The Appellate Division continued in relevant part: Additional distinguishing circumstances further demonstrate the State did not abuse its discretion by treating defendant differently from Olivares and Moses. In Olivares, the firearm was found in the common area of a house the defendant shared with two other codefendants, both of whom pled guilty to possession of the gun and the illicit drugs that were also found in the home. In the present case, defendant does not dispute he owned the firearm, claiming he kept it for self-defense.
Although we accord substantial deference to the prosecutor’s assessment of aggravating and mitigating circumstances, there is, however, one aggravating factor found by the prosecutor that gives us pause. The prosecutor found aggravating factor three–the risk that defendant will commit another offense. This determination was based on defendant’s involvement in the multiple controlled buys and his flight when police approached to execute the search warrant. We do not doubt that both of those circumstances are relevant in assessing defendant’s culpability, but not because they indicate defendant is likely to commit a new crime following the resolution of the pending charges.
For purposes of applying the patent and gross abuse of discretion standard, a clear error of judgment “is one that is ‘based on appropriate factors and rationally explained,’ but ‘is contrary to the predominant views of others responsible for the administration of criminal justice.'” In State v. Torro, we held the sentencing judge improperly identified the likelihood that defendant would commit another offense as an aggravating factor. (App. Div. 1988). We reasoned, the fact that defendant had been gainfully employed for over two years, had no prior criminal record, and was a respected member of his community militate against this conclusion. Furthermore, neither the trial record nor the presentence report indicate that defendant was involved in the distribution of drugs on more than one occasion.
Judge Susswein was a career prosecutor before being appointed by Governor Christie. The decades that he spent having his prosecutorial decisions protected by the “the gross and patent abuse of discretion” standard likely influenced his decision in this case. His analysis regarding aggravating factor 3 was likely intended to avoid a subsequent sentencing appeal after this case is remanded to the trial court.
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