Judge Susswein continued in relevant part: We recognize in the case before us, defendant is alleged to have been involved in the distribution of drugs on more than one occasion, as the prosecutor duly noted with respect to the multiple controlled buys giving rise to the search warrant. Even so, we believe defendant’s minimal prior contact with the criminal justice system–a single conditional discharge in 1990–coupled with his family background, age, and employment history, provides a far better indication of the risk that defendant will commit a future offense. We add that the State did not seek pretrial detention under the Criminal Justice Reform Act based on the risk defendant would commit another offense if released.
We believe that in finding aggravating factor three, the prosecutor essentially conflated the risk that defendant would commit another offense with the need to deter him, and others, from committing a future offense. We therefore agree with the trial court that the prosecutor erred in citing aggravating factor three.
That does not automatically mean, however, that this error warrants overruling the prosecutor’s ultimate decision to reject defendant’s application for a Graves Act waiver. Importantly, the prosecutor explicitly acknowledged defendant’s lack of criminal history and found mitigating factor seven, “the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense”. In this context, we do not believe the prosecutor failed to consider a relevant circumstance within the meaning of the patent and gross abuse of discretion standard of review. Nor did the prosecutor consider an irrelevant or inappropriate factor. At most, the prosecutor erred in citing the repetitive drug transactions and attempted spoilation of evidence–aggravating circumstances to be sure–as a basis for finding aggravating factor three.
This analysis gives insight into how easy it is for the prosecution to avoid committing “a gross and patent abuse of discretion.” Noting consideration of the mitigating circumstances while finding that they do not justify a Graves Act waiver is almost always enough. Still, prosecutors tend to be complacent in light of the significant discretion that the law provides them.