On January 25, 2021, a three-judge appellate panel decided the Middlesex county case of State v. Abner Rodriguez. The principal issue under N.J.S.A. 2C:43-6.2 was whether the State provided an adequate basis for their rejection of the defendant’s Graves Act waiver petition.
Judge Susswein wrote for the panel in relevant part: We next apply these general principles to the comparative analysis undertaken in this case. In sharp contrast to the proceedings in Andrews, here the prosecutor offered specific reasons to explain why defendant is not similarly situated to the defendants who received Graves Act waivers in the three other cases cited by the trial court. The trial court rejected the prosecutor’s analysis, stating only, “this court is not persuaded by the State’s proffered factual distinctions between those cases and the case at hand such that they warrant different treatment in granting of a Graves waiver and, ultimately, sentencing.”
We believe the trial court did not accord sufficient deference to the prosecutor’s assessment of the distinguishing circumstances. The court instead substituted its own judgment for the prosecutor’s. Applying the guiding principles identified in section III, supra, we are satisfied the prosecutor proffered adequate explanations demonstrating the comparison defendants–Olivares, Moses, and Miller–were not similarly situated to defendant Rodriguez, and, therefore, the decisions to grant them Graves Act waivers do not establish that Rodriguez was treated in an arbitrary or discriminatory manner.
Notably, Olivares and Moses both received Graves Act waivers after pleading guilty pursuant to negotiated agreements. In the present case, defendant sought to reduce his Graves Act sentencing without agreeing to cooperate against codefendant Quiles or other persons in the chain of supply of cocaine, and without pleading guilty in exchange for the prosecutor’s agreement to waive the Graves Act mandatory sentence. As we previously noted, defendants who bargained for a Graves Act waiver in exchange for a guilty plea are not similarly situated to defendants who have not pled guilty.
The distinction between defendants who plead guilty and bargain for a waiver and defendants who have not yet pled guilty should not be given much weight. If a defendant like Abner Rodriguez was not willing to plead guilty, he would not be petitioning for a Graves Act waiver in the first place. That is to say, he would not be petitioning for the best available post-guilty plea sentence.
