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State v. Heitzman

Decided: July 9, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM C. HEITZMAN, DEFENDANT-APPELLANT



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 209 N.J. Super. 617 (1986).

For reversal -- Chief Justice Wilentz. For affirmance -- Justice Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Justices Clifford, Handler, Pollock and Garibaldi join in this opinion. Justices O'Hern and Stein have filed a separate concurring opinion. Chief Justice Wilentz has filed a separate dissenting opinion. O'Hern and Stein JJ., concurring. Wilentz, C.J., dissenting.

Per Curiam

In 1985 defendant, then a biologist with the Department of Environmental Protection, pleaded guilty to possession of marijuana with intent to distribute. He was sentenced to two-years probation, with 180 days County Jail time as a condition thereof. The Appellate Division, one judge dissenting, affirmed. It rejected defendant's contentions that (1) there was no factual basis for the plea, and (2) the court should have forewarned defendant of his potential loss of public employment. State v. Heitzman, 209 N.J. Super. 617 (1986).

A statute, N.J.S.A. 2C:51-2, mandates the forfeiture of public office or position of any person convicted of a crime of the third degree or above. Defendant argues that forfeiture of public employment is one of the "consequences of the plea" that the Court had a duty to determine was within defendant's understanding when the plea was accepted. See R. 3:9-2. The dissenter below accepted that contention.

We affirm substantially on the basis of the majority opinion in the Appellate Division, which held that "defendant need be informed only of the penal consequences of his plea and not the collateral consequences, such as loss of public or private employment, effect on immigration status, voting rights, possible auto license suspension, possible dishonorable discharge from the military, or anything else." 209 N.J. Super. at 622. Of course, a trial court would be well advised to inform a defendant of any collateral consequences of which the court may be aware, but the failure to do so cannot be viewed as error requiring further proceedings that could lead to a vacating of the plea.

Affirmed.

Justices CLIFFORD, HANDLER, POLLOCK and GARIBALDI join in this opinion.

Justices O'HERN and STEIN have filed a separate concurring opinion.

Chief Justice WILENTZ has filed a separate dissenting opinion.

O'HERN and STEIN, JJ., concurring.

We concur in the judgment of the Court. Although the majority does not reach the issue, we would expressly recognize this defendant's right to move to withdraw his guilty plea "to correct a manifest injustice," pursuant to Rule 3:21-1. Defendant asserts that he was advised by counsel that there would be no adverse impact on his employment as a consequence of his guilty plea. Moreover, the employment-forfeiture statute itself is ambiguous with respect to whether it applies to a conviction under the Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 to -53 (the C.D.S. Act). N.J.S.A. 2C:51-2a(1) requires forfeiture of public office or employment by an individual "convicted under the laws of this State * * * of a crime of the third degree or above * * *." However, N.J.S.A. 24:21-19b(3) and 24:21-20a(4) classify the offenses for which defendant was indicted as high misdemeanors. While N.J.S.A. 2C:43-1b equates third-degree crimes and high misdemeanors for purposes of sentencing, that provision expressly excludes Title 24 offenses from its reach. Although it is unlikely that the Legislature intentionally excluded violators of the C.D.S. Act from the employment-forfeiture provision of the Code, the issue is not before us and has not been previously adjudicated.

We concur with the Court's conclusion that the trial judge is required only to advise defendants of the penal consequences of a guilty plea. Nevertheless, the circumstances of this case lead us to conclude that defendant should not be precluded from obtaining relief ...


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