The Appellate Division concluded with the following: It is evident the prosecutor’s chief concern was the need for deterrence based on the nature and seriousness of the offense conduct. N.J.S.A. 2C:44-1(a)(9) (“the need for deterring the defendant and others from violating the law”). It also is evident the prosecutor believed the aggravating circumstances reflected in the offense conduct outweighed the mitigating circumstances reflected in defendant’s lack of criminal history, family background, and gainful employment, all of which the prosecutor acknowledged. Given the qualitative nature of the weighing process, we do not believe the prosecutor’s decision would have been different had aggravating factor three not been cited. Nor do we believe the prosecutor’s misapplication of that aggravating factor constitutes an error of judgment and resultant abuse of discretion of such magnitude and impact as to justify overruling the prosecutor’s Graves Act waiver decision.
We conclude our analysis with the observation that, as in Andrews, we believe “within the constellation of Graves Act cases,’ this one is ‘deserving of some leniency.” While we might have reached a different conclusion than the prosecutor if it was our decision to make in the first instance, and while we appreciate and respect the concerns raised by the trial judge, who was committed to conducting a thorough and robust review as required by Alvarez, Benjamin, and Andrews, we do not believe defendant established a patent and gross abuse of prosecutorial discretion. We therefore are constrained to reverse and vacate the order overruling the prosecutor’s decision to reject defendant’s request for a Graves Act waiver. Nothing in this opinion shall be construed to limit the parties from engaging in plea negotiations that might yet result in a Graves Act waiver.
Reversed and remanded. We do not retain jurisdiction.
Another option that the Appellate Division had was to remand the case for further consideration in light of the prosecutor’s error in citing to aggravating factor 3. As it stands, the defendant and the trial judge whose decision was reversed, likely take little comfort in the panel’s statements that they might have reached a different decision if it was theirs to make.