Carton, Crahay and Handler.
In a four-count indictment defendant was charged with (1) conspiracy to violate the narcotic laws -- N.J.S.A. 24:21-24; (2) distribution of cocaine -- N.J.S.A. 24:21-19(a)(1); (3) possession of cocaine -- N.J.S.A. 24:21-20, and (4) possession of cocaine with the intent to distribute it -- N.J.S.A. 24:21-19(a). Pursuant to a bargained plea defendant pled guilty to the offense of distributing cocaine. The remaining counts were dismissed and defendant was sentenced to an 18 to 20-year term at New Jersey State Prison.
Defendant, 43 years of age, suffered an extensive criminal record. The transaction here involved the sale of 70 plus grams of cocaine to a police undercover agent for $1,850.
The sentence imposed was illegal, the maximum statutory penalty for the offense being 12 years. At the sentencing hearing the prosecution stated it was urging that the maximum sentence be imposed. At the retraxit hearing the trial court had stated to defendant that the maximum sentence was 12 years.
Defendant thereafter moved to have the sentence reduced. The trial judge (one other than the original sentencing judge who had been transferred to another county) advised defense counsel that he would permit defendant to withdraw his plea of guilty and stand trial on the indictment. Defendant persisted in the claim that he was entitled to be sentenced to a prison term with a maximum of 12 years. It was stated that the original sentencing judge did not indicate whether defendant was being sentenced as an habitual offender. The trial judge stated that it was not bound by any plea bargaining agreement and that in such a posture defendant had the opportunity to withdraw the plea and stand trial.
The judge concluded that if the original sentencing judge intended to punish defendant in excess of the statutory maximum, as a multiple offender, he did not accord defendant the due process safeguards called for by State v. Booker , 88 N.J. Super. 510 (App. Div. 1965), i.e. , notice of, and opportunity to be heard on prior offenses before suffering enhanced penalty. The original sentence was set aside as illegal. Defendant chose not to withdraw his guilty plea and was later served with an accusation charging him under N.J.S.A. 24:21-29 with two prior convictions:
1. In 1962, in the United States District Court for the District of New Jersey, for violation of 26 U.S.C.A. § 4744(a), the unlawful possession of marijuana without payment of the required federal transfer tax for which he received a four year federal prison term;
2. In 1959, in the Essex County Court, for violation of N.J.S.A. 24:18-4, the unlawful possession of cocaine for which he was sentenced to a term of two to three years.
Defendant personally waived his right to a jury trial on the accusation and was found guilty of being an habitual offender thereby exposing him to a 24-year maximum prison term.
A sentence of 18 to 20 years in State Prison was ordered. On this appeal defendant does not challenge his conviction as a subsequent offender but asserts solely that the original plea bargain entered into by defendant and the prosecutor should ...