On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
King, Simpson and Scalera. The majority opinion of the court was delivered by King, P.J.A.D. Simpson, J.A.D., dissenting.
On this appeal defendant contends that his guilty plea should have been set aside because (1) there was no factual basis for the plea and (2) he was not forewarned of his potential loss of public employment by the judge who accepted the plea agreement. We disagree and affirm.
In March 1984 defendant was indicted for possession of marijuana in violation of N.J.S.A. 24:21-20(a)(4) (count one), and possession of marijuana with intent to distribute in violation of N.J.S.A. 24:21-19(a)(1) (count two). The police had confiscated 34 marijuana plants from defendant's home in Hopewell Township. The presentence report states that a "sizeable amount of plants [were] confiscated from his yard." The vegetation weighed 2.27 kilograms. Defendant was a biologist who worked for the Department of Environmental Protection of the State of New Jersey. He was suspended from public employment in October 1985.
In April 1985 defendant pled guilty to count two, possession of marijuana with intent to distribute. Pursuant to the plea
agreement, the State: dismissed count one and a disorderly complaint against defendant, remained silent and made no recommendation at sentencing, and dismissed all charges against defendant's wife, a co-defendant, with whom he cohabited. In October defendant received a sentence of two years probation, with 180 days in the County Jail as a condition of that probation. The sentence was stayed pending this appeal. A motion to reconsider the sentence was denied in December 1985. There was no motion made to withdraw the plea, see R. 3:21-1.
At the time of the plea of guilty, defendant admitted that he knew a prison sentence up to five years could be imposed and that he understood the constituent elements of the plea agreement. He admitted to having "34 [marijuana] plants in his garden." He said that he "was growing the marijuana for his personal use." Although he had "no intention of selling it or giving any away" he said that "I'm sure that if some friends came to my house that I would have shared it with them, as far as smoking some." This colloquy ensued.
THE COURT: All right. So that I'm sure, the marijuana that you possessed, was your intent to provide that without cost to anyone that came to your house to share it with your, is that what you're telling me?
THE COURT: All right, Mr. Lester [prosecutor]?
MR. LESTER: Your Honor, it's my understanding that Mr. Heitzman indicated it was his intent to share the drug, if the moment arrived, with a friend at ...