The Appellate Division continued in relevant part: The State argues further that the judge’s “quasi-proportionality analysis was fatally flawed” because “the prosecutor was unfamiliar with those unrelated cases,” “was not given a meaningful opportunity to address the court’s concerns based on its comparisons,” and “the other-cited cases were poor candidates for comparison.” During the December 18, 2018 oral argument, the judge extensively questioned the prosecuting attorney about her office treating “similarly situated people differently,” noting, in particular, that her office had granted Graves waivers “to people with more significant prior contact with the system” than defendant. The prosecuting attorney responded she did not “know how those other defendants were situated” or “the specific facts of those cases.” The judge’s decision was not rendered until October 21, 2019. Between oral argument and the issuance of the judge’s decision, the prosecutor failed to respond to the judge’s concerns, despite the fact that the State had access to “all case-specific memorializations” based on its obligation to maintain “a separate cumulative file” to facilitate Attorney General audits. Benjamin, at 370 (quoting the Directive at 14). Presumably, the State had access to the same materials considered by the judge.
Additionally, in the judge’s written statement of reasons, the judge identified three specific cases upon which he relied to support his conclusion that the prosecutor’s denial of the Graves waiver in this case was arbitrary and discriminatory. While the State asserts on appeal that these cases are “poor candidates for comparison,” the State neither moved for reconsideration before the trial court, see State v. Puryear, (App. Div. 2015) (acknowledging that motions for reconsideration are permitted in criminal matters), nor substantively argues on appeal the basis for its bald conclusion. Instead, the State simply describes the judge’s analysis “as cursory.” On the contrary, we are satisfied that the judge’s robust review and analysis were sound, and fulfilled the role contemplated in Benjamin, to “ensure that prosecutorial discretion is not unchecked.” Indeed, while we do not deprecate the seriousness of the crimes, we agree with the judge’s implicit finding that “within the constellation of Graves Act cases,” this one is “deserving of some leniency.” State v. Mello (App. Div. 1997).
The County Assignment Judge often delegates these decisions to the county’s criminal presiding judge. Assignment judges tend to deal more with administrative matters while criminal presiding judges deal more with substantive decisions.
