NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1697-24
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
July 10, 2026
v. APPELLATE DIVISION
TYREE I. DWYER,
Defendant-Appellant.
Argued March 10, 2026 – Decided July 10, 2026
Before Judges Sumners, Susswein and Augostini.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 23-09-1913,
24-04-0725 and 24-06-1245.
Alexander G. Leone (Leone Law LLC) argued the
cause for appellant.
Hannah Faye Kurt, Assistant Prosecutor, argued the
cause for respondent (Theodore N. Stephens II, Essex
County Prosecutor, attorney; Hannah Faye Kurt, of
counsel and on the brief).
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
This appeal requires us to examine the tension between the criminal
justice goals of (1) breaking the vicious cycle of addiction and crime by means
of court-ordered substance abuse treatment provided by the Recovery Court
program1 and (2) promoting public safety by assuring stern punishment of gun
offenders through strict enforcement of the Graves Act. 2 The tension between
these two important policy goals is reflected in a series of amendments to the
New Jersey Code of Criminal Justice (penal code), N.J.S.A. 2C:1-1 to 104-9.
Some revisions to the penal code were adopted to facilitate the expansion of
New Jersey's nationally acclaimed Recovery Court program by eliminating
some—but not all—categorical bars to admission. But the penal code has also
been amended to toughen New Jersey's criminal gun laws, significantly
expanding the scope of the Graves Act to include simple unlawful possession of
1
The program was formerly called the Drug Court program.
2
The "Graves Act" is named for Senator Francis X. Graves, Jr., who sponsored legislation in the early 1980s that imposed a mandatory minimum term of imprisonment and parole ineligibility on defendants convicted of certain predicate crimes committed while in possession of a firearm. L. 1981, c. 31; N.J.S.A. 2C:43-6(c). The term "Graves Act" now broadly refers to all firearms offenses that carry a mandatory term of imprisonment and minimum period of parole ineligibility, including unlawful possession of a handgun—the crime defendant pled guilty to in this case. The Graves Act currently mandates a term of imprisonment and period of at least forty-two months of parole ineligibility. N.J.S.A. 2C:43-6(c).
A-1697-24
2
a handgun, upgrading that offense from a third- to a second-degree crime, and
lengthening the minimum period of parole ineligibility from thirty-six to fortytwo months.
These two criminal justice policies intersect in N.J.S.A. 2C:35-14, the
penal code provision that authorizes sentencing courts to order substance abuse
treatment in lieu of imprisonment. That provision supports the Recovery Court
program by providing a means by which qualified defendants may be sentenced
to "special probation," thereby allowing them to avoid an otherwise mandatory
prison term or the strict presumption of imprisonment codified in N.J.S.A.
2C:44-1(d). N.J.S.A. 2C:35-14(a)(5) expressly provides that in order for a
defendant to be eligible for special probation, the sentencing court must find that
they "did not possess a firearm at the time of the present offense" or "at the time
of any pending criminal charge." Since its enactment, this provision has been
interpreted to categorically bar all Graves Act offenders from special probation.
In the present matter, defendant Tyree I. Dwyer proposes a novel
construction of the special probation statute, arguing that in light of the general
legislative policy to promote and expand access to Recovery Court, the firearms
possession disqualification feature in N.J.S.A. 2C:35-14(a)(5) should be
narrowly construed to apply only to the actual possession of a firearm and not
A-1697-24
3
to constructive possession, as was proved in this case. But nothing in the plain
language, legislative history, or historical application of the penal code's
firearms provisions supports the distinction defendant asks us to draw. We
conclude that with respect to the boundaries of special probation, the Legislature
has made clear that convicted gun offenders are not suitable candidates for that
sentencing alternative.
Defendant appeals the June 5, 2024 Law Division order finding him to be
ineligible for admission to Recovery Court based on pending firearms charges,
one of which he eventually pled guilty to. He also appeals the January 7, 2025
aggregate state prison sentence imposed following his guilty plea convictions
for unlawful possession of a firearm and simple possession of controlled
dangerous substances (CDS).
After reviewing the record in light of the governing legal principles, we
affirm the denial of defendant's admission to Recovery Court. Defendant's
firearm conviction renders him categorically ineligible for special probation.
With respect to defendant's sentencing argument, the trial court made
various comments that defendant was "engaged in the drug trade"
notwithstanding that all CDS possession-with-intent-to-distribute charges were
dismissed pursuant to the plea agreement. Those comments may have
A-1697-24
4
influenced the court's decision to find certain aggravating factors, which in turn
influenced its decision to reject defendant's request to be sentenced to a state
prison term one year shorter than the maximum term authorized by the plea
agreement. Because it is unclear on the present record whether and to what
extent the trial court relied on the dismissed charges to find aggravating factors ,
including factors the State had not proposed, we deem it appropriate to remand
for the court to make new findings with respect to the relevant aggravating and
mitigating factors and to determine, in its discretion, whether to impose a shorter
state prison sentence than the maximum term authorized by the plea agreement.
I.
We discern the following pertinent facts and procedural history from the
record. On March 21, 2023, police executed a search warrant at a Newark
residence and found three handguns. Defendant, along with several other
individuals, was present in the house at the time of the search.
On September 29, 2023, defendant was charged by indictment with three
counts of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), one count
of possession of a defaced firearm, N.J.S.A. 2C:39-3(d), two counts of
possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j), and
one count of possession of hollow nose ammunition, N.J.S.A. 2C:39-3(f)(1).
A-1697-24
5
In a separate investigation, on November 16, 2023, officers conducted a
controlled buy of heroin and crack cocaine from defendant and another person,
Leibys Mercedes. 3 Mercedes drove to the prearranged sale; defendant was a
passenger in the car. The officers arrested defendant and Mercedes, observed
bags of heroin and cocaine on defendant's lap, and found a handgun in the car's
center storage compartment.
On November 16, 2023, defendant was charged by complaint-warrant
with possession of a CDS, N.J.S.A. 2C:35-10(a)(1); possession of heroin with
intent to distribute, N.J.S.A. 2C:35-5(b)(3); possession of heroin and a CDS with
intent to distribute within five hundred feet of a school, N.J.S.A. 2C:35-7(a);
possession of heroin and a CDS with intent to distribute within five hundred feet
of a public park, N.J.S.A. 2C:35-7.1(a); possession of a firearm during the
commission of certain CDS distribution/possession-with-intent-to-distribute
crimes, N.J.S.A. 2C:39-4.1(a); and possession of a firearm by a previously
convicted person, N.J.S.A. 2C:39-7(b)(1). Defendant was charged by
indictment with these offenses on June 27, 2024.
Defendant applied for admission to Recovery Court prior to the June 27
indictment but while all offenses charged by complaint-warrant were pending.
3
Mercedes is not a party to this appeal.
A-1697-24
6
The trial court convened a hearing on June 5, 2024 to determine defendant's
legal eligibility for special probation under N.J.S.A. 2C:35-14. The court ruled
that pursuant to N.J.S.A. 2C:35-14(a)(5), defendant was barred from special
probation—and thus precluded from entry into Recovery Court—because the
pending charges included unlawful possession of a firearm.
Defendant filed a motion for reconsideration, which was denied on July
25, 2024. In August 2024, defendant moved for leave to appeal the trial court's
interlocutory ruling. We denied defendant's motion on September 5, 2024, and
the Supreme Court denied his ensuing motion for leave to appeal on November
12, 2024.
On November 18, 2024, defendant pled guilty to one count of seconddegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1), stemming
from the March 21, 2023 incident. He also pled guilty to two counts of thirddegree simple possession of a CDS, N.J.S.A. 2C:35-10(a)(1)—one stemming
from the November 21, 2023 arrest, and another arising from a separate incident
on February 4, 2024. As part of the negotiated plea agreement, the State agreed
to dismiss all remaining charges. The plea agreement provided for an aggregate
A-1697-24
7
state prison sentence of six years with forty-two months of parole ineligibility. 4
The agreement did not preclude defendant from arguing for a shorter prison term
within the second-degree range. On January 7, 2025, defendant was sentenced
in accordance with the plea agreement to an aggregate six-year prison term with
a forty-two-month period of parole ineligibility.
This appeal followed. Defendant raises the following contentions for our
consideration:
POINT I
N.J.S.A. 2C:35-14'S TEXT AND LEGISLATIVE
HISTORY PROVE THAT ALLEGATIONS OF NONVIOLENT CONSTRUCTIVE POSSESSION
CANNOT BAR TRACK ONE CANDIDATES FROM
RECOVERY COURT, AND THE RULE OF LENITY
LEADS TO THE SAME CONCLUSION.
POINT II
THE SENTENCING COURT ABUSED ITS
DISCRETION BY, INTER ALIA, FAILING TO
EXPLAIN CLEARLY WHY AN AGGRAVATING
OR MITIGATING FACTOR PRESENTED BY THE
PARTIES WAS FOUND OR REJECTED AND HOW
THE FACTORS WERE BALANCED TO ARRIVE AT
THE SENTENCE.
POINT III
4
Specifically, the plea agreement authorized a six-year prison term with fortytwo months of parole ineligibility on the gun possession charge, to run concurrent to a five-year prison term for each of the CDS charges.
A-1697-24
8
THE COURT ABUSED ITS DISCRETION BY
REPEATEDLY RELYING ON AN IMPERISSIBLE
BASIS AND CONSIDERING IRRELEVANT AND
INAPPROPRIATE FACTORS.
Defendant further argues in his reply brief that:
POINT I
THE STATE'S LEADING POINT 5 IS FALLACIOUS
AND INCONSISTENT WITH CASELAW.
POINT II
THE STATE ASSERTS THAT THE SENTENCING
COURT "PROPERLY EXPLAINED ITS REASONS"
BUT DOES NOT IDENTIFY ANY EXPLANATION.
POINT III
THE STATE DOES NOT EXPLAIN HOW IT COULD
HAVE BEEN PERMISSIBLE FOR THE COURT TO
USE DISMISSED INDICTMENTS AGAINST
[DEFENDANT] AT SENTENCING.
II.
We first address defendant's novel argument concerning his eligibility for
special probation under N.J.S.A. 2C:35-14. The motion court, relying on
N.J.S.A. 2C:35-14(a)(5), denied defendant's pretrial application to Recovery
5
The State argued in the first point of its appeal brief that "in the context of the [penal] code, and thus N.J.S.A. 2C:35-14, 'possession' includes both actual and constructive possession."
A-1697-24
9
Court because several of the then-pending charges involved possession of a
firearm. As noted, defendant has since pled guilty to a single firearms
possession offense arising from the execution of the search warrant of the
Newark premises.
N.J.S.A. 2C:35-14(a) provides in pertinent part that a person may be
placed on special probation "provided that the court finds on the record that . . .
(5) the person did not possess a firearm at the time of the present offense and
did not possess a firearm at the time of any pending criminal charge." Defendant
argues that this provision should be construed to apply only to actual possession
of a firearm, not to constructive or joint possession. Because the charges were
based on constructive possession—none of the seized firearms were found on
defendant's person—defendant contends he is not statutorily ineligible for
special probation and thus not categorically barred from participating in
Recovery Court.
The gravamen of defendant's novel argument is that the word "possess" as
used in N.J.S.A. 2C:35-14(a)(5) is "at best, ambiguous" as to whether it means
actual possession only, or both actual and constructive possession. Defendant
further argues that because the Legislature has "moved inexorably toward
expanding [N.J.S.A. 2C:35-14] as a sentencing alternative," State v. Harris, 466
A-1697-24
10
N.J. Super. 502, 531 (App. Div. 2021) (alteration in original) (quoting State v.
Figaro, 462 N.J. Super. 564, 571 (App. Div. 2020))—a proposition that we do
not disagree with—we should resolve this purported ambiguity to allow greater
access to Recovery Court. Defendant also contends that the "rule of lenity"
supports his narrowing interpretation of N.J.S.A. 2C:35-14(a)(5).
A.
We begin our analysis by acknowledging the governing legal principles.
Because "appeals construing N.J.S.A. 2C:35-14 . . . present solely questions of
law," we review the motion court's decision de novo. Harris, 466 N.J. Super. at
521 (quoting Figaro, 462 N.J. Super. at 571).
It is well settled that "[t]he overriding goal of all statutory interpretation
'is to determine as best we can the intent of the Legislature, and to give effect to
that intent.'" State v. S.B., 230 N.J. 62, 67 (2017) (quoting State v. Robinson,
217 N.J. 594, 604 (2014)). As a result, "[t]o determine the Legislature's intent,
we look to the statute's language and give those terms their plain and ordinary
meaning because 'the best indicator of that intent is the plain language chosen
by the Legislature.'" State v. J.V., 242 N.J. 432, 442-43 (2020) (first citing
DiProspero v. Penn, 183 N.J. 477, 492 (2005); and then quoting Johnson v.
Roselle EZ Quick, LLC, 226 N.J. 370, 386 (2016)). In DiProspero, our Supreme
A-1697-24
11
Court emphasized that "the Legislature is presumed to be aware of judicial
construction of its enactments." 183 N.J. at 494 (quoting N.J. Democratic Party,
Inc. v. Samson, 175 N.J. 178, 195 n.6 (2002)).
Turning to substantive legal principles, "[t]he law recognizes three
distinct forms of possession, actual, constructive, and joint." State v. Morrison,
188 N.J. 2, 14 (2006) (citing State v. Spivey, 179 N.J. 229, 236 (2004)). A
person has actual possession of an object if "he has physical or manual control
over it." Ibid. (quoting Spivey, 179 N.J. at 236). A person has constructive
possession when, "although he lacks 'physical or manual control,' the
circumstances permit a reasonable inference that he has knowledge of [the
object's] presence, and intends and has the capacity to exercise physical control
or dominion over it during a span of time." Ibid. (quoting Spivey, 179 N.J. at
237). In Spivey, our Supreme Court determined that "possession" as used in
N.J.S.A. 2C:39-4.1(a)—one of defendant's pending charges when he applied to
Recovery Court—includes both actual and constructive possession. 179 N.J. at
236-37.
B.
Applying these principles to the specific provision at issue, we conclude
that the term "possess" as used in N.J.S.A. 2C:35-14(a)(5) is not limited to actual
A-1697-24
12
possession but also includes constructive possession. At the time the statute was
enacted, our courts had long interpreted "possession" in the penal code —
including in the definitions of firearm possession offenses—to include
constructive possession. See Spivey, 179 N.J. at 236 ("We begin our analysis
by noting that an object may be actually or constructively possessed.");
Morrison, 188 N.J. at 14 ("The law recognizes three distinct forms of possession,
actual, constructive, and joint."); State v. Schmidt, 110 N.J. 258, 270 (1988)
(noting that "[i]n the absence of a statutory definition of the act of possession,
our Code assumes that pre-Code concepts of possession would survive,"
including the principle that "possession can be either actual or constructive"
(internal quotation marks and citations omitted)); State v. Stewart, 96 N.J. 596,
604 (1984) ("[P]ossession of a firearm for purposes of the Graves Act includes
not only actual possession but constructive possession that the defendant is able
to convert practically immediately to actual possession."). We reiterate that w e
must presume that when the Legislature enacted N.J.S.A. 2C:35-14(a)(5) and
used the term "possession," it was familiar with the case law construing that
term with respect to substantive firearms crimes. See DiProspero, 183 N.J. at
494.
A-1697-24
13
While N.J.S.A. 2C:35-14 is codified in chapter 35 of the penal code
(Controlled Dangerous Substances), rather than the chapters devoted to
sentencing—chapter 43 (Authorized Disposition of Offenders) and chapter 44
(Authority of Court in Sentencing)—special probation is a sentencing feature,
and thus should be construed in context with other sentencing provisions of the
penal code. It bears repeating that other penal code sentencing provisions
pertaining to firearms do not distinguish between actual and constructive
possession. See Stewart, 96 N.J. at 604. Unlawful conduct constituting
constructive possession of a handgun is graded as a second-degree crime, no
different from actual possession of a handgun. Convictions based on both
theories, moreover, are subject to the same presumption of imprisonment,
N.J.S.A. 2C:44-1(d); range of authorized sentences, N.J.S.A. 2C:43-6(a)(2); and
mandatory minimum period of parole ineligibility, N.J.S.A. 2C:43-6(c).
Defendant expressly acknowledges, as he must, that "in the Graves Act
statutory framework actual and constructive possession are generally treated
similarly." However, he argues that because the purpose of the Graves Act
(deterring the use and possession of firearms) is "fundamentally different" from
that of N.J.S.A. 2C:35-14 (rehabilitation for those with a substance use
A-1697-24
14
disorder), we should not reflexively import the meaning of "possession" from
the Graves Act into the special probation statute.
We are unpersuaded. Without exception, the term "possession" as used in
the penal code with respect to firearms includes both actual and constructive
possession. Stated another way, when using the term "possession," the penal
code does not differentiate between actual possession, joint possession, and
constructive possession of a firearm.
While the underlying purpose of N.J.S.A. 2C:35-14 is unquestionably
different from the purpose that undergirds the Graves Act, the Legislature has
resolved the conflict between the objectives of these two sentencing provisions
by making clear that the immediate public safety goal advanced by the Graves
Act takes precedence over the long-term rehabilitative goal advanced by
permitting sentencing courts to order substance abuse treatment in lieu of
imprisonment. In this instance, the Legislature by the plain language of N.J.S.A.
2C:35-14(a)(5) has stated unequivocally that gun offenders are not eligible for
special probation and thus may not participate in the Recovery Court program.
C.
We likewise are unpersuaded by defendant's reliance on amendments to
other subsections of N.J.S.A. 2C:35-14 to support his novel construction of
A-1697-24
15
subsection (a)(5). We do not dispute that the amendments to the special
probation statute over time have expanded its reach to allow more defendants to
participate in Recovery Court. 6 But none of those revisions impacts N.J.S.A.
2C:35-14(a)(5), the provision that expressly makes gun offenders ineligible.
That feature was added as part of the 1999 amendments to the statute, L. 1999,
c. 376, § 2, and has not been modified since. For that reason, defendant's
reliance on several passages in State v. Hyland, 238 N.J. 135 (2019), is
misplaced, as those passages refer to the 2012 amendments to N.J.S.A. 2C:35-14, which, notably, left N.J.S.A. 2C:35-14(a)(5) unchanged. The 2012
amendments show conclusively that the Legislature knows how to amend
N.J.S.A. 2C:35-14 to eliminate or relax eligibility prerequisites but did not
amend the categorical disqualification feature in N.J.S.A. 2C:35-14(a)(5). We
presume the legislative decision to repeal some disqualifying circumstances but
6
See, e.g., Harris, 466 N.J. Super. at 531 ("The proven success of the [Recovery] Court program . . . has given the Legislature incentive and confidence to amend N.J.S.A. 2C:35-14 to expand the circumstances when sentencing courts may eschew imprisonment in favor of rehabilitative treatment."); State v. Hyland, 238 N.J. 135, 145 (2019) (recognizing that the 2012 amendments to the statute sought "to permit additional offenders who may benefit from the [Recovery Court] program to be diverted into the program instead of being sentenced to a term of incarceration" (quoting S. Budget & Appropriations Comm. Statement to S. 881 1 (L. 2012, c. 23))).
A-1697-24
16
not others was intentional. Cf. DiProspero, 183 N.J. at 495 ("The canon of
statutory construction, expressio unius est exclusio alterius—expression of one
thing suggests the exclusion of another left unmentioned—sheds some light on
the interpretative analysis." (quoting Brodsky v. Grinnell Haulers, Inc., 181 N.J.
102, 112 (2004))).
Relatedly, it bears emphasis that each time the Legislature expanded
eligibility for special probation, it did so expressly and explicitly. Defendant
cites nothing in the text or legislative history of N.J.S.A. 2C:35-14 to suggest
the Legislature ever meant to allow any convicted gun offenders to be admitted
to the Recovery Court program.
In sum, while various statutory amendments have indeed expanded the
Recovery Court program's reach, those changes have all been codified in explicit
statutory text.7 This shows conclusively that when the Legislature wants to
enlarge the pool of potential Recovery Court candidates by altering the
7
For example, the 1999 amendments expanded eligibility for special probation to defendants convicted of certain non-violent crimes other than drug-related offenses, Harris, 466 N.J. Super. at 531-32 (citing L. 1999, c. 376, § 2), and the 2012 amendments expanded special probation to no longer exclude defendants convicted of second-degree robbery and second-degree burglary, id. at 532 (citing L. 2012, c. 23, § 5). We note the Legislature did not include defendants convicted of armed robbery.
A-1697-24
17
eligibility/ineligibility provisions of N.J.S.A. 2C:35-14, it does so with precise
statutory language. See also note 8.
For all the foregoing reasons, defendant's contention that the amendments
to subsections of N.J.S.A. 2C:35-14 that do not involve gun offenses impliedly
altered the meaning of N.J.S.A. 2C:35-14(a)(5) is unavailing. In reaching that
conclusion, we acknowledge that under the rule of lenity, ambiguities that
"cannot be resolved by analysis of the relevant text and the use of extrinsic aids
. . . [must] be resolved in favor of the defendant." State v. O'Donnell, 255 N.J.
60, 81 (2023) (alteration in original) (quoting State v. Regis, 208 N.J. 439, 451
(2011)). However, the rule of lenity only applies "if the statute still remains
ambiguous" "after reviewing all sources of legislative intent." Ibid. (quoting
State v. D.A., 191 N.J. 158, 165 (2007)). Here, there is no ambiguity in N.J.S.A.
2C:35-14(a)(5) with respect to the categorical exclusion of persons presently
charged with or eventually convicted of any gun offense. Accordingly,
defendant's guilty plea conviction for unlawful possession of a weapon renders
him ineligible for special probation and Recovery Court.
D.
Finally, we note that in the absence of explicit legislative instruction, the
policy shift defendant urges should not be made by a court based solely on the
A-1697-24
18
Legislature's general support for Recovery Court. That is especially true given
that the Legislature has just as clearly shown its support for stern punishment
for handgun possession crimes without distinguishing between actual, joint, or
constructive possession. It bears noting with respect to the role of courts in
implementing the Graves Act that we have been instructed by our Supreme
Court to strictly adhere to it and not allow, for example, plea negotiations to
evade its stern penal consequences except as may be authorized pursuant to
N.J.S.A. 2C:43-6.2.8 See Admin Off. of the Cts., Admin. Directive #09-18,
Guidelines for Downgrades/Dismissals Under the Graves Act: Strict
Enforcement of Mandatory Minimum Custodial Terms for Offenses Involving
Firearms (July 2, 2018).
The point simply is that the policy decision at the heart of this case must
be made by the Legislature. We add on that score that the Legislature has
recognized that addiction and handgun possession is a dangerous combination.
See, e.g., N.J.S.A. 2C:58-3(c)(3) (barring a person with a substance use disorder
8
That section of the penal code authorizes a motion by the prosecutor to the assignment judge to reduce or even eliminate the period of parole ineligibility. See also N.J.S.A. 2C:43-6.3 (authorizing the resentencing of persons serving a Graves Act sentence to reduce or eliminate the period of parole ineligibility ). These two provisions confirm that the Legislature knows how to create exceptions to the Graves Act and that when it chooses to do so, those exceptions are codified in explicit statutory text.
A-1697-24
19
from receiving a handgun purchase permit or firearms purchaser identification
card). The Recovery Court process is prepared to deal with a defendant who
relapses and possesses CDS in violation of special probation. See N.J.S.A.
2C:35-14(f)-(g) (outlining comprehensive procedures and standards governing
the revocation of special probation upon a violation of a term or condition of the
program); see also State v. Clarke, 203 N.J. 166, 181 (2010) (recognizing that
"the disease of drug or alcohol dependence is a chronic, relapsing disorder"
(quoting S. L. & Pub. Safety Comm. Statement to S. 1253 (Jan. 25, 1999))). But
if a Recovery Court participant gained access to a handgun, it could expose a
host of new dangers that the program is not designed to handle.
Only the Legislature can gauge public sentiment regarding the sentencing
of drug-dependent gun offenders and whether public support for Recovery Court
might be impacted if handgun offenders were offered treatment in lieu of
mandatory imprisonment, especially if a gun-related tragedy were to occur
during the treatment process. As noted, in Harris, we commented on "[t]he
proven success of the [Recovery] Court program" and the "broad recognition by
all three branches that it promotes public safety," which has "given the
Legislature incentive and confidence to amend N.J.S.A. 2C:35-14 to expand the
circumstances when sentencing courts may eschew imprisonment in favor of
A-1697-24
20
rehabilitative treatment." 466 N.J. Super. at 531. We have no way of knowing,
however, whether the program would be as successful with respect to drugdependent gun offenders, or whether making such offenders eligible for special
probation would promote or denigrate public safety. That is a policy
determination for the Legislature to make, and as we have explained, it is clear
to us that the Legislature has, for now, made its decision.
III.
We next address defendant's sentencing contentions. Defendant argues
the trial court (1) failed to satisfactorily explain how it found and weighed the
aggravating and mitigating factors, (2) impermissibly relied on defendant's
dismissed indictments, and (3) erroneously found aggravating factors one and
five and rejected mitigating factors one and two without credible evidence in the
record. Additionally, he argues that various comments by the court at sentencing
"arguably evidenced hostility to [defendant's] right to be heard in accordance
with due process."
A.
As we have noted, the negotiated plea agreement contemplated a
maximum six-year prison term with forty-two months of parole ineligibility on
the gun possession charge, to run concurrent to five-year sentences for each of
A-1697-24
21
the CDS possession convictions. At the sentencing hearing, defendant asked the
court to reduce the six-year sentence to five years but otherwise urged the court
to effectuate the plea agreement. In support of that proposed deviation from the
maximum negotiated prison term, defendant argued that no aggravating factors
applied and that numerous mitigating factors applied. Specifically, defendant
argued that the charges to which he pled guilty had no victim or injury. With
respect to the handgun possession charge, defendant stressed there was no
allegation that he used the gun to harm or threaten anyone, and, defendant
emphasized, the two CDS convictions were for simple possession, not
distribution or possession with intent to distribute. Defendant thus argued that
aggravating factors one ("The nature and circumstances of the offense, and the
role of the actor in committing the offense, including whether or not it was
committed in an especially heinous, cruel, or depraved manner") and two ("The
gravity and seriousness of harm inflicted") should not apply, and that mitigating
factors one ("The defendant's conduct neither caused nor threatened serious
harm") and two ("The defendant did not contemplate that the defendant's
conduct would cause or threaten serious harm") should apply. N.J.S.A. 2C:44-1(a)(1)-(2), (b)(1)-(2).
A-1697-24
22
In response to defense counsel's allocution, the trial court asked, "Is it
your position that being engaged in the drug trade does not cause or threaten
serious harm to the community?" When defense counsel pointed out that
defendant had only pled guilty to simple possession of CDS, not distribution or
possession with intent to distribute, the court stated, "Well that's what he pled
to, that's not what he did." The court further explained:
[Y]ou are asking me to make a finding that there's
mitigation here when we know that this is a negotiated
plea, which is constructed as a way of effectively
ending six indictments that your client has collected
over basically a two-year period.
And so the fact that he . . . has not been tried and
will not be convicted of [the dismissed charges] is
really a matter of happenstance isn't it?
Defendant also argued that mitigating factors four ("There were
substantial grounds tending to excuse or justify the defendant's conduct, though
failing to establish a defense") and ten ("The defendant is particularly likely to
respond affirmatively to probationary treatment") should apply, contending that
defendant's conduct was caused by his drug addiction. N.J.S.A. 2C:44-1(b)(4),
(10). In response, the trial court asked, "What steps did he take to address his
addiction [while] incarcerated?" Defense counsel replied that he did not have
any information regarding treatment defendant received in jail.
A-1697-24
23
Additionally, defendant argued that mitigating factors eight ("The
defendant's conduct was the result of circumstances unlikely to recur") and nine
("The character and attitude of the defendant indicate that the defendant is
unlikely to commit another offense") should apply. N.J.S.A. 2C:44-1(b)(8), (9).
In response, the court noted defendant's history of reoffending:
[T]o be clear, your client was a convicted felon before
the first indictment here was filed . . . .
So even though he had already had a taste of the
criminal justice system, he picked up six additional
indictments, and while he was out on one case . . . he
picked up more indictments . . . .
So for you to tell me that there's no risk he's going
to reoffend, that's exactly what he did, he continued a
crime spree while he was subject to the jurisdiction of
this [c]ourt without regard[] to the conditions of his
release, which is why he spent the rest of the remaining
time awaiting the resolution of these cases in rather
than out, because he was rearrested and reindicted.
So for you to suggest to me that he's unlikely to
reoffend, it rings a little [hollow].
The State argued at the sentencing hearing that no mitigating factors
applied, and that aggravating factors three, six, and nine applied. During the
State's allocution, the court sua sponte suggested that aggravating factors one
and five should apply. Specifically, the court referred to and drew inferences
from the circumstances of defendant's arrest, noting:
A-1697-24
24
With specific regard to aggravating factor number
[one], you're saying . . . you're in a stash house, and
there's no allegation or suggestion made by the defense
that he was living there, it just happened to be activity
that was ongoing and he happened to be merely present
for that, why wouldn't I consider aggravating factor
number [one]?
Additionally, regarding aggravating factor five ("There is a substantial
likelihood that the defendant is involved in organized criminal activity ,"
N.J.S.A. 2C:44-1(a)(5)), the court engaged in the following colloquy with the
prosecutor:
The Court: I mean the stash house was a target, that's
how you got a search warrant, correct?
[Prosecutor]: Yes.
The Court: You made a case to a sitting Superior Court
judge who was satisfied that there [were] sufficient
proofs based on sworn affidavits that there would be
guns and drugs found there.
[Prosecutor]: Correct.
The Court: And when the warrant was executed there
were guns and drugs found there, correct?
[Prosecutor]: Correct.
The court ultimately imposed a six-year sentence, in accordance with the
plea agreement. The court first noted that
A-1697-24
25
defendant's adult record is of serious concern, and I
believe intensely relevant not only to the plea that the
State negotiated, but also to the aggravating and
mitigating factor analysis . . . and it also in my view
undermines counsel's application that I deviate from the
negotiated plea to the benefit of the defendant.
The court then recounted defendant's criminal history dating back to 2017,
which included "[thirteen] known arrests, [three] prior indictable convictions,
[two] disorderly persons convictions, [two] prior bench warrants, [and] [two]
violations of probation."
Next, the court concluded that no mitigating factors applied, stating:
The defendant did get the benefit of probation,
and if all of this was driven by a drug problem, the time
to have addressed it was in 2020 when he was placed
on probation, and that apparently never happened.
And then when he was out on the first of these
indictments and subject to pretrial detention, that would
have been an additional time he could have sought
treatment, but he didn't.
I have a copy of a letter from an entity called
Catholic Charities Straight and Narrow, Inc., which
apparently was a long-term residential program, in
which he was subject to—he was apparently scheduled
for admission in a Paterson facility in May of 2024. But
in that period, beginning approximately February 16,
2024, he had picked up new indictments . . . .
So perhaps I don't know when this application
was made to go into inpatient, but while he was waiting
to go in inpatient he was involved in additional illegal
A-1697-24
26
activity that resulted in additional indictments now
before the Court.
So I reject all of the mitigating factors that the
defendant has provided here. I find no mitigation.
The court then found aggravating factors one, three, five, six, and nine.
The court noted that "[d]efendant had the benefit of the probation and his
response to that was to commit more crimes." With respect to factor nine ("The
need for deterring the defendant and others from violating the law," N.J.S.A.
2C:44-1(a)(9)), the court observed that "in so many instances it is boilerplate,
but not here, absolutely not here." The court further added, "I reject any
suggestion that . . . engaging in the sale of narcotics is a victimless crime," again
without acknowledging that in this case, defendant had not pled guilty to selling
or distributing CDS. Ultimately, the court concluded that "the aggravating
factors far preponderate over the mitigating factors" and "weigh in favor of a
custodial term towards the higher end of the range." The court therefore
sentenced defendant to the maximum state prison sentence permitted under the
plea agreement.
B.
Once again, we preface our analysis by canvassing the governing legal
principles, including the limited scope of our review. "Appellate courts review
A-1697-24
27
sentencing determinations in accordance with a deferential standard." State v.
Fuentes, 217 N.J. 57, 70 (2014). A reviewing court must not substitute its
judgment for that of the sentencing court. State v. O'Donnell, 117 N.J. 210, 215
(1989). Accordingly, the sentence must be affirmed unless:
(1) [T]he sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[Fuentes, 217 N.J. at 70 (quoting State v. Roth, 95 N.J.
334, 364-65 (1984)).]
Stated another way, we may modify a defendant's sentence only when
convinced that the sentencing judge was clearly mistaken. State v. Johnson, 118
N.J. 10, 15 (1990); State v. Jabbour, 118 N.J. 1, 6 (1990). Furthermore, "'[a]
sentence imposed pursuant to a plea agreement is presumed to be reasonable'
because it is predicated on the defendant's voluntary, knowing waiver of his
constitutional rights." State v. Bell, 250 N.J. 519, 542 (2022) (quoting Fuentes,
217 N.J. at 70-71 (2014)).
The aggravating and mitigating factors a trial court may consider in
imposing a sentence are set forth in N.J.S.A. 2C:44-1(a) and (b). It is wellestablished that the consideration of aggravating and mitigating factors must be
A-1697-24
28
part of the deliberative process. State v. Dalziel, 182 N.J. 494, 505 (2005); State
v. Cassady, 198 N.J. 165, 180 (2009). Trial courts must "explain and make a
thorough record of their findings to ensure fairness and facilitate review." State
v. Comer, 249 N.J. 359, 404 (2022). "Proper sentencing thus requires an explicit
and full statement of aggravating and mitigating factors and how they are
weighed and balanced." State v. McFarlane, 224 N.J. 458, 466 (2016) (quoting
State v. Randolph, 210 N.J. 330, 348 (2012)); see also State v. Case, 220 N.J.
49, 66 (2014) ("[C]ritical to the sentencing process and appellate review is the
need for the sentencing court to explain clearly why an aggravating or mitigating
factor presented by the parties was found or rejected and how the factors were
balanced to arrive at the sentence.").
Relatedly, "'[a]lthough our case law does not require that trial courts
explicitly reject every mitigating factor argued to the court,' such a practice is
encouraged." Fuentes, 217 N.J. at 73 (quoting State v. Bieniek, 200 N.J. 601,
609 (2010)). If the trial court "fails to provide a qualitative analysis of the
relevant sentencing factors on the record" or "considers an aggravating factor
that is inappropriate to a particular defendant or to the offense at issue," an
appellate court "may remand for resentencing." Id. at 70.
A-1697-24
29
Finally, and of special importance for purposes of the present appeal, the
law is well settled that a charge that does not result in a conviction may be
considered in sentencing, as "[a]dult arrests that do not result in convictions may
be relevant to the character of the sentence . . . imposed." State v. Rice, 425
N.J. Super. 375, 382 (App. Div. 2012) (quoting State v. Tanksley, 245 N.J.
Super. 390, 397 (App. Div. 1991)). However, and of special relevance in the
present matter, "[t]he important limitation of course is that the [court] shall not
infer guilt as to any underlying charge with respect to which the defendant does
not admit his guilt." State v. Green, 62 N.J. 547, 571 (1973), overruled on other
grounds by State v. K.S., 220 N.J. 190 (2015).
C.
Applying the foregoing principles to the present facts, we conclude that
in light of the trial court's articulation of the reasons for its findings and its
colloquy with both counsel during their respective allocutions, the court erred
in finding aggravating factors one and five—which, we note, the prosecutor did
not ask to be considered. In this instance, the fact that defendant was arrested
at what police reports described as a "stash house," without more, does not make
his proven offense conduct "especially heinous, cruel, or depraved" or
demonstrate a substantial likelihood of involvement in organized criminal
A-1697-24
30
activity. N.J.S.A. 2C:44-1(a)(1), (5). We reiterate that defendant only pled
guilty to simple possession CDS offenses.
While this is a close case and we are generally reticent to second-guess a
sentencing court with respect to the factual basis for aggravating and mitigating
factors, out of an abundance of caution, we deem it appropriate to remand for
the trial court to reconsider its findings with respect to the aggravating and
mitigating factors as they relate to defendant's request to deviate from the
maximum sentence contemplated in the plea agreement. We offer no opinion
on whether a five- or six-year prison sentence should be imposed.
To the extent we have not specifically addressed them, any remaining
arguments raised by defendant lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirmed in part and reversed and remanded in part for proceedings
consistent with this opinion. We do not retain jurisdiction.
A-1697-24
31