On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Handler, J.
[80 NJ Page 355] The sole question presented by this appeal is whether a defendant charged with a series of heinous crimes, facing a maximum sentence greatly exceeding life imprisonment, should be entitled to vacate his plea bargain because
he had not been informed that some of the charges might be merged for sentencing purposes. We considered this issue, in a somewhat different context, in State v. Nichols, 71 N.J. 358 (1976). In an unreported opinion the Appellate Division, relying on Nichols, held that the defendant should be allowed to withdraw his guilty plea in this case. We disagree. Accordingly, we reverse the judgment of the Appellate Division and reinstate that of the trial judge, denying the defendant's motion to vacate his plea.
A nine count indictment was presented against defendant Raymond George Taylor by a Camden County Grand Jury on August 17, 1976. The complaint arose out of an incident on August 6, 1976 in which defendant allegedly shot and killed James Liberati and Carlos Brandon in a dispute over the price of drugs he was seeking to acquire from them. The indictment contained two separate counts, charging defendant with the unlawful, premeditated and felonious murder of Liberati and Brandon, a violation of N.J.S.A. 2A:113-1 or N.J.S.A. 2A:113-2;*fn1 two counts charging Taylor with the murder of each victim while armed, in violation of N.J.S.A. 2A:151-5; two counts charging defendant with the robbery of Liberati and Brandon, contrary to N.J.S.A. 2A:141-1; two counts charging Taylor with committing those robberies while armed in violation of N.J.S.A. 2A:151-5 and one count charging defendant with carrying a handgun without a permit, in contravention of N.J.S.A. 2A:151-41(a). In addition, a separate single count accusation
was issued against Taylor on October 14, 1976 charging him with the unlawful possession of a .45 caliber automatic pistol without a permit on June 14, 1976 in an unrelated incident. This alleged conduct was also contrary to N.J.S.A. 2A:151-41(a).
At a retraxit hearing held on October 14, 1976 defendant informed the trial court that he wished to enter into a plea bargain with the State, under which he would retract his plea of not guilty and enter a plea of non vult to the two murder counts and guilty to the weapon accusation; in return, there would be a dismissal of all other charges and a recommendation by the State of a total sentence of not more than fifty nor less than forty years for the two murders, and a concurrent five to seven year sentence for the weapon charge.
The record reveals that the trial judge made studious efforts to comply with the safeguards of R. 3:9-2 before accepting defendant's pleas. The court considered signed statements by the defendant explicitly reciting the counts of the indictment and accusation, their corresponding potential penalties and the terms of the plea agreement, as well as defendant's intent to abide thereby. Taylor acknowledged both orally and in writing that he had agreed to the plea bargain on his own free will and that he understood the ramifications of his decision. The trial judge ascertained that defendant had discussed his alternatives thoroughly for several hours with his counsel and his father. The court satisfied itself of the factual basis underlying the pleas. Taylor's own confession acknowledging that he "shot two guys over a drug transaction when one of them came at me" was considered together with three statements by witnesses for the State corroborating defendant's role in the drug-related homicides. These statements included an eyewitness account indicating that Taylor had shot the victims in cold blood without any immediate physical provocation and suggested that the murders may have been premeditated.
Since defendant's version, if credible, may have afforded an excuse of self-defense, the trial judge made certain that
defendant had considered the option of raising this contention at trial before agreeing to the plea bargain. The record reveals that defendant had, in advance of the hearing, after discovery of the State's witnesses' statements, discussed the possibility of self-defense with his counsel, and, apparently, discounted it. During the hearing the trial judge told the defendant, "if there's any possibility, Mr. Taylor, that you think you're innocent or you've got a legal defense to this, I want to make sure you have your day in court." Later, just prior to accepting defendant's plea, the trial judge again warned him to consider the matter carefully because it would be difficult to retract the pleas of non vult and guilty once they were formally entered. The defendant stated ...