SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

- 0533

- 20

STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

CESAR G. LEMUS, a/k/a

CESAR GARCIA

- LEMUS, CESAR GARCIALEMUS, CESAR GARCIA, CESAR

LEMUS and CESAR GARCIA
LEMOS,

Defendant

- Appellant.

____________________________

Submitted June 21, 2022

– Decided July 7, 2022

Before Judges Whipple and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 19

- 11

- 0741.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counse l and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court

. " A lthough it is posted on the

internet

, this opinion is binding only on the parties in the case and its use in other cases is limited

. R

. 1:36

- 3.2 A

- 0533

- 20 William A . Daniel, Union County Prosecutor, attorney for respondent (Joseph M. Nielsen, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Cesar Lemus appeals from an October 9, 2020 judgment of

conviction afte r a plea of guilty to second

- degree possession of a handgun

without a permit, N.J.S.A. 2C:39

- 5 ( b ) (1)

. He asks us to reverse the court's

denial of his motion to overrule the State's rejection of his petition for a Graves

Act waiver pursuant to N.J.S.A. 2C:43

- 6.2 , "which embodies the so called

'escape valve' to the mandatory sentence requirements otherwise embodied in

the Graves Act ," N.J.S.A. 2C:43

- 6(c)

. State v. Alvarez

, 246 N.J. Super. 137,

139 (App. Div. 1991)

. We affirm for the reasons stated in Judge Regina

Caulfield's well

- reasoned eighteen

- page written decision.

Defendant raises one issue on appeal:

THIS COURT SHOULD REVERSE THE

ARBITRARY AND DISPARATE DENIAL OF

DEFENDANT ' S N.J.S.A. 2C:43

- 6.2 APPLICATION

FOR A WAIVER OF A 3.5

- YEAR MINIMUM

PRISON SENTENCE.

On November 19, 2019, d efendant was charged with possessing a revolver

without a permit for an unlawful purpose

, N.J.S.A. 2C:39

- 5 ( b )(1) and N.J.S.A.

2C:39

- 4 ( a ) (1). Defendant grew up in Honduras, where, he says, as a child, the3 A

- 0533

- 20

gangs kidnapped him, threatened and tortured him, and cut off his finger

. He

fled Honduras at age fifteen and made the dangerous journey to the United States

as an unaccompanied minor. Defendant was diagnosed in 2018 with post

traumatic s tress disorder.

O n August 17, 2019, when defendant was nineteen years old, he had a

verbal dispute with a man outside of a laundromat in Elizabeth. Defendant

displayed a handgun, asked whether the man had a problem, and then walked

away. Defendant l ater said in his recorded statement that he believed the man

was in a gang. The man called the police. One officer attempted to block

defendant's path in an unmarked car, and another chased defendant on foot.

Officers yelled at him to stop. During the chase, defendant reached into his

waistband and dropped a weapon. One of the officers fired a shot at defendant

but missed. Defendant was arrested. The discarded weapon was loaded.

Defendant later gave a rec orded statement in which he said that a friend was

going to teach him to fire it in a park.

After being charged, d efendant asked the Union County Prosecutor for a

Graves w aiver

, which was denied. On March 31, 2020, the prosecutor provided

a written e xplanation setting forth the reasons for the denial. Defendant sought

reconsideration of the denial and provided additional mitigating information to4 A

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- 20

the p rosecutor. On April 9, 2020, the p rosecutor denied defendant ' s request for

reconsideration after re viewing the supplemental information.

Defendant filed an Alvarez 1 motion to appeal the denial of hi s request for

a Graves w aiver. In support of his motion, defendant cited to six additional

Union County cases where a Graves w aiver was granted in an atte mpt to

illustrate that the State treated other similarly situated defendants differently in

granting their waivers. Further, defendant argued the State failed to properly

consider all relevant mitigating information.

On July 22, 2020, Judge Caulfield issued a written decision and o rder

denying defendant ' s motion. Defendant subsequently pled guilty and the court

sentenced defendant to a five

- year prison term with a three

- and

- a

- half

- year

parole disqualifier pursuant to the Graves Act. This appeal followed.

The Graves Act requires a mandatory term of imprisonment for individuals

convicted of various firearm

- related crimes. It specifically requires that "[t]he term

of imprisonment shall include the imposition of a minimum term" which "shall be

fixed at one

- half of the sentence imposed by the court or [forty

- two] months,

whichever is greater.

. . ." N.J.S.A. 2C:43

- 6(c). The Graves Act, however, contains

1 Alvarez

, 246 N.J. Super. at 139

.5 A

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- 20

an "'escape valve' to the mandatory sentence requirements

. . . ." Alvarez

, 246 N.J.

Super. at 139

.

This "escape valve" provides:

On a motion by the prosecutor made to the [A]ssignment [J]udge that the imposition of a mandatory minimum term of imprisonment under [the Graves Act] for a defendant who has not previousl y been convicted of an offense under [the Graves Act], . . . does not serve the interests of justice, the [A]ssignment [J]udge shall place the defendant on probation . . . or reduce to one year the mandatory minimum term of imprisonment during which th e defendant will be ineligible for parole. The sentencing court may also refer a case of a defendant who has not previously been convicted of an offense under that subsection to the [A]ssignment [J]udge, with the approval of the prosecutor, if the sentenc ing court believes that the interests of justice would not be served by the imposition of a mandatory minimum term.

[N.J.S.A. 2C:43

- 6.2.]

"[W]ritten guidelines exist to channel prosecutorial discretion" in evaluating

waiver applications. State v. Benjamin

, 228 N.J. 358, 372 (2017). The guidelines,

outlined in the Off

ice of the Att orne y Gen eral

, Directive to Ensure Uniform

Enforcement of the "Graves Act" (Oct. 23, 2008, as corrected Nov. 25, 2008)

,

instruct prosecutors "contemplating a waiver to 'c onsider all relevant circumstances

concerning the offense conduct and the offender,' such as applicable aggravating and

mitigating circumstances under N.J.S.A. 2C:44

- 1.

. . ." Id. at 369. Should the6 A

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- 20

prosecutor decide not to approve the waiver, a defendant may move "before the

[A]ssignment [J]udge or designated judge

. . . for a

. . . hearing as to whether the

prosecutor's rejection or refusal is grossly arbitrary or capricious or a patent abuse

of discretion." Alvarez

, 246 N.J. Super. at 147 (quo ting State v. Cengiz

, 241 N.J.

Super. 482, 497

- 98 (App. Div. 1990)). A defendant "must make a showing of

arbitrariness constituting an unconstitutional discrimination or denial of equal

protection constituting a 'manifest injustice,'" and the Assignment J udge must

determine if a hearing is warranted "in the interests of justice." Id. at 148

- 49 (citation

and internal quotation marks omitted).

Here, the trial court properly found that the State acted reasonably in

denying defendant a Graves w aiver. Defendant was in possession of a loaded

handgun

, which by his own admission he was planning on shooting off that night

in a public park. D efendant was in toxicated at the time he possessed the firearm

and displayed the weapon to the man at the laundromat in a threatening manner.

Defendant brandished the handgun while he fled from police and which caused

an officer to fire in self

- defense.

The trial judge thoroughly reviewed the reasons for denial given by the

prosecutor and found the decision was sound and a proper exercise of

prosecutorial discretion

. In reviewing the six other Union County cases where7 A

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- 20

Graves w aivers were granted to highlight alleged dis parity in an attempt to

illustrate an abuse of discretion on behalf of the State

, the trial court found

defendant ' s case was unlike the other s. Specifically, after a review of

defendant ' s case, the court determined that the flashing of a gun to a civilian , the

subsequent pursuit by police, and defendant ' s discarding of a loaded firearm in

a residential neighborhood made this case unlike any other cited by defendant.

To the extent we have not addressed defendant's remaining arguments, we

find they lack su fficient merit to warrant discussion in a written opinion. See

R. 2:11

- 3(e)(2).

Affirmed.