ENRICO,
Defendant-Appellant.
_______________________________
Submitted July 11, 2017 – Decided August 7, 2017
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
15-10-1396.
Galantucci, Patuto, DeVencentes, Potter &
Doyle, LLC, attorneys for appellant (David J.
Altieri, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent.
PER CURIAM
The Supreme Court has remanded this Graves Act motion for
leave to appeal for our reconsideration on the merits. By way of
background, a Bergen County grand jury charged defendant Anthony
Enrico in a single-count indictment with unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b). The sentencing provision for this
second-degree crime requires the court to impose a term of
imprisonment that includes a period of parole ineligibility, which
"shall be fixed at one-half the sentence imposed by the court or
42 months, whichever is greater." N.J.S.A. 2C:43-6(c).
The Legislature provided "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). The
exception is contained in N.J.S.A. 2C:43-6.2. This statute
requires either that the prosecutor make a motion to the assignment
judge, or the sentencing judge may, with the prosecutor's consent,
refer the matter to the assignment judge. The statute authorizes
the assignment judge to place the defendant on probation or to
reduce the period of parole ineligibility to one year.
In Benjamin, the Court determined that adequate procedural
safeguards exist in the Graves Act, which delegates sentencing
discretion to prosecutors. Supra, 228 N.J. at 371-72. That is so because "written guidelines exist to channel prosecutorial discretion."Id. at 372.
Prosecutors are required by a Directive
issued by the Attorney General to "document in the case file
[their] analysis of all the relevant aggravating and mitigating
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circumstances, even if a Graves Act waiver is not being sought."
Ibid. (alteration in original) (citation omitted). Defendants are "able to seek judicial review of prosecutors' waiver decisions."Ibid. In the case
before us, following defendant's indictment, the
prosecutor initially decided not to seek a Graves Act waiver.
Defendant requested the prosecutor provide written reasons for
that decision as well as other waiver case files containing the
aggravating and mitigating factors the prosecutor considered. The
prosecutor refused to comply with defendant's request, but
extended another plea offer in which he agreed to recommend a
five-year custodial term with a twelve-month period of parole
ineligibility. The trial court conducted oral argument on
defendant's discovery demands and thereafter denied both
defendant's motion to compel discovery and his motion to compel
the prosecutor to provide "written reasons for withholding consent
to waiver [of] the custodial sentence of the Graves Act."
Defendant filed a motion for leave to appeal. We denied
defendant's motion in a September 15, 2016 order. On April 5,
2017, the Supreme Court decided Benjamin. On May 16, 2017, in the
case now before us, the Supreme Court granted defendant's motion
for leave to appeal and summarily remanded the matter to us to
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reconsider the merits of the motion in light of Benjamin. State
v. Enrico, ___ N.J. ___ (2017).
Defendant raised two points in his motion for leave to
appeal:1
POINT I
LEAVE TO APPEAL SHOULD BE GRANTED TO REVIEW
THE COURT'S FINDING THAT THE STATE IS NOT
REQUIRED TO PROVIDE OTHER GRAVES ACT WAIVER
FILES BECAUSE THE ISSUE IS CURRENTLY UNDER
REVIEW BY THE NEW JERSEY SUPREME [COURT].
POINT II
LEAVE TO APPEAL SHOULD BE GRANTED TO REVIEW
THE COURT'S FINDING THAT THE STATE IS NOT
REQUIRED TO PROVIDE WRITTEN REASONS FOR
WITHHOLDING CONSENT TO WAIVER OF A MANDATORY
MINIMUM SENTENCE OF THE GRAVES ACT.
In Benjamin, the Supreme Court stated:
We agree with the Appellate Division
that, when denying a Graves Act waiver, the
prosecutor must provide the defendant with a
statement of reasons. However, we hold that
defendants are not entitled to discovery of
the prosecution's files for cases in which
Graves Act waivers have been granted to other
defendants.
[Supra, 228 N.J. at 361.]
1
After the Supreme Court issued its remand order, we permitted
the parties to file supplemental briefs addressing Benjamin,
supra,228 N.J. 358
. Defendant did not submit a supplemental
brief. Consequently, it was unnecessary for the State to submit
a response.
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In view of the Supreme Court's holding, we reverse that part
of the trial court's order denying defendant's application to
compel the prosecutor to provide written reasons for its decision.
Providing a defendant with such reasons is one of the procedural
safeguards that renders valid the delegation of sentencing
discretion. Id. at 372. We remand this matter for the prosecutor
to provide, within thirty days, a statement of reasons. Either
party may pursue appropriate review after the prosecutor has issued
the written statement of reasons.
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
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