July 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS DEL ORBE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 25, 2010
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 OF N.J.S. 2C:43-6.3 (not raised below).
THE PASSAIC COUNTY PROSECUTOR'S OFFICE REFUSAL TO GIVE DEFENDANT A MEANINGFUL REVIEW IS A PATENT ABUSE OF DISCRETION (not raised below).
THE COURT ERRED IN ITS INTERPRETATION OF N.J. Super. 2C:43-6.3 AND THE ISSUES CONSIDERED FOR FINAL DECISION (not raised below).
In State v. Alvarez, 246 N.J. Super. 137 (App. Div. 1991), we addressed the constitutionality of N.J.S.A. 2C:43-6.2 (section 6.2), a companion provision to section 6.3. In holding section 6.2 constitutional, we noted that this section applies for sentences imposed after the effective date of the Graves Act, while section 6.3 applies to convictions and sentences imposed prior to the effective date of the statute. Id. at 140.
We concluded that the statute was constitutional even though it appears to mandate a sentencing result as determined by the prosecutor; we also recognized that a court may still review the actions of the prosecutor to determine whether the prosecutor has acted arbitrarily. Id. at 146. We noted that section 6.2 "is constitutional because the Assignment Judge has the ultimate authority to decide whether the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the 'interests of justice' warrant reference to the Assignment Judge." Id. at 147.
We recognize that the procedure under section 6.2 requires the prosecutor to initiate the proceeding for relief from the Graves Act provisions. Under section 6.3, defendant initiates the process, and the prosecutor must consent for the application to proceed forward. Notwithstanding this procedural difference, the constitutional analysis and review of the prosecutor's conduct remains the same. In Alvarez, we noted that we would read both statutes as requiring prosecutorial consent. Id. at 141 n. 3.
Here, the prosecutor refused to consent. He first asserted that he would not consent until defendant served his minimum mandatory parole time, a position we find quizzical as section 6.3 is designed to obtain relief from at least a portion of that sentence. He then alluded to the details of the offense, its violent nature, the impact on the victims and other relevant factors. The judge agreed and found no arbitrary conduct on the prosecutor's part.
We apply the same standard of review applicable to section 6.2; "a prosecutor's decision not to pursue or endorse an application . . . will not be disturbed on appeal unless arbitrary, capricious, or unduly discriminatory." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:43-6.2.
See also State v. Mastapeter, 290 N.J. Super. 56, 64-65 (App. Div.), certif. denied, 146 N.J. 569 (1996).
We discern no error in the judge's ultimate conclusion. While we have some question as to the propriety of the prosecutor withholding consent on the grounds that defendant had not yet served the mandatory minimum, we need not address or resolve that issue because the details of the offense support the view that the interests of justice standard, as a basis for reducing the sentence, have not been met. We are mindful of the substantial progress defendant has made while incarcerated, but that, standing alone, does not provide a sufficient basis for finding that the prosecutor's refusal to consent was arbitrary or unreasonable. The judge did not err in denying defendant's motion.