Graves Act Waivers (Part 1)

by | Sep 1, 2020 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On June 15, 2020, a three-judge appellate panel decided the Middlesex County case of State v. Alexander Andrews. The principal issue under N.J.S.A. 2C:43-6.2 involved the Assignment Judge’s comparison of the defendant’s case to similar cases in overruling the State’s rejection on the Graves Act waiver petition.

This was an interlocutory appeal, meaning that the case was being considered before a final disposition was entered in the trial court. The case was argued telephonically on April 19 due to COVID restrictions on in-person appearances.

Judge Gooden-Brown wrote for the Court in relevant part: Here, the State challenges the judge’s methodology, asserting “the trial court’s review of the prosecutor’s Graves Act waiver decision is limited to the case before it for review and does not extend to other similarly-situated defendants.” While the State acknowledges that, consistent with Benjamin, “records must be kept by the prosecutor’s office so the Attorney General and the prosecutor’s office can internally regulate compliance with the Attorney General Directive on Graves Act waiver cases,” the State contends “these records are not maintained so the trial court can perform a comparative analysis or proportionality review of other cases.”

This position is markedly different from the approach adopted by the State in Benjamin, where “the State stressed that because all waiver applications pass through the assignment judge, that judge is in the ‘best position’ to identify discriminatory practices.” Id. at 366. Indeed, because the State is obligated to provide the case-specific files containing its statement of reasons to the assignment judge to consider in assessing the prosecutor’s conduct, we do not read Benjamin as prohibiting the assignment judge from maintaining those files and relying on them in evaluating “the prosecutor’s waiver decisions for arbitrariness and discrimination” as occurred here. Id. at 373. As Justice Albin pointed out in his dissenting opinion, “nothing prevents the judiciary from maintaining the statements of reasons filed with the Assignment Judge in other waiver cases in a central file so that historical information will be available to assignment judges.” Id. at 377-78 (Albin, J., dissenting). Benjamin only prohibits defendants from gaining access to these “Directive-mandated ‘case-specific memorializations,'” not assignment judges whose very roles as the “judicial backstop” to “ensure that prosecutorial discretion is not unchecked” require such access to make an informed determination. Id. at 373.

Middlesex County presently has a reputation for having a prosecutor’s office that takes extreme positions against the accused which differ from the approaches taken by other prosecutor’s offices. This case exemplifies that.