In other words, we cannot agree that a defendant may bring a motion for a change or reduction of a Graves Act sentence years after the sentence is imposed, as occurred in this case, by arguing that the prosecutor's decision made at that time was "arbitrary, capricious, or unduly discriminatory." State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div.), certif. denied, 146 N.J. 569 (1996). As noted in Alvarez, a defendant should make such motion before the sentencing judge. Alvarez, supra, 246 N.J. Super. at 140.
Statev. Mastapeter, 290 N.J.Super. 56, 64, 674 A.2d 1016 (App.Div.), certif. denied, 146 N.J. 569, 683 A.2d 1164 (1996). N.J.S.A. 2C:44-5(b) provides for "gap-time" credits:
A defendant must show the prosecutor "arbitrarily or unconstitutionally discriminated against a defendant in determining whether the 'interests of justice' warrant reference to the assignment judge." State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div. 1996) (quoting Alvarez, 246 N.J. Super. at 147). At sentencing, defense counsel argued the case was appropriate for a Graves Act waiver and the State's refusal to grant a waiver was arbitrary and capricious.
Because the prosecutor did not agree to seek a Section 6.2 waiver, the burden rests upon defendant, who must show "the prosecutor arbitrarily or unconstitutionally discriminated" against a defendant when making the determination. State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div.), certif. denied, 146 N.J. 569 (1996). The judicial discretion embodied in examination of a prosecutor's Section 6.2 waiver decision -- that is, whether a custodial sentence "does not serve the interest of justice" -- is an objective legal standard based on the facts presented.
State v. Alvarez, 246 N.J. Super. 137, 140 (App. Div. 1991); State v. Mastapeter, 290 N.J. Super. 56, 64-65 (App. Div.), certif. denied, 146 N.J. 569 (1996). Under the Attorney General Directive to Ensure Uniform Enforcement of the "Graves Act," ("Directive") published on October 23, 2008 and corrected on November 25, 2008, if the defendant does not accept an initial plea offer containing the exception, the prosecutor "shall not" agree to the exception, even if the defendant subsequently pleads guilty, unless the prosecutor determines the mitigating factors substantially outweigh the aggravating factors.
"In Alvarez, supra, we held that [to succeed on such a motion] a defendant must make a showing that 'the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the "interests of justice" warrant reference to the Assignment Judge' for sentencing under the 'escape valve.'" State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div. 1996) (citing Alvarez, supra, 246 N.J. Super. at 147). In the vicinage involved in this case, the Assignment Judge has delegated responsibility for handling appeals involving the prosecutor's denial of Graves Act waiver applications to the Criminal Division presiding judge.
In practice, this application means that "jail credits will ‘reduce a[ ] [parole] ineligibility term as well as the sentence imposed.’ " Ibid. (alterations in original) (quoting State v. Mastapeter, 290 N.J.Super. 56, 64, 674 A .2d 1016 (App. Div.), certif. denied , 146 N.J. 569, 683 A .2d 1164 (1996) ).This Court recognizes that jail credits "serve important policy goals."
Accordingly, jail credit reduces both the defendant's overall sentence and any term of parole ineligibility by one day. Ibid. (citing State v. Mastapeter, 290 N.J.Super. 56, 64, 674 A.2d 1016 (App.Div.), certif. denied,146 N.J. 569, 683 A.2d 1164 (1996)); see also State v. Rippy, 431 N.J.Super. 338, 348, 69 A.3d 153 (App.Div.2013) (“Jail credits are applied to the ‘front end’ of a sentence and reduce a parole ineligibility term that is part of a sentence.”) (citing Hernandez, supra, 208 N.J. at 37, 26 A.3d 376), certif.
Accordingly, jail credit reduces both the defendant's overall sentence and any term of parole ineligibility by one day. Ibid. (citing State v. Mastapeter, 290 N.J. Super. 56, 64 (App. Div.), certif. denied, 14 6 N.J. 569 (1996)); see also State v. Rippy, 431 N.J. Super. 338, 348 (App. Div. 2013) ("Jail credits are applied to the 'front end' of a sentence and reduce a parole ineligibility term that is part of a sentence.") (citing Hernandez, supra, 208 N.J. at 37), certif. denied, 217 N.J. 284 (2014) .