STATE OF NEW JERSEY v. ANTHONY C. DIVIZIO
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-3778-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY C. DIVIZIO,
Defendant-Appellant.
Argued November 15, 2017 – Decided January 22, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 16-
08-1664.
Daniel S. Rockoff, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Daniel S. Rockoff, of counsel and on the
briefs).
William Kyle Meighan, Assistant Prosecutor,
argued the cause for respondent (Joseph D.
Coronato, Ocean County Prosecutor, attorney;
Samuel Marzarella, Chief Appellate Attorney,
of counsel; William Kyle Meighan, on the
brief).
PER CURIAM
On April 2017, approximately eight weeks after State v.
Benjamin,
228 N.J. 358 (2017) was decided, we granted defendant
Anthony C. Divizio leave to appeal the denial of certain discovery
requests made regarding his unsuccessful application for a Graves
Act waiver. See
N.J.S.A. 2C:43-6.2. We now affirm the Law
Division judge's decision in part, reversing only that portion of
his order which required the State to turn over defendant's file
for in camera inspection.
Defendant, who has a history of drug addiction, stole a .357
magnum handgun in the spring of 2016. The weapon had belonged to
his deceased father and was taken from his sister's home. He
traded the gun for heroin.
After his arrest, he attempted to aid the authorities in
obtaining the return of the weapon. He called the drug dealer
with whom he had engaged in the gun-for-drugs exchange, but the
dealer denied knowledge of its whereabouts. Defendant has a
minimal criminal history — a conditional discharge and two
disorderly persons drug offenses. After these charges were lodged
against him, he entered into a drug rehabilitation facility where
by all reports, he was doing well.
Defendant was eventually indicted for third-degree theft of
a firearm,
N.J.S.A. 2C:20-3(a) (count one); second-degree unlawful
possession of a firearm,
N.J.S.A. 2C:39-5(b)(1) (count two); and
2 A-3778-16T3
fourth-degree unlawful disposition of a firearm,
N.J.S.A. 2C:39-
9(d) (count three).
The exception to mandatory Graves Act sentencing "allows
certain first-time offenders to receive a reduced penalty if the
imposition of a mandatory term would not serve the interests of
justice." Benjamin,
228 N.J. at 368. The statutory escape valve
authorizes a prosecutor to request the waiver before the assignment
judge, or, in the alternative, authorizes a sentencing judge, with
the prosecutor's consent, to refer the matter to the assignment
judge for consideration of a waiver.
N.J.S.A. 2C:43-6.2. It
allows the court to either impose a term of probation by way of
sentence, or reduce the relevant mandatory period of parole
ineligibility to one year. Ibid. The waiver, however, is subject
to the court's review — whether imposition of the Graves Act
minimums would not serve the "interests of justice." Ibid.
Defendant initially sought, as did the defendant in Benjamin,
discovery of the prosecutor's case files of others similarly
situated who obtained a waiver recommendation. After the decision
in Benjamin, which concluded that production was not required,
this defendant's request was modified to include only the
aggravating and mitigating factors the prosecutor considered when
the application was rejected.
3 A-3778-16T3
The State's initial November 3, 2016 one-page denial of
defendant's request for a waiver consisted primarily of a
checklist. Boxes were marked off stating that defendant was denied
"statutorily" and because of a "significant threat to the
community[.]" The denial continued: "the factual circumstances
concerning the 'offense conduct' is the factual circumstances that
the Graves Act was intended to combat and, the imposition of a
mandatory minimum sentence is [sic] this matter, is in the
interests of justice."
The prosecutor's February 14, 2017 brief indicated that "at
least" three aggravating factors applied to the offense: that it
was committed "in an especially heinous, cruel, or depraved
manner[,]"
N.J.S.A. 2C:44-1(a)(1), that it was necessary to deter
defendant and others from violating the law,
N.J.S.A. 2C:44-
1(a)(9), and that defendant was at risk to reoffend because of his
heroin addiction,
N.J.S.A. 2C:44-1(a)(3). In the brief, the State
also explained that a case defendant cited in support of his
request for a waiver involved a defendant who had traded a gun,
stolen from her boyfriend, for drugs. That case, in which the
prosecutor had agreed to a waiver, was distinguishable in that the
weapon was recovered.
The Law Division judge, in his post-Benjamin written
decision, reiterated defendant's contention, also raised on
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appeal, that in order to obtain and prevail in a State v. Alvarez1
hearing, defendant required a more substantive statement of
reasons, including the prosecutor's analysis of aggravating and
mitigating factors, and a "case-specific memorialization" of the
prosecutor's decision. The judge also noted that the State
contended that the initial statement of reasons, together with the
reasons expressed in the brief, easily met all discovery
responsibilities and provided defendant with sufficient
information for attack on the merits of the decision. Although
he denied defendant's discovery requests, the judge directed the
prosecutor provide the case-specific memorialization of the manner
in which it made the decision, in addition to his file, for in-
camera inspection. This appeal followed.
Defendant raises the following points for our consideration:
POINT I
AFTER THE COUNTY PROSECUTOR REFUSED CONSENT
TO A WAIVER OF THE GRAVES ACT'S 3.5-YEAR
PAROLE DISQUALIFIER, THE TRIAL COURT ERRED BY
ORDERING THAT THE PROSECUTOR SHOULD
COMMUNICATE SOLELY TO THE COURT THE COUNTY'S
ASSESSMENT OF THE
N.J.S.A. 2C:44-1 SENTENCING
FACTORS, EXCLUDING MR. DIVIZIO FROM DISCOVERY
OF THAT INFORMATION. U.S. CONST., AMENDS. V,
VI, XIV; N.J. CONST., ART. 1, PARS. 1, 9, 10.
1
246 N.J. Super. 137, 148-49 (App. Div. 1991) (finding that "[a]
hearing would 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.'").
5 A-3778-16T3
A. The trial court's order conflicts with
the holding in State v. Benjamin, 442
N.J. Super. 258, 266 (App. Div. 2015),
aff'd as modified, 2
017 N.J. LEXIS 377
(2017).
B. The trial court's order conflicts with
the reasonable concession made by the
Attorney General of New Jersey during
briefing and recorded oral argument in
Benjamin.
C. The trial court's order conflicts with
R. 3:13-3, which provides that "relevant"
documents in the State's possession are
discoverable by the defendant.
D. The trial court's order conflicts with
State v. Alvarez,
246 N.J. Super. 137,
147 (App. Div. 1991), which promises a
meaningful opportunity to challenge
prosecutorial sentencing decisions for
arbitrary or discriminatory treatment.
E. The trial court's order conflicts with
the prohibition against ex parte judicial
communications.
We first address defendant's claim that the trial court's
order violates the ban against ex parte judicial communications.
Trial judges not infrequently inspect records in camera; the
prohibition against ex parte communications is intended to ban
very different communications. We do not discuss the point further
as we consider it so lacking in merit. R. 2:11-3(e)(2).
Defendant's remaining points concern the analysis of the
principles enunciated in Benjamin. In Benjamin, the Court
considered the Attorney General's Directive to Ensure Uniform
6 A-3778-16T3
Enforcement of the "Graves Act" (Oct. 23, 2008, as corrected Nov.
25, 2008) (Directive). The Directive imposes on the prosecutor
the obligation to include in the decision-making process "all
relevant circumstances concerning the offense conduct and the
offender," including statutory aggravating and mitigating factors,
and the likelihood of conviction at trial. Directive at 10. The
Directive also requires prosecutors to maintain records——"case-
specific memorializations" in order to enable periodic audits by
the Attorney General's Office. Id. at 13-14.
Additionally, the Court also asked if there were "sufficient
procedural safeguards [] in place to protect a defendant's right
to challenge the denial of a Graves Act waiver." Benjamin,
228 N.J. at 370. In making that determination, the Court drew a
parallel to the Comprehensive Drug Reform Act of 1987,
N.J.S.A.
2C:35-1 to 36A-1. Id. at 370-71. Attorney General's guidelines
relevant to that act inform the exercise of prosecutorial
discretion with regard to plea offers. Id. at 371 (citing State
v. Lagares,
127 N.J. 20, 28-33 (1992); State v. Vasquez,
129 N.J.
189, 195-96 (1992); see also State v. Brimage,
153 N.J. 1, 24
(1998) (rejecting Attorney General's guidelines for formalizing
disparity throughout the state)). The waiver decision must be
documented when made, which the State conceded was appropriate and
7 A-3778-16T3
necessary "to facilitate judicial review for the arbitrary or
discriminatory exercise of prosecutorial discretion." Id. at 372.
Finally, the Court considered a defendant's right to a
hearing, at which time he or she can obtain judicial review of the
imposition of the minimums if the review would serve the interests
of justice. Id. at 372-73 (citing Alvarez,
246 N.J. Super. at
148-49). In sum, "prosecutors are guided by standards, inform
defendants of the basis for their decisions, and are subject to
judicial oversight." Id. at 373.
Importantly, the Court said the following:
All case-specific files should contain a
statement of reasons which, upon a defendant's
Alvarez motion, the assignment judge may
consider in assessing the prosecutor's
conduct, as the statement will show the
prosecutor's reasons not to grant a waiver for
a particular defendant. Conversely,
additional case-specific information is
contained in case and cumulative files for
administrative reasons because those files
function as internal documents, the primary
purpose of which is to allow prosecutors to
assess the case and the Attorney General to
conduct audits to ensure compliance with the
Directive.
[Id. at 373-74 (citing Directive at 14).]
It seems to us from this language that the "case and cumulative
files" are maintained for internal use and assessment by the
Attorney General's Office. Therefore, the Benjamin decision did
8 A-3778-16T3
not mean that a Graves Act defendant has access to them. Id. at
374.
Benjamin also stated that despite New Jersey's long-standing
precedent supporting broad discovery in criminal cases, a
defendant is expected to demonstrate entitlement to an Alvarez
hearing after presenting independent grounds that he or she was
receiving unconstitutionally disparate treatment. Id. at 374.
In other words, the written notifications in this case of
reasons for denying a waiver must suffice. The prosecutor
explained the circumstances of the offense that led to the
decision. Defendant's conduct resulted in the release of yet
another gun into the drug underworld. The prosecutor's office
also identified defendant's long-standing drug problem as a basis
for its rejection, as it viewed him as a person likely to reoffend.
The prosecutor has provided his reasons in writing in sufficient
detail.
Nor do we agree with defendant's argument that conveying the
aggravating and mitigating factors after the fact, weeks after the
decision denying the waiver was made, was fatal. They were
consistent with the checklist. There is nothing magical about
compelling the State to produce the original document on which the
aggravating and mitigating factors were recorded. The important
9 A-3778-16T3
information has been provided, and the reasons do not appear to
treat defendant in a discriminatory or arbitrary fashion.
Furthermore, there does not appear to be a basis for the
judge's concern. The State should not have been ordered to produce
defendant's file as well as the case-memorialization for in camera
inspection.
Affirmed in part, reversed in part.
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