On appeal from the Superior Court, Law Division, Mercer County.
Furman, Trautwein and Brody. The majority opinion of the court was delivered by Furman, J.A.D. Brody, J.A.D., dissenting.
Defendant was convicted on multiple counts for possession of heroin with intent to distribute, possession of cocaine and conspiracy to commit narcotics offenses, following his retraxit pleas of guilty. He was sentenced to an aggregate custodial term of 12 years, fines totaling $15,000 and penalties totaling $100.
On appeal defendant argues that the total fine imposed on him was not in accordance with the plea agreement between the prosecutor and himself. At the taking of defendant's plea to two indictments, the assistant prosecutor stated that the maximum custodial term would be five years with no minimum parole ineligibility term and without reference to any fine and that "I've stated everything in the plea bargain." At the taking of defendant's plea to the third indictment, the court asked, after defendant stated that he understood that the maximum custodial term would be 12 years, "Was there a fine or just the
straight 12 years?" Defendant's attorney responded, "Straight 12 years." In sentencing, fines of $5,000 were assessed upon conviction on each of the three indictments.
In our view, as a matter of law the total fine of $15,000 was an integral and material part of defendant's sentence and was beyond his reasonable expectations at the time of the entry of his pleas. We, therefore, vacate the entire sentence imposed on defendant and remand for resentencing, in accordance with State v. Kovack, 91 N.J. 476 (1982).
We reject as clearly without merit defendant's additional argument that his aggregate 12 year custodial sentence was manifestly excessive and an abuse of judicial discretion. R. 2:11-3(e)(2); State v. Whitaker, 79 N.J. 503, 512-514 (1979).
One other matter should be dealt with. The sentence improperly directed that one-half of the total fine and penalty be paid before defendant's release. This mandate was an unwarranted infringement on the exclusive authority of the State Parole Board. N.J.S.A. 30:4-123.59(g); State v. Lavelle, 54 N.J. 315, 322 (1969).
We vacate the entire sentence imposed on defendant and remand for resentencing. The sentencing court may reimpose its sentence without the fines of $15,000. If it decides not to, defendant may withdraw his motion for resentencing and accept his original sentence; he may renegotiate a plea agreement; or he may withdraw his pleas of guilty subject to reinstatement of several dismissed counts and proceed to trial. We do not retain jurisdiction.
BRODY, J.A.D., dissenting.
In my view State v. Kovack, 91 N.J. 476 (1982), does not compel vacating this sentence unless, after an evidentiary hearing, the trial judge finds that defendant was unfairly prejudiced by the imposition of the fine. Unlike the record in Kovack, the ...