STATE OF NEW JERSEY v. JHAVAL D. RANDOLPH (17-01-0034, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0692-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JHAVAL D. RANDOLPH, a/k/a
JAVAL RANDOLPH and
JHAVAL D. RANDOLPH JR,

Defendant-Appellant.
___________________________

Submitted February 2, 2022 – Decided July 29, 2022

Before Judges Gilson and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 17-01-0034.

Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).

William A. Daniel, Union County Prosecutor, attorney
for respondent (Joseph M. Nielsen, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 On January 17, 2017, a Union County grand jury returned a two-count

indictment charging defendant with third-degree possession of a prohibited

weapon, namely a sawed-off shotgun, N.J.S.A. 2C:39-3(b) (count one); and

third-degree unlawful possession of a loaded weapon, N.J.S.A. 2C:39-5(c)(2)

(count two). After defendant's motion to suppress the shotgun seized without a

warrant was denied, and the State's motion to admit defendant's confession to

police was granted, defendant entered an open-ended guilty plea to both counts

of the indictment. Once the trial court denied defendant's subsequent appeal of

the prosecutor's rejection of his application for a Graves Act waiver pursuant to

N.J.S.A. 2C:43-6.2, defendant was sentenced to concurrent five-year prison

terms, each with a three-and-one-half-year parole disqualifier, pursuant to the

Graves Act, N.J.S.A. 2C:43-6(c).1

1
"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." State v.
Rodriguez, 466 N.J. Super. 71, 87 n.1 (App. Div.), leave to appeal denied, 247
N.J. 234 (2021). "The term 'Graves Act' now refers to all firearms offenses that
carry a mandatory minimum sentence." Ibid.

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 A memorializing judgment of conviction was entered on August 28, 2019,

from which defendant now appeals, raising the following points for our

consideration:

POINT I

BECAUSE OFFICERS ARRESTED . . . DEFENDANT
AND SEARCHED HIS BAG WITHOUT PROBABLE
CAUSE OR ANY VALID EXCEPTION TO THE
WARRANT REQUIREMENT, THIS COURT
SHOULD REVERSE THE DENIAL OF THE
SUPPRESSION MOTION.

POINT II

THIS COURT SHOULD REVERSE THE
ARBITRARY AND DISPARATE DENIAL OF
DEFENDANT'S N.J.S.A. 2C:43-6.2 APPLICATION
FOR A WAIVER OF A 3.5-YEAR MINIMUM
PRISON SENTENCE.

Having reviewed the arguments advanced in light of the record and governing

legal principles, we affirm.

I.

We recite only those facts relevant to the issues raised on appeal. We

glean these facts from the evidentiary hearing conducted on February 2, 2018,

during which the State produced two witnesses, Detectives Louis Figueiredo and

Carmen Giannetta, both members of the Elizabeth Police Department (EPD)

Narcotics Unit. Defendant did not testify or call any witnesses.

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 Figueiredo testified that on September 8, 2016, he received a tip from a

confidential informant (CI) that a "short" "black male" by the name of "Jay" in

his "early 20s . . . was going to be in the area of the [Broad Street] train station,

and he was going to have [controlled dangerous substances] on him." Figueiredo

stated he had previously worked with the CI and recounted that the CI was

reliable because his previous information had provided the basis for ten o ther

drug-related arrests.

Figueiredo explained that based on the tip, in the early afternoon of

September 8, 2016, he "went to the area of the train station, and . . . set up . . .

surveillance" accompanied by other EPD and Union County Prosecutor's Office

detectives. According to Figueiredo, officers were "scatter[ed] throughout" "the

whole surrounding area of the train station," "to try to cover as much of the area

as possible," while he and another detective conducted surveillance from a car

that was "parked in the lot . . . next to the courtyard" of the train station.

During the surveillance, Figueiredo was in continuous communication

with the CI via "[t]ext messages." The CI informed Figueiredo that "Jay" was

"already at the train station," "on a bicycle," and "wearing red sneakers, blue

jeans, [a] red t-shirt, . . . and . . . a backpack." Figueiredo confirmed that he saw

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a man with "[a] black backpack" "fitting that physical description" "circling the

courtyard area . . . on [a] bike." The individual was later identified as defendant.

Figueiredo testified that defendant "rode his bike near the tunnel that leads

to Broad Street," at which point he dismounted his bike and "nervously looked

around" while frequently checking his cell phone. According to Figueiredo,

defendant then "walked over to some stairs that lead to the abandoned

tracks, . . . looked around some more, . . . took off his backpack, . . . placed it

on the steps, . . . turned around and . . . walked away," "towards the tunnel that

leads to the platforms." Figueiredo said once defendant "enter[ed] . . . the tunnel,

[they] los[t] sight of him."

Detective Giannetta, one of Figueiredo's back-up officers at the train

station, also observed defendant "place[] the backpack down on the . . . stairs."

According to Giannetta, approximately "five minutes" later, another detective

"pick[ed] up the backpack" and brought it to Giannetta. Giannetta opened the

backpack and saw a loaded "sawed-off shotgun" inside, with "[t]he handle . . .

taped up." The information was then relayed to Figueiredo.

Figueiredo testified that "[f]rom the time . . . defendant left the backpack

to the time that the officers retrieved the backpack," he did not "lose sight of the

backpack"; "it remain[ed] in the location that it was in"; and defendant did not

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"come back to the backpack." After the discovery of the sawed-off shotgun,

Figueiredo "informed . . . the assisting units," who "attempted to locate

[defendant]." Officers found defendant "on the steps to the nort hbound

platform" and placed him under arrest. Figueiredo stated that the backpack was

not visible from where defendant was arrested on the northbound platform.

Following defendant's arrest, he was taken to the police station where

Giannetta administered his Miranda2 rights. Defendant waived his rights and

voluntarily gave a statement, during which he admitted that he had brought a

shotgun in his backpack to the train station. Defendant also stated he went to

the train station to sell "some weed" to someone he had met on Facebook but he

had "no weed" and intended to "just . . . take the [person's] money."

In support of his motion to suppress the search and seizure of the backpack

and its contents, defendant argued he did not abandon his backpack, the

information from the CI was not sufficient to establish probable cause to search

the backpack, and no exigent circumstances existed at the time. In opposition

to the State's motion to admit his statement to police, defendant argued that the

waiver of his Miranda rights was not knowingly and intelligently given.

2
Miranda v. Arizona, 384 U.S. 436 (1966).
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 The judge denied defendant's suppression motion in an order entered on

February 13, 2018. In a written opinion, the judge determined Figueiredo was

credible, as his testimony was "corroborated by a credible witness, photographs

and . . . [d]efendant's videotaped statement." The judge also found Giannetta to

be "entirely credible," noting that "[h]e testified in a direct and forthright manner

without evidence of prevarication," and "[h]is testimony conformed to the

evidence and common sense." Thus, the judge made factual findings consistent

with the detectives' testimony.

The judge then determined that defendant had abandoned the backpack

and thus had no standing to challenge its search and seizure, explaining:

(1) Defendant walked away from the backpack and
proceeded to the railroad boarding platforms at the
station; (2) in doing so, he took no steps to conceal the
backpack or otherwise prevent its discovery by anyone;
(3) the backpack was out of his sight and control when
he went to the train platforms; (4) the area in question
was a busy train station during mid-day; and, (5) there
is nothing in the facts and circumstances to indicate that
[d]efendant was going to return to the backpack. Said
differently, [d]efendant relinquished both possession
and control over the backpack when he left it in an
unconcealed location in a busy public place.

The judge further noted that even if defendant had standing to challenge

the search, his actions "in leaving his backpack on the steps and walking to the

distant train platform invoked the community caretaker role of the police,"

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"excus[ing] the warrant requirement." Additionally, the judge found the State

"established, beyond a reasonable doubt, a knowing, intelligent, and voluntary

waiver by . . . defendant" and granted the State's motion to admit defendant's

statement at trial.

Following the adjudication of the motions, defendant pled guilty to both

counts in the indictment, indicating that prior to sentencing, he would appeal the

prosecutor's denial of his request for a Graves Act waiver to permit a reduced

sentence pursuant to N.J.S.A. 2C:43-6.2. On March 26, 2019, during oral

argument on defendant's waiver motion, defendant argued that under State v.

Alvarez, 246 N.J. Super. 137 (App. Div. 1991), the State's rejection constituted

a "patent and gross abuse of discretion," warranting judicial intervention in

securing the waiver. Additionally, defendant claimed the State's failure to

extend a Graves Act waiver plea offer contradicted the Attorney General

guidelines pertaining to first time Graves Act offenders. 3

3
The Attorney General has issued a directive that channels the exercise of
prosecutorial discretion when deciding whether a Graves Act mandatory
minimum sentence should be waived pursuant to N.J.S.A. 2C:43-6.2. See
Directive to Ensure Uniform Enforcement of "Graves Act" (Oct. 23, 2008, as
corrected Nov. 25, 2008) (Directive).

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 In support, defendant cited ten specific Union County cases where the

State had granted a Graves Act waiver to illustrate that the State treated other

similarly situated defendants differently. Defendant also asserted,

"[m]eaningful judicial review . . . require[d] disclosure of the State's cumulative

file of Graves waiver decisions."

The State countered that the Graves waiver was properly considered by

two different First Assistant Prosecutors and subsequently denied by both based

on the facts of the case and defendant's history. Additionally, the State

distinguished all ten Graves waiver cases defendant relied on in his attempt to

show that he was treated differently than similarly situated defendants. The

State conceded, however, that neither the denial nor the reasoning was ever

reduced to writing and provided to defendant. Consequently, the judge

adjourned the proceedings and ordered the State to provide a statement of

reasons denying defendant's Graves Act waiver request as required by State v.

Benjamin, 228 N.J. 358 (2017).

In accordance with the judge's order, the prosecuting attorney provided a

letter to defendant and the court dated March 27, 2019, explaining the reasons

for the denial. In the letter, the prosecutor outlined the charges and recounted

the circumstances of defendant's arrest. The prosecutor also explained that she

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took into consideration "defendant's juvenile record," "the nature and

circumstances of th[e] case," the weight of the evidence, and the applicable

"aggravating and mitigating factors" set forth in N.J.S.A. 2C:44-1(a) and (b).

The prosecutor concluded, "while defendant is a youthful offender with no adult

criminal history, he is no stranger to the criminal justice system," and his "prior

robbery adjudications, along with the nature and circumstances of this case, and

the type of loaded firearm possessed, together with the State's strong proofs, "

justified denying defendant a Graves Act waiver.

On April 4, 2019, the parties returned for oral argument, after which the

judge denied defendant's waiver motion. The judge found that of the ten cases

cited by defendant as comparable or more severe than his case, only nine were

relevant to the court's analysis and each case was distinguishable from

defendant's case. The judge also determined that "the State . . . did consider all

relevant aggravating and mitigating factors and . . . did not act contrary to law."

The judge concluded that defendant had failed to show arbitrary or disparate

action by the State in denying defendant's request. Further, the judge found that

defendant was not entitled to discovery of the State's cumulative file on Graves

Act waiver decisions because as the Benjamin Court concluded, "there [were]

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sufficient procedural safeguards in place for meaningful judicial review of a

prosecutor's waiver decision." 228 N.J. at 375. This appeal followed.

II.

In Point I, defendant advances two arguments in support of his claim that

the judge erred in denying his motion to suppress the backpack and shotgun.

First, defendant claims that the judge erred in finding the officers had probable

cause to arrest him based on the CI's uncorroborated tip. Second, defendant

claims that the judge erred in finding defendant had abandoned his backpack

and therefore lacked standing to challenge the search.

In evaluating a trial judge's ruling on a suppression motion, our review of

the judge's factual findings is "exceedingly narrow." State v. Locurto, 157 N.J.

463, 470 (1999). We must defer to those factual findings "so long as those

findings are supported by sufficient evidence in the record." State v. Hubbard,

222 N.J. 249, 262 (2015); see also State v. Nelson, 237 N.J. 540, 551 (2019)

(same). In particular, we defer to the trial judge's assessments of credibility,

given the judge's ability to make "observations of the character and demeanor

of witnesses and common human experience that are not transmitted by the

record." Locurto, 157 N.J. at 474. Based on that standard, the trial judge's

findings should be overturned "only if they are so clearly mistaken 'that the

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11
interests of justice demand intervention and correction.'" State v. Elders, 192

N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). By

contrast, the trial judge's interpretation of the law and the legal "consequences

that flow from established facts" are reviewed de novo. State v. Gamble, 218

N.J. 412, 425 (2014).

Here, we are satisfied the judge's factual findings are amply supported by

the record. As to the judge's legal conclusion, defendant claims the judge erred

when he found defendant had abandoned his backpack and thus lacked standing

to challenge the search. As a result, he contends the sawed-off shotgun

confiscated from this unconstitutional seizure must be suppressed. We disagree.

The United States and New Jersey Constitutions guarantee that

individuals shall be free from "unreasonable searches and seizures." U.S. Const.

amend. IV; N.J. Const. art. I, ¶ 7. "Generally, a warrantless search or seizure is

invalid absent a showing that it 'falls within one of the few well-delineated

exceptions to the warrant requirement.'" State v. Alessi, 240 N.J. 501, 517

(2020) (quoting State v. Mann, 203 N.J. 328, 337-38 (2010)).

Where property has been abandoned "a defendant will not have standing

to object to the search or seizure of" that property. State v. Johnson, 193 N.J.

528, 548-49 (2008). Stated differently, "the abandonment of property strips a

A-0692-19
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person of standing to challenge a search." Id. at 547. "To that extent, abandoned

property falls within an exception to the warrant requirement," and "the State

bears the burden of proving by a preponderance of the evidence" that the

property is abandoned. State v. Brown, 216 N.J. 508, 528-29 (2014).

"For the purposes of standing, property is abandoned when a person, who

has control or dominion over property, knowingly and voluntarily relinquishes

any possessory or ownership interest in the property and when there are no other

apparent or known owners of the property." Johnson, 193 N.J. at 549. "To act

voluntarily is to act with a free and unconstrained will, a will that is not

overborne by physical or psychological duress or coercion." State v. Carvajal,

202 N.J. 214, 226 (2010). "To act knowingly is to act with a conscious

understanding of what one is doing." Ibid.

Where items are discarded in response to an illegal seizure, that evidence

is not abandoned, and remains subject to suppression. State v. Tucker, 136 N.J.

158, 172 (1994). As the Tucker Court explained:

"Property is not considered abandoned when a person
throws away incriminating articles due to the unlawful
actions of police officers." Thus, where a person has
disposed of property in response to a police effort to
make an illegal arrest or illegal search, courts have not
hesitated to hold that property inadmissible.

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 [Ibid. (quoting 1 Wayne R.
LaFave, Search and Seizure § 2.6(b) at 471-72 (2d ed.
1987)).]

Guided by these principles, we agree with the judge's legal conclusion that

defendant abandoned the backpack. The evidence supports the judge's

determination defendant knowingly and voluntarily relinquished any possessory

or ownership interest he may have had in the backpack when he left it on the

steps near the "old tracks" of a public train station in the middle of the afternoon

and walked away, heading "towards the tunnel that [led] to the platforms."

Further, because there were no other apparent or known owners of the property,

and the police did not confront or accost defendant before he discarded the

backpack, defendant's action constituted abandonment. Tucker, 136 N.J. at 172.

As a result, defendant had "no right to challenge the search and seizure of that

property." Johnson, 193 N.J. at 548.

The judge rejected the State's claim that "because the officers had

probable cause to arrest [defendant] based on the [CI's] information," the search

of defendant's backpack was a search incident to arrest. As such, we need not

address defendant's contention regarding the sufficiency of the CI's tip. Also,

in light of our decision that defendant abandoned his backpack and had no

standing to object to its search or seizure, we need not address defendant's

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argument that the judge erred in applying "the community caretaking exception

to the warrant requirement" and we offer no opinion on that determination.

III.

In Point II, defendant contends the judge erred in denying his appeal to

overturn the prosecutor's "arbitrary and capricious" rejection of a Graves Act

waiver under N.J.S.A. 2C:43-6.2. In support, defendant asserts he was "only

accused of non-violent, third-degree possession; he had no prior adult felony

convictions; and he was out on bail for years pending sentencing without ever

being accused of any new crimes." Defendant further argues that the

prosecutor's rejection deprived him of "due process and equal protection of the

laws" as compared to the treatment afforded "similarly-situated" as well as more

egregious offenders. In that regard, defendant relies on the summaries of ten

firearm prosecutions provided to the trial court to show disparity and

discrimination in the extension of Graves Act waivers.4

4
Defendant originally submitted ten cases for the trial court to consider in
assessing whether there was a disparity in Graves Act waivers granted by the
State in other cases. On appeal, defendant submits an additional ninety-two
cases to this court to highlight his position. However, "a reviewing court will
not consider evidentiary material which is not in the trial court's record." Mount
Olive Complex v. Twp. of Mount Olive, 340 N.J. Super. 511, 527 (App. Div.
2001) (citing R. 2:5-4(a)); certif. granted, cause remanded, 174 N.J. 359 (2002);
see also State v. Robinson, 200 N.J. 1, 19 (2009) ("The jurisdiction of appellate

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 The Graves Act requires a mandatory term of imprisonment for

individuals convicted of various firearm-related crimes. N.J.S.A. 2C:43-6(c).

The Act specifically requires that "[t]he term of imprisonment shall include the

imposition of a minimum term" which "shall be fixed at one-half of the sentence

imposed by the court or [forty-two] months, whichever is greater." Ibid.

The Graves Act, however, contains an "'escape valve' to the mandatory

sentence requirements." Alvarez, 246 N.J. Super. at 139. This "escape valve"

provides:

On a motion by the prosecutor made to the
[A]ssignment [J]udge that the imposition of a
mandatory minimum term of imprisonment under [the
Graves Act] for a defendant who has not previously
been convicted of an offense under [the Graves
Act], . . . does not serve the interests of justice, the
[A]ssignment [J]udge shall 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. The sentencing
court may also refer a case of a defendant who has not
previously been convicted of an offense under [the
Graves Act] to the [A]ssignment [J]udge, 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.]

courts . . . is bound[] by the proofs and objections critically explored on the
record before the trial court by the parties themselves.").
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 "[W]ritten guidelines exist to channel prosecutorial discretion" in

evaluating waiver applications. Benjamin, 228 N.J. at 372. These guidelines,

outlined in the Directive, instruct prosecutors "contemplating a waiver to

'consider all relevant circumstances concerning the offense conduct and the

offender,' such as applicable aggravating and mitigating circumstances under

N.J.S.A. 2C:44-1." Benjamin, 228 N.J. at 369 (quoting Directive at 12). Should

the prosecutor decide not to approve the waiver, a defendant "may move before

the [A]ssignment [J]udge or designated judge . . . for a . . . hearing as to whether

the prosecutor's rejection or refusal is grossly arbitrary or capricious or a patent

abuse of discretion." Alvarez, 246 N.J. Super. at 147 (quoting State v. Cengiz,

241 N.J. Super. 482, 497-98 (App. Div. 1990)). A defendant "must make a

showing of arbitrariness constituting an unconstitutional discrimination or

denial of equal protection constituting a 'manifest injustice,'" and the

Assignment Judge or designee must determine if a hearing is warranted "in the

interests of justice." Id. at 148-49.

The interest of justice standard requires the court to consider whether "the

sentence reflect[s] the Legislature's intention" because "the severity of the crime

[is] the most single important factor in the sentencing process." State v.

Megargel, 143 N.J. 484, 500 (1996). The court "must consider the nature of and

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the relevant circumstances pertaining to the offense," including "facts personal

to the defendant" such as the "defendant's role in the incident to determine the

need to deter him from further crimes and the corresponding need to protect the

public from him." Id. at 500-01. The judge must identify "any reasons,

compelling or otherwise," as to why the interest of justice standard applies. Id.

at 503. In that regard, "courts must 'view the prosecutor's decision through the

filter of the highly deferential standard of review.'" State v. Waters, 439 N.J.

Super. 215, 237-38 (App. Div. 2015) (quoting State v. Wallace, 146 N.J. 576,

589 (1996)).

Here, in denying defendant's application to overturn the prosecutor's

rejection of a Graves Act waiver, the judge designated to hear waiver

applications concluded defendant failed to carry his heavy burden to establish

"a patent and gross abuse of discretion" on the part of the prosecutor. Critically,

the judge pointed out that the prosecutor adhered to "the Attorney General

Guidelines for waiving the Graves Act"; "did not act contrary to law"; and

"consider[ed] all relevant aggravating and mitigating factors" set forth in

N.J.S.A. 2C:44-1. Specifically, the judge noted that the prosecutor found

aggravating factors three and nine and no mitigating factors. See N.J.S.A.

2C:44-1(a)(3) ("[t]he risk that . . . defendant will commit another offense");

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N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring . . . defendant and others from

violating the law").

The judge explained that while defendant "ha[d] not met [his] burden" for

a hearing, nonetheless, she had conducted a "fairly comprehensive hearing

because the [c]ourt . . . [had] reviewed a number of cases cited by . . .

defen[dant,]" and had considered the State's "explanations" in distinguishing

those cases from defendant's. After painstakingly discussing the cases cited by

defendant, the judge concluded, while "there were some similarities in some of

the cases . . . , defendant's case . . . is different," in that "he left a loaded . . .

sawed-off shotgun in a train station in an area clearly . . . accessible to the

public." The judge acknowledged that while "no one was hurt," "[t]he potential

harm, including serious injury or death to a member of the public, [was]

significant in this case." Therefore, according to the judge, "[t]his case . . . is

unlike any of the cases cited by . . . defendant . . . to support defendant's request

for a hearing."

The judge also acknowledged the State's strong proofs, as well as the fact

that defendant's request was "submitted to" and "denied" by two "different

[F]irst [A]ssistant [P]rosecutor[s]." Further, the judge "agree[d] with the State's

finding of [a]ggravating [f]actors [three] and [nine]" and found no "competent,

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credible evidence" to support the mitigating factors urged by defendant. The

judge stated although defendant "did not have an adult criminal record" and was

twenty-three-years-old at the time of the offense, he had "two prior adjudications

for second-degree robbery" in "2009 and 2010." Additionally, in 2010 and 2011,

defendant "was adjudicated delinquent for shoplifting" and "failure to make

lawful disposition," respectively. The judge noted that although defendant was

placed on probation, he violated probation.

The judge also considered "the nature" of the offense and its "relevant

circumstances," recognizing "defendant was in possession of a loaded sawed-

off shotgun, loaded being one issue and second being a . . . sawed-off shotgun

which no one can possess legally." Moreover, the judge reasoned, not only did

defendant possess a "sawed-off shotgun at a train station but . . . defendant

admitted that he was there to commit additional criminal conduct," namely a

drug sale. Accordingly, the judge denied defendant's waiver request, finding

that "[u]nder the circumstances of th[e] case the interests of justice d[id] not

demand that the State provide an offer under the . . . statute."

We agree with the judge's cogent and well-reasoned decision and reject

defendant's arguments that the denial was discriminatory, inconsistent with the

Attorney General's Directive, or arbitrary and capricious. "On the contrary, we

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are satisfied that the judge's robust review and analysis were sound, and fulfilled

the role contemplated in Benjamin, to 'ensure[] that prosecutorial discretion is

not unchecked.'" State v. Andrews, 464 N.J. Super. 111, 124 (App. Div. 2020)

(quoting Benjamin, 228 N.J. at 373).

Affirmed.

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