1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

State v. Nance/Bolton/Williams (A-47/48/49-15) (076626)

Argued November 7, 2016 -- Decided April 5, 2017 

Patterson, J., writing for a unanimous Court.

In these consolidated sentencing appeals, the Court considers whether an amendment to the Graves Act, 

N.J.S.A. 2C:43-6.2 (section 6.2), which authorizes a prosecutor to move before the assignment judge for a waiver of 

the Graves Act’s mandatory minimum terms of incarceration for certain first-time offenders, was properly applied in 

defendants’ sentencing proceedings. The Court also considers whether sentencing judges have the discretion to 

elect one of the two alternative sentences set forth in section 6.2: to “place the defendant on probation . . . or reduce 

to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole.”

Defendant Nance pled guilty to third-degree unlawful possession of a sawed-off shotgun. As part of that 

agreement, the State was to recommend a sentence of five years’ imprisonment with one year of parole ineligibility. 

At the sentencing hearing, defendant’s counsel requested a reduction in sentence. The sentencing judge suggested 

that he would be inclined to reduce the five-year term of incarceration, but did not believe that he had the authority 

to reduce the mandatory minimum further because of the Graves Act waiver under section 6.2. The judge sentenced 

Nance to a five-year term of incarceration with a one-year period of parole ineligibility.

Defendant Willis-Bolton pled guilty to second-degree unlawful possession of a handgun. The presiding 

judge of the Criminal Part granted the prosecutor’s motion for a reduction of the period of parole ineligibility from 

three years, as prescribed by N.J.S.A. 2C:43-6(c), to one year. The sentencing judge sentenced Willis-Bolton to a 

prison term of three years with one year of parole ineligibility, in accordance with the plea agreement.

Defendant Williams pled guilty to second-degree unlawful possession of a handgun. As part of that plea 

agreement, the prosecutor agreed to request that Williams’s second-degree offense be treated as a third-degree 

offense for purposes of sentencing, and to recommend a sentence of three years’ imprisonment with one year of 

parole ineligibility pursuant to section 6.2, rather than the three-year period of parole ineligibility that would 

otherwise be imposed pursuant to the Graves Act. N.J.S.A. 2C:43-6(c). The State represented to the sentencing 

judge that a Graves Act waiver had been approved, however it did not identify the judge who granted the waiver and 

the record is inconclusive on that issue. Williams was sentenced in accordance with the plea agreement.

Nance, Willis-Bolton, and Williams appealed their sentences. The Appellate Division consolidated their 

appeals, vacated defendants’ sentences and remanded the matters to the respective sentencing courts. 442 N.J. 

Super. 268 (App. Div. 2015). The panel held that the sentencing judges had improperly concluded that they lacked 

the discretion to impose sentences that diverged from the terms recommended by the State as part of defendants’

plea agreements. The panel reasoned that section 6.2 “vests discretion with the sentencing judge to impose either a 

one-year minimum term of parole eligibility or probation conditioned on a custodial term upon the motion for a 

waiver or after a prosecutor approved referral.” Id. at 270. Accordingly, the panel ruled that defendants were 

entitled to be resentenced, with the sentencing courts unrestrained by the terms of the plea agreements. 

The Court granted the State’s petitions for certification in the consolidated cases. 224 N.J. 124 (2016).

HELD: Section 6.2 was misapplied in defendants’ sentencing proceedings and therefore defendants should be 

resentenced. The assignment judge, not the sentencing judge, has the authority to decide whether a defendant will be 

sentenced to a term of probation or a term of incarceration with a one-year period of parole ineligibility. If the 

defendant has been convicted of a first-degree or second-degree Graves Act offense, the assignment judge (or designee)

must consider the presumption of incarceration prescribed by N.J.S.A. 2C:44-1(d) when he or she chooses between the 

probationary and one-year mandatory minimum sentences envisioned by section 6.2.
2

1. The provision at the center of this case, section 6.2, exempts certain first-time offenders convicted of Graves Act 

offenses from the mandatory minimum terms of incarceration that the statute otherwise requires. N.J.S.A. 2C:43-6.2. 

Section 6.2 was enacted to authorize the reduction of sentence for a person convicted of a first offense under the Graves 

Act if the prosecutor makes a motion before the assignment judge stating that the interests of justice would not be 

served by the imposition of the mandatory minimum term under the Graves Act. Pursuant to a 2008 memorandum 

issued by the Administrative Office of the Courts, an assignment judge may delegate his or her authority under section 

6.2 to the presiding judge of the Criminal Part. (pp. 10-14)

2. In construing section 6.2, the Court’s task is to ascertain the Legislature’s intent, reflecting its chosen language, and 

to give the words of the statute their generally accepted meaning. The Court first considers who—the assignment judge 

or the sentencing judge—is authorized by section 6.2 to determine whether the defendant will be sentenced to a term of 

probation or a term of incarceration with a one-year period of parole ineligibility, following the grant of a prosecutor’s 

motion for a waiver under section 6.2. (pp. 14-15)

3. The plain language of section 6.2 reveals a clear legislative intent that the assignment judge, not the sentencing 

judge, has the statutory authority to make such a determination. When an application for a waiver under section 6.2 is 

made, the assignment judge or his or her designee has the authority to choose one of two sentences: he or she “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. Although the 

prosecutor retains the discretion to decide whether to seek a Graves Act waiver in a given case, and may argue in favor 

of a probationary term or a custodial sentence with a one-year period of ineligibility, nothing in the statute suggests that 

the assignment judge or designee must accept the prosecutor’s recommendation. Nor does section 6.2 permit the 

sentencing court to choose between the statutory alternatives; the authority to elect one of the two sentences set forth in 

section 6.2 is clearly vested in the assignment judge. (pp. 15-16)

4. Two of the three cases raise an additional issue not addressed by the Appellate Division: the role of the presumption 

of incarceration prescribed by N.J.S.A. 2C:44-1(d) in the sentencing determination under section 6.2 for a first-degree 

or second-degree Graves Act offender. N.J.S.A. 2C:44-1(d) provides a “serious injustice” exception to the presumption 

of imprisonment, which applies only in extraordinary and unanticipated circumstances and thus imposes a high standard 

that must be overcome before a first or second-degree offender may be sentenced to a non-custodial term. (pp. 17-18)

 

5. The Court construes section 6.2 and N.J.S.A. 2C:44-1(d) so as to harmonize the two components of the Code’s 

sentencing scheme. Nothing in either provision suggests that a Graves Act waiver exempts a defendant convicted of a 

first or second-degree offense from the presumption of incarceration. Because 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:44-1(d), an assignment judge or designee may comply with section 

6.2 and N.J.S.A. 2C:44-1(d) at once. When the defendant has been convicted of a first-degree or second-degree Graves 

Act offense, the assignment judge, or the presiding judge as his or her designee, must consider the presumption of 

incarceration set forth in N.J.S.A. 2C:44-1(d). Following the assignment judge’s or designee’s determination, the 

sentencing court, applying N.J.S.A. 2C:44-2 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; it may impose the 

sentence recommended as part of the plea agreement, but is not required to do so. (pp. 18-21)

6. In each of the three cases consolidated in this appeal, the defendant is entitled to resentencing. The record of 

Nance’s sentencing does not reveal whether the presiding judge made the determination required by section 6.2, and the 

sentencing judge considered himself constrained to accept the sentence recommended as part of the plea agreement. In 

the sentencing of Willis-Bolton, the record is unclear as to whether the presiding judge conducted the determination 

required by section 6.2. In the sentencing of Williams, the parties dispute whether or not the assignment judge decided 

between a probationary sentence and a term of incarceration as prescribed by section 6.2. (pp. 21-24)

The judgment of the Appellate Division is AFFIRMED, in part, and REVERSED, in part, and the 

consolidated cases are REMANDED to the trial court for resentencing in accordance with this opinion. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, 

SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion. 
1

SUPREME COURT OF NEW JERSEY

A-47/48/49 September Term 2015

076626

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SHAQUILLE A. NANCE (a/k/a 

NANCE SHAQUILLE A, NANCE 

SHAQUILLE),

Defendant-Respondent.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

TAJA L. WILLIS-BOLTON (a/k/a 

TAJA BOLTON, TAJA WILLIS, TAJ 

BOLTON, TAJ WILLIS, TAJ 

WILLISBOLTON, TAJA 

WILLISBOLTON,

Defendant-Respondent.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ALVIN D. WILLIAMS,

Defendant-Respondent.

Argued November 7, 2016 – Decided April 5, 2017

On certification to the Superior Court, 

Appellate Division, whose opinion is 
2

reported at 442 N.J. Super. 268 (App. Div. 

2015).

Daniel I. Bornstein, Deputy Attorney 

General, argued the cause for appellant 

(Christopher S. Porrino, Attorney General of 

New Jersey, attorney).

Ruth E. Hunter, Designated Counsel, argued 

the cause for respondents Shaquille A. Nance 

and Taja L. Willis-Bolton (Joseph E. 

Krakora, Public Defender, attorney).

Brian P. Keenan, Assistant Deputy Public 

Defender, argued the cause for respondent 

Alvin D. Williams (Joseph E. Krakora, Public 

Defender, attorney).

JUSTICE PATTERSON delivered the opinion of the Court.

The Graves Act, N.J.S.A. 2C:43-6(c), imposes a mandatory 

minimum term of incarceration on an offender “who uses or 

possesses a firearm while committing, attempting to commit, or 

fleeing after the commission of certain designated crimes.” 

State v. Robinson, 217 N.J. 594, 607 (2014) (quoting State v. 

Stewart, 96 N.J. 596, 601 (1984)). An amendment to the Graves 

Act, N.J.S.A. 2C:43-6.2 (section 6.2), authorizes a prosecutor 

to move before the assignment judge for a waiver of the Graves 

Act’s mandatory minimum terms of incarceration for certain 

first-time offenders. Section 6.2 empowers the assignment judge

(who may delegate his or her authority to the presiding judge of 

the Criminal Part) to “place the defendant on probation . . . or 

reduce to one year the mandatory minimum term of imprisonment 

during which the defendant will be ineligible for parole.” 
3

Ibid. The statute also permits a sentencing judge to refer a 

case to the assignment judge for a waiver of the Graves Act 

penalties. Ibid.

These consolidated sentencing appeals require the Court to 

resolve procedural issues with respect to the application of 

section 6.2. In each case, in accordance with a plea agreement 

between the defendant and the State, the State agreed to 

recommend a sentence of incarceration with a one-year period of 

parole ineligibility. Following the assignment judge’s approval 

of the Graves Act waiver pursuant to section 6.2, each defendant 

was sentenced to a term of incarceration with a one-year period 

of parole ineligibility rather than a probationary term. 

Defendants challenged their sentences on appeal. An Appellate 

Division panel vacated defendants’ sentences and remanded for 

resentencings. The panel held that a sentencing judge has the 

authority to choose between the alternative sentences permitted 

by section 6.2 and that, because the sentencing judges in these 

cases improperly concluded that they lacked the discretion to 

diverge from the sentence recommended by the State in accordance 

with the plea agreement, defendants should be resentenced.

We affirm in part and reverse in part the Appellate 

Division panel’s judgment. We affirm the panel’s determination

that in defendants’ sentencing proceedings, section 6.2 was 

misapplied, and that defendants should therefore be resentenced. 
4

We reverse the panel’s ruling that sentencing judges have 

the discretion to elect one of the two alternative sentences set 

forth in section 6.2. In accordance with the plain language of 

section 6.2, the assignment judge, not the sentencing judge, has 

the authority to decide whether a defendant will be sentenced to 

a term of probation or a term of incarceration with a one-year 

period of parole ineligibility. N.J.S.A. 2C:43-6.2. If the 

defendant has been convicted of a first-degree or second-degree 

Graves Act offense, the assignment judge or designee must 

consider the presumption of incarceration prescribed by N.J.S.A.

2C:44-1(d) when he or she chooses between the probationary and 

one-year mandatory minimum sentences envisioned by section 6.2. 

Accordingly, we remand these matters for resentencing in 

accordance with the procedure prescribed by section 6.2.

I.

A.

On April 19, 2013, defendant Shaquille A. Nance (Nance) 

pled guilty before a Mercer County judge to third-degree 

unlawful possession of a sawed-off shotgun, in violation of 

N.J.S.A. 2C:39-3(b). Nance pled guilty as part of a plea 

agreement that required the State to recommend a sentence of 

five years’ imprisonment with one year of parole ineligibility, 

rather than the three-year period of parole ineligibility that 

would otherwise apply under the Graves Act, subject to the 
5

presiding judge’s approval of a reduction of the Graves Act’s

mandatory minimum.

At Nance’s sentencing hearing, his counsel requested a 

reduction in the sentence recommended under the plea agreement 

from five years with a one-year period of parole ineligibility 

to three years with a one-year period of parole ineligibility. 

Defense counsel cited Nance’s youth, his efforts to obtain an 

education and job training, and the absence of a prior felony on 

his record. The sentencing judge suggested that he would be 

inclined to reduce the five-year term of incarceration 

envisioned by the plea agreement, but did not believe that he 

had the authority to reduce the mandatory minimum further 

because of the Graves Act waiver under section 6.2. The judge 

found aggravating factor nine, “[t]he need for deterring the 

defendant and others from violating the law,” N.J.S.A. 2C:44-

1(a)(9), and “gave partial credit to” both mitigating factor 

seven, the lack of “history of prior delinquency or criminal 

activity,” N.J.S.A. 2C:44-1(b)(7), and mitigating factor twelve, 

“[t]he willingness of the defendant to cooperate with law 

enforcement authorities,” N.J.S.A. 2C:44-1(b)(12). In weighing 

the aggravating and mitigating factors in accordance with 

N.J.S.A. 2C:44-1(a) and (b), the judge sentenced Nance to a 

five-year term of incarceration with a one-year period of parole 

ineligibility. 
6

B.

On February 19, 2013, defendant Taja L. Willis-Bolton

(Willis-Bolton) pled guilty before a Monmouth County judge to 

one count of second-degree unlawful possession of a handgun, 

contrary to N.J.S.A. 2C:39-5(b). Immediately prior to the plea 

hearing, the presiding judge of the Criminal Part granted the 

prosecutor’s motion for a reduction of the period of parole 

ineligibility from three years, as prescribed by N.J.S.A. 2C:43-

6(c), to one year. The plea agreement between the State and 

Willis-Bolton required the State to recommend a sentence of 

three years’ incarceration with a one-year period of parole 

ineligibility. 

At Willis-Bolton’s sentencing, the sentencing judge found 

aggravating factor three, “[t]he risk that the defendant will 

commit another offense,” N.J.S.A. 2C:44-1(a)(3), and aggravating 

factor nine, N.J.S.A. 2C:44-1(a)(9), and found no mitigating 

factors. The judge concluded that the aggravating factors 

predominated. In accordance with the plea agreement, the judge 

sentenced Willis-Bolton to a prison term of three years with one 

year of parole ineligibility. 

C.

On April 8, 2013, defendant Alvin D. Williams (Williams) 

pled guilty before a Union County judge to second-degree 

unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-
7

5(b). Pursuant to the plea agreement between Williams and the 

State, the prosecutor agreed to request that Williams’s seconddegree offense be treated as a third-degree offense for purposes 

of sentencing, and to recommend a sentence of three years’ 

imprisonment with one year of parole ineligibility pursuant to 

section 6.2, rather than the three-year period of parole 

ineligibility that would otherwise be imposed pursuant to the 

Graves Act. N.J.S.A. 2C:43-6(c). Although the State 

represented to the sentencing judge that a Graves Act waiver had 

been approved, it did not identify the judge who granted the 

waiver. Williams contends that the State failed to follow the 

statutory procedure, and the record is inconclusive on that 

issue.

In accordance with the plea agreement, the State asked the 

sentencing judge to sentence Williams as a third-degree 

offender. The judge found aggravating factor three, N.J.S.A.

2C:44-1(a)(3), aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), 

and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7). The judge

determined that the aggravating factors outweighed the 

mitigating factor and sentenced Williams to a term of three 

years’ incarceration with a one-year period of parole 

ineligibility. 

D.
8

Nance, Willis-Bolton, and Williams appealed their sentences 

to the Appellate Division, which consolidated their appeals. An

Appellate Division panel reversed defendants’ sentences and 

remanded the three matters to the respective sentencing courts 

for resentencing. State v. Nance, 442 N.J. Super. 268, 270

(App. Div. 2015). The panel held that the sentencing judges in

all three cases had improperly concluded that they lacked the 

discretion to impose sentences that diverged from the terms of 

incarceration with a one-year period of parole ineligibility 

recommended by the State as part of defendants’ plea agreements. 

Id. at 273. The panel reasoned that section 6.2 “vests 

discretion with the sentencing judge to impose either a one-year 

minimum term of parole eligibility or probation conditioned on a 

custodial term upon the motion for a waiver or after a 

prosecutor approved referral.” Ibid. The panel accordingly 

ruled that defendants were entitled to be resentenced, with the 

sentencing courts unrestrained by the terms of the plea 

agreements. Id. at 275-76.

We granted the State’s petitions for certification in the 

three consolidated cases. 224 N.J. 124 (2016).

II.

The State argues that the Appellate Division panel 

misapplied the plain language of section 6.2, and undermined the 

established procedural framework for Graves Act waivers, when it 
9

concluded that a sentencing court has discretion to sentence a 

defendant convicted of a Graves Act offense to probation without 

the prosecutor’s consent or the assignment judge’s approval. It 

contends that counsel and judges have operated on the assumption

that there is a presumption against probationary sentences in 

Graves Act cases, and notes that the Legislature has not amended 

section 6.2 to eliminate that presumption. The State asserts 

that the presumption of incarceration prescribed by N.J.S.A.

2C:44-1(d), which was not addressed by the panel, governs the 

sentencing of Willis-Bolton and Williams because they were 

convicted of second-degree crimes. 

Defendants urge the Court to affirm the Appellate 

Division’s decision. They contend that a sentencing court is 

not bound by the State’s specific sentencing recommendation, and 

that section 6.2 grants a sentencing judge expansive discretion 

when the defendant is a first-time Graves Act offender. 

Defendants dispute the State’s position that the prosecutor must 

recommend a probationary term for a first-time Graves Act 

offender in order to authorize the sentencing court to impose 

such a term. Willis-Bolton further argues that the presumption 

of incarceration set forth in N.J.S.A. 2C:44-1(d) does not 

supersede section 6.2’s specific mandate that, if a waiver is 

granted, the sentencing court must sentence a first-time Graves 
10

Act offender to either a term of incarceration with a one-year 

parole disqualifier or to a probationary sentence. 

III.

A.

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.” State v. Des Marets, 92 

N.J. 62, 68 (1983); see also State v. Haliski, 140 N.J. 1, 15

(1995). 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).”

Des Marets, supra, 92 N.J. at 64 n.1.1 

 

1 The Graves Act applies to a defendant who has been convicted 

of one of the following offenses: possession of a sawed-off 

shotgun or defaced firearm, N.J.S.A. 2C:39-3(b), (d); possession 

of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); 

possession of a firearm while committing certain drug-related 

offenses or bias intimidation offenses, N.J.S.A. 2C:39-4.1(a); 

unlawful possession of a machine gun, handgun, rifle or shotgun, 

or assault firearm, N.J.S.A. 2C:39-5(a), (b), (c), (f); certain 

persons not to have weapons, N.J.S.A. 2C:39-7(a), (b)(2), 

(b)(3); manufacture, transport, disposition and defacement of 

machine guns, sawed-off shotguns, defaced firearms, or assault 

firearms, N.J.S.A. 2C:39-9(a), (b), (e), (g). N.J.S.A. 2C:43-

6(c). The statute also applies to a defendant who “used or was 

in possession of a firearm” while in the course of committing, 

attempting to commit, or fleeing from the following crimes: 

murder, N.J.S.A. 2C:11-3; manslaughter, N.J.S.A. 2C:11-4; 
11

When defendants were sentenced, the Graves Act imposed 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, or 18 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).2 Although the mandatory minimums are 

prescribed by the Graves Act, the sentencing court weighs the 

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

and exercises discretion over other aspects of the sentence.

See, e.g., N.J.S.A. 2C:44-1(a), (b); N.J.S.A. 2C:44-2; N.J.S.A.

2C:44-5. 

The provision at the center of this case, section 6.2, 

exempts certain first-time offenders convicted of Graves Act 

offenses from the mandatory minimum terms of incarceration that 

the statute otherwise requires. N.J.S.A. 2C:43-6.2. Section 

6.2 “was originally proposed as part of an amendment to 

[N.J.S.A.] 2C:43-6[c] which would, overall, have increased 

 

aggravated assault, N.J.S.A. 2C:12-1(b); kidnapping, N.J.S.A.

2C:13-1; aggravated sexual assault, N.J.S.A. 2C:14-2(a); 

aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); 

robbery, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; and

escape, N.J.S.A. 2C:29-5. N.J.S.A. 2C:43-6(c). 

2 A few months after defendants’ sentences were imposed, the 

Graves Act was amended to increase the periods of parole 

ineligibility for defendants convicted of first-degree, seconddegree, and third-degree offenses to “one-half of the sentence 

imposed by the court or 42 months, whichever is greater.” 

N.J.S.A. 2C:43-6(c) (2013). 
12

mandatory minimum terms,” but the “amendment increasing terms 

was not enacted.” Cannel, New Jersey Criminal Code Annotated, 

comment 1 on N.J.S.A. 2C:43-6.2 (2017); see also Sponsor’s 

Statement to Senate No. 827 (1988) (“This bill increases the 

ordinary and extended minimum mandatory terms of imprisonment 

without parole eligibility for conviction of certain crimes of 

the first and second degree under the Graves Act.”). 

Section 6.2 was enacted to authorize “the reduction of 

sentence for a person convicted of a first offense under the 

Graves Act if the prosecutor makes a motion before the 

assignment judge stating that the interests of justice would not 

be served by the imposition of the mandatory minimum term under 

the Graves Act.” Senate Law, Pub. Safety & Def. Comm., 

Statement to S. No. 827 (1988); see also Assembly Judiciary 

Comm., Statement to S. No. 827 (1988). It provides:

On a motion by the prosecutor made to the 

assignment judge that the imposition of a 

mandatory minimum term of imprisonment under 

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

defendant who has not previously been 

convicted of an offense under that subsection, 

or (b) subsection e. of [N.J.S.A.] 2C:39-10 

for a defendant who has not previously been 

convicted of an offense under chapter 39 of 

Title 2C of the New Jersey Statutes, 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 term of imprisonment 

during which the defendant will be ineligible 

for parole. The sentencing court may also 

refer a case of a defendant who has not 
13

previously been convicted of an offense under 

that subsection to the assignment judge, with 

the approval of the prosecutor, if the 

sentencing 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.]

Pursuant to a 2008 memorandum issued by the Administrative 

Office of the Courts, an assignment judge may delegate his or 

her authority under section 6.2 to the presiding judge of the 

Criminal Part. Administrative Office of the Courts, Memorandum,

Motions in Graves Act Cases – Delegable by Assignment Judge to 

Criminal Presiding Judge (Nov. 21, 2008); see also R. 1:33-6(a)

(authorizing delegation of assignment judge’s authority under 

court rules to presiding judge).

In 2008, the Attorney General issued a Directive regarding 

the application of section 6.2, which was intended to “ensure 

statewide uniformity in the enforcement of the Graves Act, and 

to provide reasonable incentives for guilty defendants to accept 

responsibility by pleading guilty in a timely manner so as to 

maximize deterrence by ensuring the swift imposition of 

punishment.” Attorney General, Directive to Ensure Uniform 

Enforcement of the “Graves Act” (Oct. 23, 2008, as corrected 

Nov. 25, 2008) (Directive) at 4. In the Directive, the Attorney 

General instructed prosecutors to “tender an initial 

standardized plea offer pursuant to [section 6.2] that will in 
14

typical cases result in the defendant serving a State Prison 

term of one year without possibility of parole.” Ibid. The 

Directive charged prosecutors to apply a “strict presumption” 

against a probationary sentence. Id. at 12-13.3

The Directive instructed prosecutors to seek a stay of, and 

appeal, a defendant’s sentence if a court rejects the 

prosecutor’s recommendation by waiving or reducing a mandatory 

minimum term or imposing a probationary term. Directive, supra, 

at 15. As the State notes, the Directive currently governs the 

practice of prosecutors in their applications for relief from 

Graves Act sentences under section 6.2. 

B.

In that setting, we consider the statutory construction 

issues raised by these appeals. As this Court observed in the 

context of a sentencing appeal, “[b]ecause statutory 

interpretation involves the examination of legal issues, it is 

considered a question of law. Accordingly, a de novo standard 

of review applies on appeal.” State in Interest of K.O., 217 

 

3 In a 2014 Clarification to the Directive, the Attorney General 

advised prosecutors that a sentence of non-custodial probation 

or pretrial intervention would be appropriate when “a resident 

of another state brings into New Jersey a firearm that had been 

acquired lawfully and that could be carried lawfully by that 

visitor in the visitor’s home jurisdiction.” Attorney General, 

Clarification of “Graves Act” 2008 Directive with Respect to 

Offenses Committed by Out-of-State Visitors from States Where 

Their Gun-Possession Conduct Would Have Been Lawful (Sept. 24, 

2014) at 1. 
15

N.J. 83, 91 (2014) (citing McGovern v. Rutgers, 211 N.J. 94, 

107-08 (2012); State v. Gandhi, 201 N.J. 161, 176 (2010)). We

therefore review de novo the sentencing courts’ legal 

determinations, affording no special deference to the courts’ 

interpretation of the relevant statutes. 

In construing section 6.2, “[o]ur task is to ascertain the 

Legislature’s intent, reflecting its chosen language, and to 

give the words of the statute ‘their generally accepted 

meaning.’” State v. Bolvito, 217 N.J. 221, 228-29 (2014) 

(quoting State v. Marquez, 202 N.J. 485, 499 (2010)); see also

N.J.S.A. 1:1-1. “When the Legislature’s chosen words lead to 

one clear and unambiguous result, the interpretive process comes 

to a close, without the need to consider extrinsic aids.” State 

v. Shelley, 205 N.J. 320, 323 (2011).

We first consider who -- the assignment judge or the 

sentencing judge -- is authorized by section 6.2 to determine 

whether the defendant will be sentenced to a term of probation

or a term of incarceration with a one-year period of parole 

ineligibility, following the grant of a prosecutor’s motion for 

a waiver under section 6.2. The plain language of section 6.2

reveals a clear legislative intent that the assignment judge, 

not the sentencing judge, has the statutory authority to make 

such a determination. N.J.S.A. 2C:43-6.2. 
16

When an application for a waiver under section 6.2 is made 

by motion of a prosecutor, the assignment judge or his or her 

designee has the authority to choose one of two sentences: he 

or she “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.” Ibid. Although the prosecutor retains 

the discretion to decide whether to seek a Graves Act waiver in 

a given case, and may argue in favor of a probationary term or a 

custodial sentence with a one-year period of ineligibility, 

nothing in the statute suggests that the assignment judge or 

designee must accept the prosecutor’s recommendation. Ibid.

Nor does section 6.2 permit the sentencing court to choose 

between the statutory alternatives; the authority to elect one 

of the two sentences set forth in section 6.2 is clearly vested 

in the assignment judge. Ibid. The sentencing court’s task is 

to devise a sentence that comports with the assignment judge’s 

ruling and the sentencing provisions of the Code; although the 

court may impose the sentence recommended by the State under the 

plea agreement, it is not required to do so. See State v. Hess, 

207 N.J. 123, 151 (2011) (holding that plea agreement may 

include sentence to be recommended by State, but may not 

restrict “the court’s ability to exercise discretion in 

sentencing”); State v. Warren, 115 N.J. 433, 442 (1989) 
17

(“[P]arties can agree only on a sentence that the prosecutor 

will ‘recommend’ to the court; they are not empowered to 

negotiate a sentence that can have any binding effect.”). 

Accordingly, the plain language of section 6.2 resolves the 

first question raised by this appeal. 

Two of the three cases before the Court, which involve the 

sentencing of second-degree Graves Act offenders, raise an 

additional issue not addressed by the Appellate Division: the 

role of the presumption of incarceration prescribed by N.J.S.A.

2C:44-1(d) in the assignment judge’s sentencing determination 

under section 6.2 for a first-degree or second-degree Graves Act 

offender. N.J.S.A. 2C:44-1(d) provides: 

The court shall deal with a person who has been 

convicted of a crime of the first or second 

degree . . . by imposing a sentence of 

imprisonment unless, having regard to the 

character and condition of the defendant, it 

is of the opinion that his imprisonment would 

be a serious injustice which overrides the need 

to deter such conduct by others.

“The ‘serious injustice’ exception to the presumption of 

imprisonment applies only in ‘truly extraordinary and 

unanticipated circumstances,’” State v. Jabbour, 118 N.J. 1, 7 

(1990) (quoting State v. Roth, 95 N.J. 334, 358 (1984)), “where 

the ‘human cost’ of punishing a particular defendant to deter 

others from committing his offense would be ‘too great,’” State 

v. Evers, 175 N.J. 355, 389 (2003) (quoting State v. Rivera, 124 
18

N.J. 122, 125 (1991)). N.J.S.A. 2C:44-1(d) thus imposes a high 

standard that must be overcome before a first or second-degree 

offender may be sentenced to a non-custodial term. 

When, as here, two related statutes are relevant to the 

disposition of a matter, they “should be read in pari materia

and construed together as a unitary and harmonious whole.” Nw.

Bergen Cty. Utils. Auth. v. Donovan, 226 N.J. 432, 444 (2016) 

(quoting Saint Peter’s Univ. Hosp. v. Lacy, 185 N.J. 1, 15

(2005) (internal quotation marks omitted)). As this Court has

observed, 

[w]hen ascertaining legislative intent, we can 

infer that the Legislature was “familiar with 

its own enactments, with judicial declarations 

relating to them, and . . . passed or preserved 

cognate laws with the intention that they be 

construed to serve a useful and consistent 

purpose.” Those principles require us to look 

to related legislation to determine the 

contours of [a] statutory right . . . .

[State v. Greeley, 178 N.J. 38, 46 (2003)

(first omission in original) (emphasis 

omitted) (quoting State v. Federanko, 26 N.J.

119, 129 (1958)).]

We construe section 6.2 and N.J.S.A. 2C:44-1(d) so as to 

harmonize the two components of the Code’s sentencing scheme. 

Nothing in either provision suggests that a Graves Act waiver 

exempts a defendant convicted of a first or second-degree 

offense from the presumption of incarceration. N.J.S.A. 2C:44-

1(d) governs the sentencing of any “person who has been 
19

convicted of a crime of the first or second degree,” with no 

exception for defendants who are granted a Graves Act waiver. 

N.J.S.A. 2C:44-1(d). Because 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:44-1(d), an 

assignment judge or designee may comply with section 6.2 and 

N.J.S.A. 2C:44-1(d) at once. By considering the standard of

N.J.S.A. 2C:44-1(d) in deciding between the probationary and 

custodial sentences authorized by section 6.2, an assignment 

judge or presiding judge achieves the legislative objectives of 

both provisions. 

Indeed, a contrary construction would produce unfair and 

anomalous results. A defendant convicted of second-degree 

robbery committed without the use of a weapon, for example, is 

subject to the presumption of incarceration; absent a finding 

that the presumption is overcome under the “serious injustice”

standard, such a defendant would face a five- to ten-year prison 

term, and may not be sentenced to probation. See N.J.S.A.

2C:15-1(b) (defining second-degree robbery); N.J.S.A. 2C:43-

6(a)(2) (establishing sentencing range for second-degree 

offenses); N.J.S.A. 2C:44-1(d) (prescribing presumption of 

incarceration for second-degree offenses absent finding of 

“serious injustice”). If the presumption of incarceration were 
20

held inapplicable to sentencing determinations under section 

6.2, any Graves Act offender convicted of first-degree robbery -

- committed while armed with, or using or threatening to use, a 

deadly weapon -- could be sentenced to a probationary term

without the need for a finding of “serious injustice.” N.J.S.A.

2C:15-1(b); N.J.S.A. 2C:43-6.2. 

Such a sentencing disparity would not only be inequitable, 

but would also substantially undermine the deterrent objective 

of the Graves Act. “[I]t is axiomatic that statutory 

interpretations that lead to absurd or unreasonable results are 

to be avoided.” Haliski, supra, 140 N.J. at 9; see also Wilson 

ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 573 (2012) 

(rejecting construction of N.J.S.A. 52:17C-10 that would 

generate unintended results). The 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 section 6.2’s 

alternative sentences.

In sum, when the Legislature enacted section 6.2, it 

clearly intended a specific procedure for a Graves Act waiver 

initiated by a prosecutor’s motion. The prosecutor decides 

whether or not to seek a Graves Act waiver under section 6.2 and 

may advocate a particular sentence in the motion. The 

assignment judge, not the sentencing court, has the authority to 

determine whether the defendant will be sentenced to a 
21

probationary term pursuant to N.J.S.A. 2C:43-2, or a term of 

incarceration with a one-year period of parole ineligibility. 

N.J.S.A. 2C:43-6.2. In that determination, the assignment judge 

or designee may accept the prosecutor’s recommendation as to the 

appropriate sentence, but is not bound by that recommendation. 

Ibid.; Hess, supra, 207 N.J. at 151. When the defendant has 

been convicted of a first-degree or second-degree Graves Act 

offense, the assignment judge, or the presiding judge as his or 

her designee, must consider the presumption of incarceration set 

forth in N.J.S.A. 2C:44-1(d). 

Following the assignment judge’s or designee’s 

determination, 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; it may impose the 

sentence recommended as part of the plea agreement, but is not 

required to do so. See N.J.S.A. 2C:44-1; Hess, supra, 207 N.J.

at 151 (citing Warren, supra, 115 N.J. at 447).

C.

We concur with the Appellate Division panel that, in each 

of the three cases consolidated in this appeal, the defendant is

entitled to resentencing. 

The record of defendant Nance’s sentencing for a thirddegree Graves Act offense does not reveal whether the presiding 
22

judge, acting as the assignment judge’s designee, made the 

determination required by section 6.2. Moreover, the sentencing 

judge considered himself constrained to accept the five-year 

sentence of incarceration recommended as part of Nance’s plea 

agreement, notwithstanding the judge’s misgivings about the 

length of that sentence and the non-binding nature of the 

sentencing recommendation. Thus, the sentence did not conform 

to section 6.2. N.J.S.A. 2C:43-6.2. If, on resentencing, the 

assignment judge or her designee elects the term of 

incarceration with a one-year mandatory minimum that was 

advocated by the State, the sentencing judge may impose the 

five-year base term recommended by the State pursuant to the 

plea agreement, but is not required to do so. 

In the sentencing of defendant Willis-Bolton, the record is 

similarly unclear as to whether the presiding judge, acting as 

the assignment judge’s designee, conducted the determination 

required by section 6.2. Accordingly, the assignment judge or 

her designee should determine whether Willis-Bolton should be 

sentenced to a term of probation or a term of incarceration 

pursuant to section 6.2. In that determination, the assignment 

judge or designee must consider the presumption of incarceration 

prescribed by N.J.S.A. 2C:44-1(d), given the second-degree 

charge to which Willis-Bolton pled guilty. The sentencing judge 
23

is afforded discretion to fashion other terms of the sentence in 

accordance with the Code.

In the sentencing of defendant Williams, who pled guilty to 

a second-degree Graves Act charge in accordance with a plea 

agreement that called for him to be sentenced as a third-degree 

offender, the parties dispute whether or not the assignment 

judge (or the presiding judge as her designee) decided between a 

probationary sentence and a term of incarceration with a oneyear mandatory minimum, as prescribed by section 6.2. On 

resentencing, the assignment judge or her designee should make 

that determination, taking into account the presumption of 

incarceration set forth in N.J.S.A. 2C:44-1(d).4 The sentencing 

judge will then determine the remaining aspects of Williams’s

sentence, retaining the discretion to impose the sentence 

recommended in the plea agreement between Williams and the State

or an alternative sentence authorized by the Code’s sentencing 

provisions.

 

4 Notwithstanding the State’s agreement that Williams would be 

sentenced as a third-degree offender rather than a second-degree 

offender, the presumption of incarceration applies. See Evers, 

supra, 175 N.J. at 389 (“The downgrading of an offense is not a 

prerequisite to finding that the presumption of imprisonment for 

a first- or second-degree conviction has been overcome.”); State 

v. Salentre, 275 N.J. Super. 410, 415 (App. Div.), certif. 

denied, 138 N.J. 269 (1994) (“The presumption of imprisonment 

continues, and the presumption against imprisonment does not 

apply, on the downgrading of a second[-]degree crime to third[-]

degree for sentence purposes.”).
24

IV.

The judgment of the Appellate Division is affirmed in part 

and reversed in part, and the consolidated cases are remanded to 

the trial court for resentencing in accordance with this 

opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s 

opinion.