STATE OF NEW JERSEY v. KENNETH WARDRICK, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH WARDRICK, JR., a/k/a

ANDRE WILLIAMS,

Defendant-Appellant.

__________________________________________

July 17, 2015

Submitted May 19, 2015 Decided

Before Judges Fisher and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-03-0557.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Kenneth Wardrick, Jr., appeals his conviction for second-degree unlawful possession of a handgun. We affirm.

On December 19, 2010, two Newark police officers were in an undercover vehicle outside a bar located at South 13th Street and Springfield Avenue. A crowd gathered in front of the bar where vehicles were illegally double-parked. The officers approached a parked Ford Expedition blocking traffic. The officers illuminated the interior of the vehicle with flashlights upon which one officer yelled gun, gun. Defendant, the sole occupant of the vehicle, was observed dropping something to the floor. Defendant was handcuffed and removed from the vehicle. A .40 caliber Smith and Wesson handgun, loaded and operable, was recovered from the floorboard of the driver s side of the vehicle. Defendant did not have a permit for the handgun.

The Essex County Grand Jury indicted defendant on one count of second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b. After a trial before a jury, defendant was convicted on the charge. Defendant was sentenced to six years in state prison subject to a forty-month parole disqualifier.

On appeal, defendant argues the following

POINT I

DEFENDANT SHOULD HAVE BEEN GRANTED A GRAVES ACT WAIVER, OR, ALTERNATIVELY, HE SHOULD HAVE BEEN SENTENCED IN ACCORDANCE WITH ATTORNEY GENERAL GUIDELINES PROVIDING UNIFORMITY. (Not Raised Below).

Pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), any person convicted of the unlawful possession of a firearm, N.J.S.A. 2C:39-5(b), "shall be sentenced to a term of imprisonment . . . ." At all times relevant to the facts in this case, the Graves Act further required that "[t]he term of imprisonment shall include the imposition of a minimum term[,] . . . fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . during which the defendant shall be ineligible for parole." N.J.S.A. 2C:43-6(c). The escape valve provision of N.J.S.A. 2C:43-6.2 states

that where a defendant has not been previously convicted of a Graves Act offense, and where the . . . mandatory minimum "does not serve the interests of justice," the prosecutor may move before the Assignment Judge for a reduced mandatory minimum term of one year, or to place the defendant on probation with the condition of a jail term pursuant to N.J.S.A. 2C:43-2(b)(2).

[State v. Watson, 346 N.J. Super. 521, 535 (App. Div. 2002), certif. denied, 176 N.J. 278 (2003).]

Defendant argues we should remand to allow him to seek prosecutorial consent for an exception to the mandatory minimum under N.J.S.A. 2C:43-6.2. Prior to the trial, the State offered to seek the exception in return for defendant's guilty plea. Despite the State's inclusion of the "escape valve" in the plea offer, defendant rejected the offer. At his sentence, defendant did not address the issue of the "escape valve." State v. Alvarez, 246 N.J. Super. 137, 140 (App. Div. 1991); State v. Mastapeter, 290 N.J. Super. 56, 64-65 (App. Div.), certif. denied, 146 N.J. 569 (1996).

Under the Attorney General Directive to Ensure Uniform Enforcement of the "Graves Act," ("Directive") published on October 23, 2008 and corrected on November 25, 2008, if the defendant does not accept an initial plea offer containing the exception, the prosecutor "shall not" agree to the exception, even if the defendant subsequently pleads guilty, unless the prosecutor determines the mitigating factors substantially outweigh the aggravating factors. The Directive also provides that the prosecutor "shall not" agree to the exception "after a defendant has been convicted at trial except for the defendant's substantial cooperation in the investigation or prosecution of another." None of these conditions for agreement by the prosecutor were satisfied here.

When a prosecutor does not agree to the exception "a defendant must make a showing that 'the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the "interests of justice" warrant reference to the Assignment Judge' for sentencing under the 'escape valve.'" Mastapeter, supra, 290 N.J. Super. at 65 (citation omitted). Here, when considering the plea offer extended to defendant and the Directive, we find no basis to conclude the prosecutor's "decision was arbitrary and amounted to unconstitutional discrimination or denial of equal protection." Watson, supra, 346 N.J. Super. at 535.

Defendant exercised his right to reject the State's plea offer, which included the "escape valve," and proceeded to trial. Now convicted, his argument that he should be permitted to evade the consequences of his decision is wholly without merit.

Affirmed.