STATE OF NEW JERSEY v. RICARDO PEREZ
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0459-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICARDO PEREZ,
Defendant-Appellant.
________________________________________
Argued December 19, 2017 – Decided February 15, 2018
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
15-10-1441.
Daniel S. Rockoff, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, attorney; Daniel S.
Rockoff, of counsel and on the brief).
Kerry J. Salkin, Assistant Prosecutor, argued
the cause for respondent (Esther Suarez,
Hudson County Prosecutor, attorney; Kerry J.
Salkin, on the brief).
PER CURIAM
After his motions for admission to pre-trial intervention
(PTI) and to suppress evidence were denied, defendant pled guilty
to possession of a .32 caliber handgun without a permit, contrary
to
N.J.S.A. 2C:39-5(b)(1), a second-degree offense. The trial
court thereafter sentenced defendant to five years of
incarceration, with a one-year period of parole ineligibility.
Defendant appeals from the judgment of conviction entered by the
trial court on August 25, 2016. We affirm.
I.
On May 21, 2015, Jersey City Police Officers Omar Aly and
Daniel Mundo were on patrol in the area of Bramhall Avenue and
Sackett Street of Jersey City, responding to civilian complaints
of disorderly groups, drug dealing, and shots being fired in the
area. While on parole, the officers observed defendant speak with
an individual at the door to a residence on Bramhall Avenue. The
individual was later identified as defendant's cousin, C.N.1
The officers said that during this discussion, defendant
opened his backpack to show C.N. what was inside. The two men then
walked towards Kennedy Boulevard. The officers followed them
because they suspected defendant was in possession of narcotics.
Eventually, the officers observed defendant remove his backpack.
1
We use initials to protect this individual's identity.
2 A-0459-16T3
According to Aly, defendant opened the bag, partially removed the
handle of a black handgun, and immediately placed the gun back in
the bag. Defendant closed the bag, placed the bag back on his
shoulder, and continued walking.
The officers requested backup, and at the corner of Clendenny
Avenue and Kennedy Boulevard, they drove onto the sidewalk and
exited their vehicle. They approached defendant and C.N. They
searched his backpack, found the gun, and placed him under arrest.
Defendant later gave a statement to the police explaining how and
where he obtained the weapon and the person from whom he obtained
the weapon. Defendant also explained why he was transporting the
gun.
Defendant was charged with second-degree possession of a
handgun without a permit, contrary to
N.J.S.A. 2C:39-5(b).
Defendant thereafter submitted an application for admission to
PTI. The assistant criminal division manager (CDM) in Hudson County
denied defendant's application, and on November 20, 2015, an
assistant prosecutor issued a letter stating that the county
prosecutor agreed with that decision.
Defendant filed a motion seeking his admission to PTI over
the State's objection. On March 2, 2016, Judge Mark J. Nelson
considered the motion and placed his decision on the record. The
judge noted that defendant had been charged with a second-degree
3 A-0459-16T3
offense, and there was a presumption against his admission to PTI.
The judge found that the prosecutor had considered the relevant
factors, and the prosecutor's decision was not a patent or gross
abuse of discretion. The judge entered an order dated March 2,
2016, denying the motion.
In addition, on March 21, 2016, Judge Nelson heard oral
argument on defendant's suppression motion. The judge then placed
his decision on the record. The judge determined the motion should
be denied and entered an order memorializing his decision.
On April 18, 2016, defendant pled guilty to second-degree
possession of a weapon without a permit. The State submitted an
application to the court pursuant to
N.J.S.A. 2C:43-6.2 for an
exemption from the mandatory minimum term required by
N.J.S.A.
2C:43-6(c). The State recommended a five-year prison term, with
one-year of parole ineligibility. Judge Sheila A. Venable entered
an order granting the application.
Defendant then filed a motion with the Assignment Judge
seeking a probationary sentence. On June 17, 2016, Assignment
Judge Peter F. Bariso filed an order denying the motions for the
reasons set forth in an accompanying statement of reasons.
Defendant appeared for sentencing before Judge Venable on August
25, 2016. The judge sentenced defendant in accordance with the
4 A-0459-16T3
plea to a term of five years of incarceration with one year of
parole ineligibility. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED BY DECLINING TO ADMIT
[DEFENDANT], A FIRST-TIME OFFENDER, INTO PTI.
AMONG SEVERAL REASONS THIS COURT SHOULD
REVERSE, THE PROSECUTOR AND CRIMINAL DIVISION
MANAGER FALSELY ALLEGED [DEFENDANT] HAD A
DOZEN ARRESTS AND THREE DISORDERLY-PERSONS
CONVICTIONS, [WHEREAS DEFENDANT] HAD NEITHER
. . . .
POINT II
THE ASSIGNMENT JUDGE IMPERMISSIBLY SENTENCED
[DEFENDANT] TO PRISON WITHOUT A HEARING. U.S.
Const., amends. V, VI, XIV; N.J. Const., art.
I, ¶¶ 1, 9, 10; R. 3:21-4(b). . . .
POINT III
THE PRESIDING JUDGE, AT THE ONLY HEARING
ACTUALLY HELD, FOUND FOUR SIGNIFICANT
MITIGATING FACTORS, AND ONLY ONE NEGLIBLE
AGGRAVATING FACTOR, BUT DETERMINED THE
ASSIGNMENT JUDGE HAD LEFT HER "NO CHOICE."
THIS COURT SHOULD REMAND TO THE PRESIDING
JUDGE FOR A QUALITATIVE ANALYSIS NOT BOUND BY
THE ASSIGNMENT JUDGE'S PRONOUNCEMENT OF
SENTENCE WITHOUT A HEARING. . . .
POINT IV
ALTERNATIVELY, THIS COURT SHOULD REMAND TO THE
ASSIGNMENT JUDGE, WHO ALSO ERRED, WHEN
SENTENCING [DEFENDANT] ON THE PAPERS, BY (1)
MISINTERPRETING
N.J.S.A. 2C:43-6.2, (2)
FAILING TO FIND THREE MITIGATING FACTORS
SUBSEQUENTLY FOUND BY THE PRESIDING JUDGE, AND
(3) ENGAGING IN DISPARATE TREATMENT. . . .
5 A-0459-16T3
II.
We turn first to defendant's contention that the trial court
erred by denying his motion for admission to PTI. He contends the
prosecutor's decision was a patent and gross abuse of discretion.
We disagree.
PTI is a "diversionary program through which certain
offenders are able to avoid criminal prosecution by receiving
early rehabilitative services expected to deter future criminal
behavior." State v. Roseman,
221 N.J. 611, 621 (2015) (quoting
State v. Nwobu,
139 N.J. 236, 240 (1995)). Acceptance into PTI is
dependent upon an initial recommendation by the CDM and the
prosecutor's consent. Ibid. "The assessment of a defendant's
suitability for PTI must be conducted under the Guidelines for PTI
provided in Rule 3:28, along with consideration of factors listed
in N.J.S.A. 2C:43-12(e)." Ibid.
The decision to admit a defendant to PTI is a
"quintessentially prosecutorial function." Id. at 624 (citing
State v. Wallace,
146 N.J. 576, 582 (1996)). Therefore, the
prosecutor's decision to grant or deny a defendant's PTI
application is entitled to great deference. Ibid. (citing State
v. Leonardis,
73 N.J. 360, 381 (1977)). A trial court may overrule
a prosecutor's PTI determination only when the circumstances
"clearly and convincingly establish that the prosecutor's refusal
6 A-0459-16T3
to sanction admission into the program was based on a patent and
gross abuse of . . . discretion." Id. at 624–25 (quoting Wallace,
146 N.J. at 582).
To establish a patent and gross abuse of discretion, a
defendant must show that the prosecutor's decision "(a) was not
premised upon a consideration of all relevant factors, (b) was
based upon a consideration of irrelevant or inappropriate factors,
or (c) amounted to a clear error in judgement" and that "the
prosecutorial error complained of will clearly subvert the goals
underlying [PTI]." Id. at 625 (citing State v. Bender,
80 N.J. 84,
93 (1979)). The prosecutorial decision must be "so wide of the
mark sought to be accomplished by PTI that fundamental fairness
and justice require judicial intervention." Wallace,
146 N.J. at
583 (quoting State v. Ridgway,
208 N.J. Super. 118, 130 (Law Div.
1985)).
Here, Judge Nelson correctly found that the prosecutor's
decision to deny defendant's application for admission to PTI was
not a patent and gross abuse of discretion. The judge noted that
Guideline 3(i)(3) provided, among other things, that a defendant
charged with a second-degree offense ordinarily should not be
considered for enrollment in PTI. Pressler & Verniero, Current
N.J. Court Rules, cmt. on R. 3:28 (2018); see also Roseman,
221 N.J. at 622. The guideline creates a "presumption against
7 A-0459-16T3
acceptance" into PTI. State v. Watkins,
193 N.J. 507, 520 (2008)
(quoting State v. Baynes,
148 N.J. 434, 442 (1997)).
To overcome the presumption, the defendant must present
"compelling reasons" for admission to PTI. Ibid. (quoting Nwobu,
138 N.J. at 252). Here, defendant was charged with possession of
a handgun, which is a second-degree offense, and he failed to show
compelling reasons for his admission to PTI.
Defendant argues, however, that the prosecutor failed to
consider all relevant factors in evaluating his eligibility for
PTI. Although the assistant prosecutor did not discuss all
seventeen factors in the decision denying PTI admission, the court
must "presume that a prosecutor considered all relevant factors,
absent a demonstration by the defendant to the contrary." State
v. Waters,
439 N.J. Super. 215, 233 (App. Div. 2015) (quoting
Wallace,
146 N.J. at 584). Defendant did not rebut that
presumption. Thus, the trial court properly found that the
"prosecutor and the criminal division [considered] all of the
[appropriate] factors."
Defendant further argues that the assistant prosecutor relied
on inappropriate factors in denying his application. The State
acknowledges that the assistant prosecutor and CDM erroneously
alluded to defendant's dismissed charges in their respective
decisions. However, the error was harmless. As the judge noted in
8 A-0459-16T3
his decision, in denying admission to PTI, the assistant prosecutor
had not relied on defendant's prior criminal record. Indeed, the
judge stated that this was defendant's first offense and presumably
his first arrest.
The judge found that the prosecutor had properly given weight
to factor one (the nature and circumstances of the offense).
N.J.S.A. 2C:43-12(e)(1). As stated previously, unlawful possession
of a handgun, contrary to
N.J.S.A. 2C:39-5(b)(4), is a second-
degree offense. The judge also found that the prosecutor properly
considered factor two (the facts specific to this case).
N.J.S.A.
2C:43-12(e)(2). The judge noted that defendant had been carrying
a loaded gun on the street in Jersey City. Defendant did not have
a permit allowing him to possess the weapon.
The judge further found that the prosecutor had properly
considered factors seven (the needs and interests of the victims
and society); fourteen (the nature of the crime and whether the
value of supervisory treatment would be outweighed by the public
need for prosecution); and seventeen (the harm done to society by
abandoning criminal prosecution).
N.J.S.A. 2C:43-12(e)(7), (14),
and (17). The record supports the judge's findings.
Defendant also argues that the assistant prosecutor erred by
relying upon factor ten (whether defendant was charged with a
violent offense),
N.J.S.A. 2C:43-12(e)(10). He argues that the
9 A-0459-16T3
failure to get a license to possess a handgun is not a violent
act. He notes that the State has not alleged he used the weapon,
and no individual was shot or threatened with the gun.
As the trial court recognized, however, possession of a loaded
weapon on the streets in Jersey City created a danger that members
of the public may be harmed. Even if the prosecutor erred by
considering this factor, the decision to deny defendant admission
to PTI is amply justified by the other factors that the prosecutor
relied upon.
We are therefore convinced that the trial court correctly
determined that the prosecutor's decision to deny defendant's
application for admission to PTI was not a patent and gross abuse
of discretion. We affirm the court's order denying defendant's
motion.
III.
Defendant contends he was denied due process because Judge
Bariso decided his motion for a probationary sentence without a
hearing. Defendant contends he had the right to be present and to
be heard when the judge ruled on the motion.
The Graves Act was enacted as "a direct response to a
substantial increase in violent crime in New Jersey," and provides
for the imposition of a mandatory minimum term of incarceration
and parole ineligibility for an offender "who uses or possesses a
10 A-0459-16T3
firearm while committing, attempting to commit, or fleeing after
the commission of certain designated crimes." State v. Nance,
228 N.J. 378, 384, 390 (quoting first State v. Des Marets,
92 N.J. 62,
68 (1983); then State v. Robinson,
217 N.J. 594, 607 (2014)). The
mandatory minimum term is "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).
However,
N.J.S.A. 2C:43-6.2 provides that when a defendant
has not been previously convicted of a Graves Act offense, and
the statutory mandatory minimum term "does not serve the interests
of justice," the prosecutor may move before the assignment judge
for imposition of a one-year mandatory minimum term or a
probationary term. The prosecutor retains the discretion to decide
whether to seek the waiver and may argue in favor of either
sentence. Nance,
228 N.J. at 389. Moreover, "nothing in the statute
suggests that the assignment judge or designee must accept the
prosecutor's recommendation." Ibid.
If the State has not sought the Graves Act exception, the
defendant may not simply "challenge the prosecutor's decision in
a conclusory manner." State v. Alvarez,
246 N.J. Super. 137, 148
(App. Div. 1991). The defendant "must make a showing of
arbitrariness constituting an unconstitutional discrimination or
11 A-0459-16T3
denial of equal protection constituting a 'manifest injustice,'
and should be required to do so by moving papers designed to
convince the [a]ssignment [j]udge that any kind of hearing on the
issue is warranted." Ibid. (citing R. 3:21-10(c)).
A hearing will be conducted only if the assignment judge,
"after review of the materials submitted with the motion papers,
concludes that a hearing is required in the interests of justice."
Ibid. Thus, "a hearing need not be conducted on every application
before the assignment judge." State v. Mastapeter,
290 N.J. Super.
56, 64-65 (App. Div. 1996).
In this case, the State agreed to waive the mandatory minimum
term required by
N.J.S.A. 2C:43-6(c), but did not agree to a
probationary sentence. As we have explained, in the plea agreement,
the State agreed to recommend a five-year custodial term with one-
year of parole ineligibility. Defendant then filed a motion seeking
a probationary sentence. The State and defendant presented their
arguments to the court in written submissions, and the Assignment
Judge made his decision based on those submissions.
On appeal, defendant argues that the judge's decision on the
waiver motion was essentially a sentencing proceeding and he had
a constitutional right to be present and to be heard before the
judge decided the motion. He argues the judge erred by failing to
conduct a hearing on the motion.
12 A-0459-16T3
The Sixth Amendment to the United States Constitution and
Article I, paragraph 10 of the New Jersey Constitution guarantee
a defendant's right to be present at trial. State v. Tedesco,
214 N.J. 177, 189 (2013) (citing U.S. v. Gagnon,
470 U.S. 522, 526
(1985)). Moreover, Rule 3:16(b) states that "[t]he defendant shall
be present at every stage of the trial . . . and at the imposition
of sentence, unless otherwise provided by Rule." In addition, Rule
3:21-4(b) provides that a "[s]entence shall not be imposed unless
the defendant is present or has filed a written waiver of the
right to be present. Before imposing sentence the court shall
address the defendant personally."
A decision on a motion to the assignment judge under
N.J.S.A.
2C:43-6.2 is not, however, a proceeding during which the sentence
is imposed. Indeed, in Nance, the Court distinguished between the
role of the assignment judge or designee in deciding the Graves
Act waiver motion, and the role of the sentencing court in imposing
the sentence. Nance,
228 N.J. at 394-97.
The Court noted that under
N.J.S.A. 2C:43-6.2, the assignment
judge or designee is authorized to decide if the defendant will
be sentenced to a probationary term or a term of incarceration
with one year of parole ineligibility. Id. at 393–94. The
sentencing court is not authorized to choose between the two
statutory alternatives. Id. at 394. The Court explained that "[t]he
13 A-0459-16T3
sentencing court's task is to devise a sentence that comports with
the assignment judge's ruling and the sentencing provisions of the
Code." Ibid.
The Court stated that the sentencing court "may impose the
sentence recommended by the State under the plea agreement, [but]
it is not required to do so." Ibid. The Court added that after the
assignment judge or designee has decided the motion under
N.J.S.A.
2C:43-6.2, "the sentencing court, applying
N.J.S.A. 2C:44-1 and
other pertinent provisions of the Code, exercises its discretion
to weigh the aggravating and mitigating factors and determine the
remaining terms of the sentence." Id. at 397.
Thus, the assignment judge's decision on the waiver motion
is not the proceeding in which the sentence is imposed. Moreover,
N.J.S.A. 2C:43-6.2(c) does not require a hearing on a waiver motion
unless the assignment judge or designee determines that a hearing
is required in the interests of justice.
Here, Judge Bariso did not abuse his discretion by finding
that a hearing was not required on defendant's motion. Furthermore,
defendant was present and exercised his right of allocution at the
sentencing hearing before Judge Venable on August 25, 2015. We
conclude defendant was not denied his constitutional right to be
present when his sentence was imposed.
14 A-0459-16T3
IV.
Defendant further argues that we should remand the matter to
the Assignment Judge for reconsideration of his decision on the
waiver motion. Defendant contends the judge erred by noting in his
decision that defendant had been charged with a second-degree
offense, "which directly implicates the presumption of
incarceration under N.J.S.A. 2C:44-1(d)."
Defendant argues that in
N.J.S.A. 2C:43-6.2, the Legislature
"plainly intended" to give the court "meaningful discretion" and
the statute creates a specific exemption to the "inflexible
presumption" of incarceration in
N.J.S.A. 2C:44-1(d). However, in
Nance, which was decided after defendant filed his brief on appeal,
the Court expressly rejected this contention. The Court held that
"[t]he presumption of incarceration set forth in
N.J.S.A. 2C:44-
1(d) should apply when an assignment judge or his or her designee
chooses between" the alternative sentences in
N.J.S.A. 2C:43-6.2.
Nance,
228 N.J. at 397.
Next, defendant argues that Judge Bariso erred because he did
not find three "important" mitigating factors later found by the
sentencing judge. Here, Judge Bariso found aggravating factor
nine,
N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others
from violating the law). The judge found only mitigating factor
15 A-0459-16T3
seven,
N.J.S.A. 2C:44-1(b)(7) (defendant has no prior history of
delinquency or criminal activity).
Judge Bariso considered and rejected the other mitigating
factors, including mitigating factors eight,
N.J.S.A. 2C:44-
1(b)(8) ("defendant's conduct was the result of circumstances
unlikely to recur"); and nine,
N.J.S.A. 2C:44-1(b)(9) (defendant's
"character and attitude . . . indicate that he is unlikely to
commit another offense"). In his opinion, the judge stated:
In regards to factor eight, . . . the defense
merely states that this was the first time
that [defendant] handled a firearm. However,
there is no other evidence provided to show
that his actions were the result of a unique
set of circumstances that are unlikely to
reoccur. Moreover, [defendant's]
untruthfulness with law enforcement
demonstrates a lack of responsibility,
accountability, and lack of remorse or
appreciation for his conduct. [Defendant] also
cannot claim that [his] character and attitude
. . . indicate that he is unlikely to commit
another offense in accordance with factor
nine. The defense has not presented any
evidence to show that [defendant] has taken
steps to avoid reoffending. Additionally, no
employment history or educational background
were provided.
At sentencing, Judge Venable found aggravating factor nine,
and mitigating factors seven, eight, and nine. She also noted the
non-statutory factor of remorse. Defendant contends the matter
should be remanded and Judge Bariso ordered to reconsider his
decision in light of the sentencing court's findings. We disagree.
16 A-0459-16T3
Here, there is sufficient credible evidence to support Judge
Bariso's findings on the aggravating and mitigating factors. The
judge need not reconsider his decision on the waiver motion based
on the subsequent findings of the sentencing judge. Moreover, the
aggravating and mitigating factors must be weighed qualitatively,
not quantitatively. State v. Case,
220 N.J. 49, 65 (2014) (citing
State v. Fuentes,
217 N.J. 47, 72–73 (2014)). The record shows
that Judge Bariso weighed the aggravating and mitigating factors
appropriately.
In addition, defendant argues that in denying his motion for
a probationary sentence, the Assignment Judge treated him
differently from a similarly-situated defendant. In support of
this contention, defendant relied upon an unpublished opinion of
this court, in which the defendant had been charged with second-
degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b);
fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-
5(d); second-degree possession of a weapon for an unlawful purpose;
N.J.S.A. 2C:39-4(a); third-degree possession of a weapon for an
unlawful purpose,
N.J.S.A. 2C:39-4(d); fourth-degree aggravated
assault,
N.J.S.A. 2C:12-1(b)(4); and third-degree aggravated
assault,
N.J.S.A. 2C:12-1(b)(2). State v. Tanco-Brito, No. A-4218-
13 (App. Div. 2015) (slip op. at 2, n.1)
17 A-0459-16T3
The defendant in Tanco-Brito was tried before a jury and
found guilty of second-degree unlawful possession of a weapon, and
not guilty on the other charges. Id. at 3. Judge Bariso downgraded
the conviction to a third-degree offense for sentencing purposes
and granted the defendant's motion to waive the mandatory-minimum
term required by
N.J.S.A. 2C:43-6(c). Ibid. The judge decided that
the defendant should be sentenced to a three-year term of
probation. Ibid. The State appealed and we affirmed. Id. at 2–3.
In this case, Judge Bariso found that defendant was not
similarly-situated to the defendant in Tanco-Brito. The judge
noted, defendant had the benefit of a plea agreement, whereas the
defendant in Tanco-Brito was tried on numerous charges. Id. at 2,
n.1. In addition, defendant pled guilty to a second-degree offense,
and the conviction in Tanco-Brito was downgraded to a third-degree
offense for sentencing purposes. Id. at 3. The record supports the
judge's rejection of defendant's claim of disparate sentencing.
Affirmed.
18 A-0459-16T3
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