SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2840-18T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JORDAN X. SMITH,

Defendant-Respondent.

____________________________

Submitted August 4, 2020 – Decided August 17, 2020

Before Judges Rothstadt and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 18-01-

0069.

Christopher L.C. Kuberiet, Acting Middlesex County 

Prosecutor, attorney for appellant (Patrick F. Galdieri, 

II, Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for 

respondent (Alyssa A. Aiello, Assistant Deputy Public 

Defender, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although 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.
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The State appeals from the probationary sentence imposed by the Law 

Division on second-degree Graves Act charges. For the reasons that follow, we 

vacate defendant's judgment of conviction and remand.

I.

We derive the following facts from the record. On October 21, 2017, a 

South Brunswick Township police officer stopped defendant Jordan X. Smith. 

Defendant was driving his mother, Nicole Andrews's vehicle when he was 

stopped by a South Brunswick Township police officer for turning without using 

a turn signal. He was visiting friends near his home. At the scene, defendant 

advised the officer that he had an outstanding traffic warrant and a suspended 

license because he failed to pay a traffic ticket for a seatbelt violation.

Andrews arrived on the scene and consented to a search of her vehicle, 

which uncovered a bag with six prednisone pills in the console. Defendant was 

then arrested and searched, which yielded a defaced .25-caliber handgun

concealed in his pants leg. He did not have a permit to possess or carry a 

handgun. At the time of his arrest, defendant was a twenty-three-year-old high 

school graduate, with some community college education, living with family 

members and working full-time in construction. As a juvenile, defendant 

successfully completed a diversion program for committing disorderly persons 
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offenses. As an adult, defendant received a conditional discharge for marijuana 

possession from a municipal court.

On January 12, 2018, a Middlesex County grand jury charged defendant 

with: second-degree unlawful possession of a .25-caliber handgun, N.J.S.A. 

2C:39-5(b)(1) (count one); fourth-degree possession of a defaced firearm, 

N.J.S.A. 2C:39-3(d) (count two); fourth-degree unlawful purchase or acquisition 

of handgun ammunition, N.J.S.A. 2C:58-3.3(b) (count three); and fourth-degree 

unlawful possession of a prescription drug, prednisone, N.J.S.A. 2C:35-

10.5(e)(2) (count four). In addition, defendant was issued four motor vehicle 

summonses, including driving with a suspended license, N.J.S.A. 39:3-40.

On April 22, 2018, defendant's counsel sent a letter to the Middlesex 

County prosecutor seeking a Graves Act waiver pursuant to N.J.S.A. 2C:43-6.2. 

Defendant explained that he lives with his mother and two younger siblings; is 

a church member; and "has never been afraid of hard work." Letters from family 

members and friends were submitted to the prosecution attesting to defendant's 

good character and work ethic. In a June 19, 2018 reply letter, the prosecutor 

denied defendant's request. On June 24, 2018, defendant filed a motion under 
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State v. Alvarez1appealing the prosecutor's denial of the Graves Act waiver to 

the assignment judge.

Following oral argument on July 30, 2018, the former assignment judge 

rendered an oral opinion granting defendant's application for a Graves Act 

waiver. In reaching his decision, the judge noted discovery was not required,

that "there is no violence here" and "no commission of any other crime . . . other 

than the possessory crime of the gun . . . ." After reviewing the Graves Act 

waivers extended in the vicinage, the judge concluded the prosecutor's denial of 

the waiver in this case was "an arbitrary and capricious decision," and that the 

prosecutor had "invited" defendant to apply for a waiver.

Additionally, the judge stated that "[F]ive years with a three[-]and[-] 

a[-]half[-]year parole disqualifier is not justice." The judge acknowledged 

"there is a presumption for incarceration" and unless the presumption is

overcome at sentencing, defendant "would have to serve at least one year 

without parole eligibility." A memorializing order was entered on July 31, 2018.

On August 27, 2018, defendant appeared before a different judge and pled 

guilty to all four counts of the indictment. In exchange for his guilty plea, the 

State agreed not to make a specific sentencing recommendation.

1

 246 N.J. Super. 137 (App. Div. 1991).
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On December 7, 2018, defendant again appeared before the assignment 

judge and withdrew his guilty plea. Defendant entered a new guilty plea to the 

unlawful possession of a .25-caliber handgun and the driving with a suspended 

license charges. In exchange for his revised guilty plea, the State agreed to

recommend that defendant be sentenced to an aggregate three-year term of 

imprisonment with a one-year period of parole ineligibility, along with dismissal 

of the other charges.

On the sentencing date, after hearing from defendant, his counsel, great 

aunt, and the State, the former assignment judge made findings regarding the 

applicable aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and 

N.J.S.A. 2C:44-1(b). The judge found one aggravating factor nine (the need to 

deter defendant and others from violating the law), which he gave weight to. 

However, the judge rejected the State's argument that aggravating factor three 

(the risk defendant will commit another offense) applied. The State argued 

defendant's juvenile complaint, which was diverted, and his adult charge for 

possession of under fifty grams of marijuana, which resulted in a conditional 

discharge, supported aggravating factor number three.

The judge found mitigating factors one (defendant's conduct neither 

caused nor threatened serious harm); two (defendant did not contemplate that 
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his conduct would cause or threaten serious harm); 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 present offense); eight 

(defendant's conduct was the result of circumstances unlikely to recur); nine (the 

character and attitude of defendant indicate he is unlikely to commit another 

offense); and ten (defendant is particularly likely to respond affirmatively to 

probationary treatment), which the judge afforded substantial weight. 

Furthermore, the judge stated defendant did not possess the handgun with the 

intent to "go out there and commit crimes" and he did not cause or threaten any 

harm.

After weighing the factors, the letters written on behalf of defendant, his 

therapist's report, and the character of defendant, the judge held "this is a mere 

possessory offense," and defendant carried the gun "for self-protection because 

he worked in New York City and was concerned." The judge concluded it would 

be an injustice for defendant to receive a prison term. Consequently, the judge 

sentenced defendant to an aggregate five-year probationary term for a 

"regulatory offense." All remaining charges were dismissed, and appropriate 

fines were imposed.
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On appeal, the State raises a single point for our consideration:

POINT ONE

[THE JUDGE] ERRED IN SENTENCING 

DEFENDANT TO NON-CUSTODIAL PROBATION 

BECAUSE THIS WAS NOT THE EXCEPTIONAL 

CASE WHERE A PRISON SENTENCE WOULD BE 

A SERIOUS INJUSTICE THAT OVERRIDES THE 

NEED TO DETER.

Having reviewed the record in light of governing principles, we conclude 

that the judge did not provide any explanation under N.J.S.A. 2C:44-1(d) 

addressing the "serious injustice" exception to the presumption of imprisonment 

for this second-degree crime or make required findings under Rule 1:7-4. 

Accordingly, we vacate the sentence and remand for resentencing before the 

current assignment judge.

II.

Because the issue raised on appeal implicates the legality of the sentence 

imposed, our review of the judge's decision is de novo. See State v. Nance, 228 

N.J. 378, 393 (2017). We therefore "afford[] no special deference to the 

[judge's] interpretation of the relevant statutes." Ibid.; see also State v. Grate, 

220 N.J. 317, 329 (2015).

The State argues the judge erred by imposing a non-custodial probationary 

sentence "in derogation of the exacting standards" for presumption of 
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incarceration for a second-degree crime under N.J.S.A. 2C:44-1(d). Because 

the "serious injustice" exception to the presumption of imprisonment has not 

been demonstrated here, the State contends a reversal and remand for 

resentencing is warranted.

"Enacted in 1981 as 'a direct response to a substantial increase in violent 

crime in New Jersey,' the Graves Act is intended 'to ensure incarceration for 

those who arm themselves before going forth to commit crimes.'" Nance, 228 

N.J. at 390 (quoting State v. Des Marets, 92 N.J. 62, 68 (1983)).

As amended, the statute applies to a defendant who is 

convicted of one of the offenses enumerated in the 

statute "who, while in the course of committing or 

attempting to commit the crime, including the 

immediate flight therefrom, used or was in possession 

of a firearm as defined in [N.J.S.A.] 2C:39-1(f)."

[Ibid. (alteration in original) (quoting Des Marets, 92 

N.J. at 64 n.1).]

The Graves Act requires the imposition of a minimum term "fixed at onehalf of the sentence imposed by the court or [forty-two] months, whichever is 

greater, or [eighteen] months in the case of a fourth[-]degree crime, during 

which the defendant shall be ineligible for parole." N.J.S.A. 2C:43-6(c). "To 

mitigate the undue severity that might accompany the otherwise automatic 

application of the mandatory minimum sentence under the Graves Act," N.J.S.A. 
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2C:43-6.2 (Section 6.2) provides "a limited exception that allows certain firsttime offenders to receive a reduced penalty if the imposition of a mandatory 

term would not serve the interests of justice." State v. Benjamin, 228 N.J. 358,

368 (2017).

Pursuant to Section 6.2,

On a motion by the prosecutor made to the assignment 

judge that the imposition of a mandatory minimum term 

of imprisonment under . . . [N.J.S.A. 2C:43-6(c)] for a 

defendant who has not previously been convicted of an 

offense under that subsection . . . does not serve the 

interests of justice, the assignment judge shall place the 

defendant on probation pursuant to [N.J.S.A. 2C:43-

2(b)(2)] or reduce to one year the mandatory minimum 

term of imprisonment during which the defendant will 

be ineligible for parole.

[N.J.S.A. 2C:43-6.2.]

In accordance with Alvarez, defendants may "appeal the denial of a waiver to 

the assignment judge upon a showing of patent and gross abuse of discretion by 

the prosecutor." Benjamin, 228 N.J. at 364.

To make the showing delineated in Alvarez, "a defendant must, by motion 

to the assignment judge, demonstrate 'arbitrariness constituting an 

unconstitutional discrimination or denial of equal protection' in the prosecutor's 

decision." Benjamin, 228 N.J. at 372 (quoting Alvarez, 246 N.J. Super. at 148). 

"Once a defendant makes this threshold showing, the defendant can obtain a 
10 A-2840-18T1

hearing to review the prosecutor's decision if the assignment judge concludes 

that the 'interests of justice' so require." Id. at 372-73.

In 2008, the New Jersey Attorney General issued a directive to prosecutors 

"'to ensure statewide uniformity in the exercise of prosecutorial discretion in 

implementing' the Graves Act." Id. at 369 (quoting the Attorney General 

Directive to Ensure Uniform Enforcement of the "Graves Act" (Oct. 23, 2008, 

as corrected Nov. 25, 2008) (the Directive)). "The Directive instructs a 

prosecutor contemplating a waiver to 'consider all relevant circumstances 

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

and mitigating factors under N.J.S.A. 2C:44-1 and the likelihood of the 

defendant's conviction at trial." Ibid. (quoting the Directive at 12).

Under the Directive, "[t]he prosecuting agency as part of the State's initial 

plea offer shall agree to move pursuant to [N.J.S.A.] 2C:43-6.2 for a reduction 

to a one-year term of parole ineligibility," unless (1) the defendant is ineligible 

for a waiver due to a prior conviction for a Graves Act offense, (2) there is 

"substantial likelihood that the defendant is involved in organized criminal 

activity," (3) "the prosecuting agency determines that the aggravating factors 

applicable to the offense conduct and offender outweigh any applicable 

mitigating circumstances" or (4) "the prosecuting agency determines that a 
11 A-2840-18T1

sentence reduction to a one-year term of parole ineligibility would undermine 

the investigation or prosecution of another." Directive at 7-14.

When considering a defendant's Alvarez motion, the assignment judge 

may consider, in assessing the prosecutor's conduct, case-specific files in 

assessing the prosecutor's reasons not to grant a waiver for a particular 

defendant. Benjamin, 228 N.J. at 373. "This judicial backstep ensures that 

prosecutorial discretion is not unchecked because the assignment judge retains 

'ultimate authority' to review the prosecutor's waiver decisions for arbitrariness 

and discrimination." Ibid. Here, the State challenges the judge's finding that 

this is the exceptional case where imprisonment will not serve any deterrence 

purpose and imprisonment would constitute a serious injustice.

We conclude from our review that the judge made no findings of fact or 

conclusions of law when he decided defendant's motion. A trial court is required 

"by an opinion or memorandum decision, either written or oral, [to] find the 

facts and state its conclusions of law thereon . . . on every motion decided by a 

written order that is appealable as of right." R. 1:7-4(a).

"Mere invocation of the serious injustice exception will not suffice 

without a detailed explanation of its application to the facts and circumstances 

at hand and a reasoned demonstration that this is one of those rare cases in which 
12 A-2840-18T1

the otherwise paramount goals of deterrence have been overridden." State v. 

Lebra, 357 N.J. Super. 500, 511 (App. Div. 2003). Without that detailed 

explanation, the exception is not met. Ibid.

We conclude from our review that we are unable to perform our appellate 

function because the judge failed to make the necessary findings of fact 

supporting his determination or otherwise sufficiently expressing his reasoning 

that the serious injustice exception to the presumption of imprisonment applies 

here. The judge simply concluded this was "a regulatory offense," and a 

probationary sentence would serve the interests of justice. 

Defendant's status as a first-time offender, his full-time employment in 

construction, and aspirations of becoming a crane operating engineer, while 

commendable, do not automatically qualify him as "idiosyncratic." The judge 

failed to make the requisite findings on this important issue. Further, the judge 

made no detailed findings that defendant showed a serious injustice would occur 

if he was incarcerated.

Without specific findings made by the judge as noted above, as in Evers, 

"we cannot agree that the sum of [defendant's] circumstances is so rare and 

extraordinary that the 'human cost' of defendant's imprisonment exceeds 

society's imperative need to deter others . . . ." Id. at 401. We are therefore 
13 A-2840-18T1

constrained to vacate the order under review and remand for resentencing before 

the current assignment judge.

III.

We reject defendant's argument that the State's appeal is barred by the 

doctrine of double jeopardy. By operation of law, a court's sentence does not 

become final for ten days "if the court imposes a non[-]custodial or probationary 

sentence upon conviction for a crime of the first or second degree" to permit the 

State to contest the sentence imposed. N.J.S.A. 2C:44-1(f)(2). "[E]xecution of 

[a] sentence shall be stayed pending appeal by the State pursuant to N.J.S.A. 

2C:44-1(f)(2) . . . ." R. 2:9-3(c). A defendant "may elect to execute a sentence 

stayed by the State's appeal but such election shall constitute a waiver of the 

right to challenge any sentence on the ground that execution has commenced." 

R. 2:9-3(c).

"Because defendants are charged with notice of the statute, they have no 

reasonable expectation that their sentences will be final until either the time for 

appeal expires without appeal by the State or a timely appeal is resolved." State 

v. Johnson, 376 N.J. Super. 163, 171-72 (App. Div. 2005); see also Sanders, 107 

N.J. 609, 620 (1987). Therefore, any defendants who received a lenient sentence 

under this Code, cannot "legitimately have expected that their sentences were 
14 A-2840-18T1

final when pronounced." Sanders, 107 N.J. at 620. "The clear and unambiguous 

terms of the statute remove any expectation of finality that a defendant may vest 

in his sentence; its stay provisions ensure that he will not begin serving that 

sentence until the State's notice of appeal is filed." Id. at 621.

Defendant does not contest the above statutory framework, but instead 

challenges that he was sentenced to a probationary term stemming from the 

"escape valve" of the Graves Act, N.J.S.A. 2C:43-6.2, and not N.J.S.A. 2C:44-

1. Because the Graves Act does not include a similar ten-day stay provision, 

defendant in this case claims he could not have been charged with knowledge of 

an automatic stay.

Our Court has construed N.J.S.A. 2C:43-6.2 and N.J.S.A. 2C:44-1(f)(2) 

as two harmonized components of the Code's sentencing scheme. In Nance, the 

Court explained that "N.J.S.A. 2C:44-1(d) governs the sentencing of any 'person 

who has been convicted of a crime of the first or second degree,' with no 

exception for defendants who are granted a Graves Act waiver." 228 N.J. at 

396.

Moreover, "[b]ecause one of the two alternative sentences permitted under 

section 6.2—a custodial term with a mandatory minimum of one year—

constitutes a 'sentence of imprisonment' within the meaning of N.J.S.A. 2C:44-
15 A-2840-18T1

1(d), [a] . . . judge may comply with [both provisions] at once." Ibid. Therefore, 

the Court concluded that the presumption of incarceration in N.J.S.A. 2C:44-1 

applies when a judge chooses between the alternative sentences of the Graves 

Act. Id. at 397.

Because the analytical framework of choosing between the two alternative 

sentences under N.J.S.A. 2C:43-6.2 necessarily includes an analysis under 

N.J.S.A. 2C:44-1 and since the judge specifically referenced his analysis under 

N.J.S.A. 2C:44-1(f)(2), we conclude defendant was charged with notice of the 

statutes. Consequently, the automatic ten-day stay allowing the State to appeal 

applies, and the State's appeal does not violate defendant's right against double 

jeopardy. See Sanders, 107 N.J. at 621.

Vacated and remanded for resentencing in conformity with this opinion. 

We do not retain jurisdiction.