Tanco-Brito also involved a violent offense wherein the defendant threatened the victim while pointing a handgun at him. Id. at 2. Moreover, the trial judge downgraded defendant’s conviction from a second-degree offense to a third-degree offense and placed the defendant on probation, as opposed to imposing a prison sentence. There, the trial court’s required finding for the downgrade under 2C:43-6.2, a finding that was endorsed by the appellate panel was, that the prosecutor’s decision not to endorse the application for probation was “arbitrary, capricious, or unduly discriminatory.” See State v. Mastapeter, 290 N.J. Super. 56, 64-65 (App. Div. 1996), certif. den. 146 N.J. 569 (1996); State v. Miller, 321 N.J. Super. 550, 555 (Law Div. 1999).
With regard to the trial court’s compelling reasons “in addition to the mitigating factors” that justified the downgraded sentence, the Tanco-Brito Appellate Court held that “Judge Bariso found that the mitigating factors substantially outweighed the aggravating factors, and independently determined that defendant satisfied the interest of justice prong. He stated that in applying the interest of justice standard there are compelling reasons to downgrade defendant’s sentence. First, as mentioned above defendant’s criminal history solely consists of a minor drug possession charge and does not demonstrate a discernible propensity for violence, especially with firearms. Therefore, his unlawful possession of a handgun seems out of character.” Id. at 12.
It is noteworthy that the Tanco-Brito Court endorsed the lack of a discernible propensity for violence related to Tanco-Brito’s lack of a prior record as a “compelling reason in addition to” mitigating factor seven (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 offense), which was also found by the Tanco-Brito trial court. Id. at 14.
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