On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Shebell, Baime and Keefe. The opinion of the court was delivered by Shebell, J.A.D., writing for the majority but dissenting in part. Keefe, J.A.D., concurring. Baime, J., joins in this concurring opinion.
In this appeal defendant Yucel Cengiz asserts that portions of N.J.S.A. 2C:35-12 and 14 are constitutionally infirm because under these provisions a judge is without power to grant relief from the mandatory sentencing requirement of N.J.S.A. 2C:35-7 without prosecutorial consent. The majority of this court has declined to consider this issue. We are in agreement, however, that the case should be remanded to the Law Division in order to determine if the defendant had an agreement with the prosecutor regarding relief from the mandatory sentencing provisions and whether the prosecutor breached that agreement if it did in fact exist.
Appellant was indicted and pleaded guilty to distribution of a controlled dangerous substance, cocaine (N.J.S.A. 2C:35-5a(1)), conspiracy to distribute cocaine (N.J.S.A. 2C:5-2 and 2C:35-5a(1)) and distribution of cocaine within 1,000 feet of a school (N.J.S.A. 2C:35-7).
The sentencing judge merged the count for conspiracy to distribute cocaine with the count for distribution. On the merged conviction defendant was sentenced to 5 years imprisonment. On the count charging distribution of cocaine within 1,000 feet of a school defendant was sentenced to a concurrent
5-year term of imprisonment with 3 years of parole ineligibility under the mandatory sentencing provisions of N.J.S.A. 2C:35-7. Also imposed were a $1,000 fine for distributing cocaine within 1,000 feet of a school, $2,000 in drug enforcement penalties, $100 in laboratory fees, and $60 Violent Crimes Compensation Board penalties.
Defendant makes the following legal arguments in his appellate brief:
POINT I: DEFENDANT-APPELLANT HAS BEEN DENIED DUE PROCESS OF LAW BY THE PROSECUTOR'S ARBITRARY DECISION NOT TO JOIN DEFENDANT-APPELLANT IN OBTAINING A PROBATIONARY, NON-INCARCERATING SENTENCE PURSUANT TO N.J.S.A. 2C:35-12 AND N.J.S.A. 2C:35-14 AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
POINT II: DEFENDANT-APPELLANT SHOULD BE GRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE, BECAUSE A MIS-CARRIAGE OF JUSTICE RESULTED FROM THE FAILURE OF DEFENDANT-APPELLANT'S TRIAL COUNSEL TO EFFECTIVELY REPRESENT THE DEFENDANT-APPELLANT, THEREBY VIOLATING DEFENDANT-APPELLANT'S FUNDAMENTAL STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
Defendant in pleading guilty to the offenses in question admitted that he sold two packages of cocaine to undercover investigators from the Somerset County Prosecutor's Office at his work location within 1,000 feet of a school. Defendant's guilty plea to the indictment was accepted after he acknowledged in open court that the prosecutor had made no promises in exchange for his guilty plea and that there was no plea agreement. Defendant's counsel did, however, inform the court that defendant planned to raise as an issue at sentencing that he cooperated with the State in certain undercover investigations. This cooperation defendant asserted was in response to the State's promise of leniency, and therefore, he expected the prosecutor's recommendation that defendant not be subject to the mandatory minimum sentence and period of parole ineligibility
otherwise required by N.J.S.A. 2C:35-7. See N.J.S.A. 2C:35-12 and 14.
At sentencing, defendant raised several objections to the failure of the prosecutor to take action on defendant's behalf to permit the court to be relieved of the mandatory minimum sentencing provisions of N.J.S.A. 2C:35-7. Defendant further protested that N.J.S.A. 2C:35-12 and 14 were constitutionally flawed. Defendant also requested a hearing on the issue of whether he cooperated sufficiently with the police authorities to warrant an order to compel the prosecution to consent to relief from the mandatory sentencing provisions. His request was summarily rejected by the sentencing judge as being beyond the judicial authority granted by the Drug Reform Act.
In his brief on appeal, defendant attacks the constitutional validity of sections 12 and 14 of N.J.S.A. 2C:35 as violating the due process protections of both the Federal and State Constitutions, as being void for vagueness, and as violating the separation of powers of the three branches of government, presumably under the New Jersey Constitution. See N.J. Const. (1947), Art. III, par. 1 (Branches of Government). Factually, defendant continues to focus upon his cooperation "with the relevant authorities to the highest extent possible" and argues that "the prosecutor arbitrarily decided he did not provide enough 'information' and therefore he would not join in his application for probationary treatment."
N.J.S.A. 2C:35-12 provides that whenever the Drug Reform Act specifies a mandatory sentence of imprisonment or a minimum parole ineligibility term, the court is obligated to impose the prescribed mandatory sentence unless the defendant has the benefit of a negotiated agreement with the prosecution either before defendant pleaded guilty, or if the case is tried, the defendant must have entered into a post-conviction agreement providing for a lesser sentence or lesser period of parole ineligibility. See State v. Todd, 238 N.J. Super. 445, 449-52, 570 A.2d 20 (App.Div.1990); State v. Brown, 227 N.J. Super. 429, 439-41,
547 A.2d 743 (Law Div.1988); State v. Morales, 224 N.J. Super. 72, 86, 539 A.2d 769 (Law Div.1987). Further, even where there is an agreement, the court is barred by the statute from imposing a lesser term of imprisonment, period of parole ineligibility or fine than that expressly agreed to by the prosecutor. N.J.S.A. 2C:35-12; Brown, 227 N.J. Super. at 439-41, 547 A.2d 743 (court questions the constitutionality of the statutory requirement that a court may not impose a lesser sentence than that provided for in a post-conviction agreement). A similar restraint upon the powers of the court is found in N.J.S.A. 2C:35-14b, which prohibits the court from placing a defendant on probation for treatment of drug dependency where there has been a violation of N.J.S.A. 2C:35-7, unless the prosecutor joins in defendant's application for probation and treatment.
Defendant's appellate brief was filed before the decision of another panel of this court in State v. Todd, 238 N.J. Super. 445, 570 A.2d 20 (App.Div.1990). In Todd the court considered the challenges to sections 12 and 14 with particular emphasis on the violations of separation of powers alleged. The Todd court outlined in detail similar constitutional attacks made in other jurisdictions against statutes that purported to "elevate prosecutorial discretion over judicial discretion in the fixing of criminal sentences." Id. at 452, 453-58, 570 A.2d 20. We do not believe it is necessary to replicate that thorough discussion here.
The Todd court concluded that it was able to uphold the constitutional validity of N.J.S.A. 2C:35-12 and 14 based on the assumption that the Legislature intended that the courts retain their role of reviewing prosecutorial decisions regarding a defendant's entry into diversionary-type programs. Todd, 238 N.J. Super. at 461-62, 570 A.2d 20, citing Right to Choose v. Byrne, 91 N.J. 287, 311, 450 A.2d 925 (1982); see also State v. Leonardis (Leonardis I), 71 N.J. 85, 363 A.2d 321 (1976), on reh'g, 73 N.J. 360, 375 A.2d 607 (1977). The court was concerned with whether N.J.S.A. 2C:35-12 and N.J.S.A. 2C:35-14 could "reasonably . . . be interpreted in a manner that preserves
the ultimate sentencing decision to the court rather than the prosecutor." 238 N.J. Super. at 461, 570 A.2d 20. Thus, it stated that it must be assumed "the Legislature fully intended to reserve to the judiciary the power to approve or reject any agreement between the defendant and the State." Id. at 462, 570 A.2d 20. It held that the court "may review for the patent and gross abuse of the exercise of the prosecutor's discretion in the first instance if convinced that the interests of justice will not be served by accepting it in that particular case." Ibid. The court concluded that "[b]y so interpreting [ N.J.S.A. 2C:35-12 and N.J.S.A. 2C:35-14] the defendant's separation of powers argument fails." Ibid.
Here, the sentencing judge rejected the defendant's request for a hearing on whether the determination of the prosecutor that there had been less than adequate cooperation was arbitrary. The court made its decision on the basis that the statute did not permit any such inquiry. This position was properly rejected in State v. Todd, 238 N.J. Super. at 462, 570 A.2d 20. As pointed out by the Supreme Court in State v. McCrary, 97 N.J. 132, 142, 478 A.2d 339 (1984), "[h]istorically, a prosecutor has been vested with broad discretionary powers to be exercised in the conscientious discharge of the manifold responsibilities of his office." Nonetheless, these powers are not unlimited. See also State v. Di Frisco, 118 N.J. 253, 265-67, 571 A.2d 914 (1990). We are in accord that defendant is entitled to a remand on the issue of whether the defendant had an agreement with the prosecutor and whether defendant fully performed his part of that agreement. See concurring opinion of Judge Keefe (post at 501, 575 A.2d at 514).
I part company with my colleagues' view that we need not consider the remaining issues raised on appeal. A hearing on remand such as we have granted in this case will serve only to
satisfy this defendant's due process rights regarding whether the prosecution failed to keep its end of a bargain under an alleged agreement calling for defendant to cooperate. However, the due process rights of a defendant without bargaining power who is unable to get the ear of the prosecutor in seeking to cooperate or to negotiate a plea, post-conviction agreement or consent to a joint application for rehabilitative treatment might well go unsatisfied without expansion of the Todd remedy. In addition, this defendant's right to relief under section 14 goes unrecognized. That right under section 14 is not dependent on a pre-plea agreement. Rather, the Legislature has required that a defendant's application for probation and rehabilitative treatment must be joined in by the prosecutor no matter when the application is made. Under section 12, a post-conviction agreement with the ...