On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 86-05-0504.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Following a jury trial, defendant Luis Del Orbe was convicted of two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), (2); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); fourth-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(4); first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); as well as one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). After appropriate mergers, defendant was sentenced to an aggregate term of imprisonment of forty years with a nineteen and one-half years of parole ineligibility. The term was to run consecutive to a six-year sentence being served in New York State.
According to defendant's recitation of the facts, the offense prompting the sentence occurred in January 1986, when defendant and a co-defendant kidnapped the two victims, struck one of them with a flashlight, ordered the victims at gunpoint to exit the vehicle in a dark wooded area, emptied their pockets, stripped them of their outergarments and shoes and left them to find their way back home. Although the kidnapping occurred in Passaic, the victims were found by a police office in Mt. Olive, some distance away.
In April 2004, defendant moved for review of his sentence*fn1 pursuant to N.J.S.A. 2C:43-6.3, (section 6.3) the "escape valve" provision of the Graves Act. N.J.S.A. 2C:43-6c. That motion was denied on procedural grounds and was followed by a second motion seeking the same relief, which, following a hearing, was denied as well. In both instances, the prosecutor refused to consent to the relief requested. This appeal followed.
Defendant sought relief from his sentence under section 6.3, which provides: Any person who, on the effective date of this act, is serving a mandatory minimum sentence as provided for by subsection c. of N.J.S. 2C:43-6, who has not been previously convicted under that subsection, and has not had his sentence suspended or been paroled or discharged, may move to have his sentence reviewed by the Assignment Judge for the sentencing court. If the prosecutor agrees that the sentence under review does not serve the interests of justice, the judge shall reduce the mandatory minimum tern of imprisonment without parole eligibility one year or place the person on probation pursuant to paragraph (2) of subsection b. of N.J.S. 2C:43-2. [N.J.S.A. 2C:43-6.3.]
The statute provides for relief from the imposition of a Graves Act sentence and permits review of the sentence by the Assignment Judge.*fn2 The judge may review the sentence and grant relief when two conditions are met -- the sentence under review does not serve the interests of justice and the prosecutor agrees. In such case, the mandatory sentence shall be reduced to one year or defendant may be placed on probation.
Here the prosecutor refused to consent. He first asserted that he would not consent to the relief until defendant served the mandatory minimum parole ineligibility. Although he alluded to the nature of the offense during argument before the motion judge, in his brief on appeal, he also focuses on the violent nature of the offense as a basis for refusal to consent. As he notes in his brief:
Similarly, no arbitrariness or capriciousness was demonstrated by the State here where the victims were abducted, terrorized and had a large gun put to their faces. The gun was placed to the victims' ears with the trigger cocked. The victims were also pistol-whipped. The victims' clothing was soaked with blood from the victims having been handcuffed and then pistol-whipped. As the original prosecutor stated on the record: "They [the victims] were brought to the point where they had no reason but to think they were going to be killed." The victims were left in the bitter cold, and their clothing was taken from them. They were barefoot. "This is a frightening kind of kidnapping."
On appeal, defendant asserts:
THE PROSECUTOR'S REASONS FOR NOT AGREEING THAT DEFENDANT'S SENTENCE NO LONGER SERVES THE INTEREST OF JUSTICE GOES DIRECTLY AGAINST THE LANGUAGE ...