For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Sullivan, J.
[71 NJ Page 579] This appeal, on certification granted by this Court, (69 N.J. 381 (1975)), involves the alleged breach by the State of a provision in a plea agreement that in return for defendant's plea of non vult to a charge of murder, the State would make "no recommendation" as to sentence other than that such sentence run concurrently with
a term then being served by defendant.*fn1 The State also had agreed to dismiss four other charges against defendant in exchange for his plea.
At the time of sentencing, pleas for leniency were made on behalf of defendant. When the assistant prosecutor addressed the court on the matter of sentence, instead of saying that the State would make "no recommendation," he stated that in his opinion the crime committed was first degree murder and that a sentence of life imprisonment should be imposed. Counsel for defendant immediately objected and sought to withdraw the plea of non vult on the ground that the State, by its comments, had breached the plea agreement. However, the trial court denied the motion, indicated that the assistant prosecutor had acted within the terms of the agreement, and then proceeded to impose a sentence of imprisonment for life.
On appeal, the Appellate Division, in an unreported opinion, concluded that the recommendation made by the assistant prosecutor that the court impose a sentence of life imprisonment was a plain violation of the plea agreement. However, it rejected defendant's contention that this voided the agreement and entitled defendant to withdraw his plea of non vult. Instead, citing Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), it ordered that the sentence imposed on defendant be set aside and that defendant be resentenced on his plea by a judge other than the one who had originally imposed sentence.
Defendant's petition for certification is concerned with the consequences which should flow from the State's alleged breach of the plea agreement.
The State stoutly argues that it adhered fully to its part of the agreement and contends that when it agreed to
make "no recommendation" with regard to sentence, it meant that it would make no recommendation for less than a life sentence. It maintains further that this understanding was clearly set forth when the plea agreement was presented to the court for approval. This contention is based on the following colloquy at that time between the assistant prosecutor (Mr. Mautone), defense counsel (Mr. Lorber), and the court:
MR. MAUTONE: It is my representation to the Court that I made no sentence recommendation with respect to offering the defendant in this case less than a non vult plea.
It is my representation to the Court that in my opinion, this is a first degree murder case, and should be sentenced as such.
MR. LORBER: That's not my understanding. My understanding is that the Prosecutor will make no recommendation as to sentence whatsoever, and that according to the Statute, 2A:113-3, the sentence is to be totally within the discretion of ...