On January 18, 2022, a three-judge appellate panel decided the Union County case of State v. Diego Arroyo-Nunez. The principal issue concerned whether the Attorney General’s Directive eliminating mandatory parole ineligibility for non-violent drug offenders was consistent with the Legislature’s enactment of N.J.S.A. 2C:35-12.
The Appellate Division held in relevant part: In short, the motion judge misconstrued the authority of the State to enter into post-conviction agreements with defendants under the CDRA to modify mandatory parole ineligibility periods. Her conclusion that the CDRA generally limited such post-conviction agreements to situations in which a defendant cooperated with law enforcement reflected a crabbed interpretation of the power the Legislature bestowed upon prosecutors in Section 12 and was inconsistent with the actual text as subsequently interpreted by the Court. And, the judge’s focus on the punitive aspects of the CDRA, evident in statements made by the Legislature when the statute was enacted decades ago, accorded greater import to punishment of drug offenders through mandatory periods of incarceration than subsequent statements of legislative intent that question those original 1987 policy judgments.
We acknowledge that “as the State’s chief law enforcement officer, the Attorney General has broad authority over criminal justice matters that derives from several sources.” In re Att’y Gen. Law Enf’t Dir. Nos. 2020-5 and 2020-6 (2021). If nothing else, however, our prior discussion demonstrates the unfettered exercise of prosecutorial discretion in sentencing, even when acquiesced to by a defendant, is not immune from judicial review. Although sentencing discretion is shared to some extent among the three branches of government, the determination of the sentence is committed to the discretion of the judiciary. See also R. 3:21-10(a) (permitting the court “on its own initiative” to reduce or modify a sentence). We turn our attention, therefore, to the Rule, and questions of first impression, i.e., what is good cause for modifying a sentence upon joint application of the State and a defendant, and what standard of review applies in reviewing the motion court’s decision?
The “crabbed interpretation” attribute to the motion judge was most likely authored by the Union County Assistant Prosecutor handling the case. More times than not, courts simply adopt and repackage the motion arguments submitted by the prosecution.