On appeal from Superior Court, Law Division, Middlesex County.
Furman and Stern. The opinion of the court was delivered by Stern, J.A.D.
Pursuant to a negotiated disposition, defendant pled guilty to counts 1, 2, 3 and 4 of indictment 347-3-84, counts 1, 10, 13, 15, 17, 19 and 21 of indictment 348-3-84, counts 1, 4 and 5 of indictment 351-3-84 and to Accusation 241-9-84. The remaining counts of indictment 348-3-84 and all of indictments 344-3-84, 345-3-84, and 1002-8-84 were dismissed as to defendant.
The negotiated disposition was explained as follows in a colloquy between the prosecutor and the court at the time of plea:
MR. WEST: . . . There are seven indictments -- correction, six indictments plus the accusation against Mr. Alevras. And as I understand the plea bargain, Mr. Alevras is prepared at this time to enter pleas of guilty to Counts 1, 10, 13, 15, 17, 19, and 21 of Indictment 348-3-84; also Counts 1, 2, 3, and 4, which is the entire indictment of 347-3-84; Counts 1, 4, and 5 of Indictment 351-3-84; and Accusation 241-9-84.
In exchange for those pleas of guilty, the State will move to dismiss the remaining counts of Indictment 348-3-84, Indictment 1002-84 in its entirety, Indictment 344-3-84 as it relates to this defendant, Indictment 345-3-84, in its entirety including the indictment against the codefendant.
THE COURT: Which codefendant?
MR. WEST: Mr. Alevras' wife. And the State will recommend the following: A total sentence of max 12 years with a minimum parole period of ineligibility of four years. That sentence is to run concurrent with the present sentence he is serving which, for the Court's knowledge, is a five year State prison sentence with a two-and-a-half year parole ineligibility sentence.
THE COURT: That's a Middlesex County sentence?
MR. WEST: That's correct. He began serving that approximately a month ago, if I'm not mistaken.
MR. WEST: In addition, the State will recommend that the sentence imposed is to run concurrent with any other sentence he receives. For instance, he has some outstanding charges from New York. He has a possible parole violation out of the State of New York. We're recommending that the sentence in New Jersey run concurrently but not limited to the sentences he may get outside this jurisdiction. All right?
And, finally, two other problems.
THE COURT: Wait a minute. Say that again. You want whatever the Court here imposes on these charges to run concurrent with a parole violation in New York, which has not been yet imposed?
MR. WEST: Our sentence will not be consecutive. Obviously, it can't be if it hasn't been done yet, but we're making a promise --
MR. WEST: That we're not going to ask for an extended term, which he might be eligible for.
Finally, we reserve the right to be heard at sentence.
There's one other promise that was made or an inducement to Mr. Alevras, and that is we're saying to him that he preserves the right to appeal a denial of a motion to dismiss the indictments and complaint which was heard before Judge Kuhlthau on December 3, 1984. He preserves the right to appeal that.
At the plea hearing the defendant acknowledged his maximum exposure to all offenses and to the offenses for which he pled guilty, indicated his knowledge that pursuant the agreement he was exposed to 12 years with a minimum parole ineligibility period of four years and indicated a factual basis for each offense to which a guilty plea was entered. Indictment 347-3-84 alleged violations of N.J.S.A. 2C:21-5 (issuing a bad check) in counts one and three and violations of N.J.S.A. 2C:20-4 (theft by deception) in counts two and four. At the plea hearing the defendant gave the following factual basis with respect to those counts:
Okay, Indictment 347 has four counts. The first count indicates that between -- strike that -- on or about October 8, 1983, in the Township of Millburn, County of Essex, you issued a check dated October 5, 1983, drawn on an account of a John Libretto, at the Bank of the South located in Forest Park, Georgia, in the amount of $15,000, and when you gave the ...