On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
King, Baime and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
[241 NJSuper Page 373] Defendant Arnulfo Ramirez was sentenced to a ten year prison term with a two year parole disqualifier and assessed other fines and penalties for first degree possession of cocaine with intent to distribute it after he pled guilty to that offense.
He now appeals only from the prison term imposed, contending that it was not in accord with the plea agreement he negotiated with the prosecutor pursuant to N.J.S.A. 2C:35-12.
On appeal defendant contends that the sentencing judge misinterpreted the plea agreement. He claims that the agreement with the prosecutor was for a flat five year term and that the judge was bound by the terms of the statute to impose that sentence. Consequently, defendant asks us to vacate the sentence entered below and exercise original jurisdiction for the purpose of sentencing defendant to five years imprisonment pursuant to the plea agreement. Our review of the record satisfies us that the sentence imposed in the Law Division must be vacated. We decline to exercise original jurisdiction, however, and instead remand the matter for further consideration in accordance with this opinion.
The problems presented by this appeal arose from the fact that defendant's arrest and commencement of plea negotiations came close on the heels of the passage of N.J.S.A. 2C:35-12. The statute became operative on July 9, 1987. Defendant was arrested on July 28, 1987 and his attorney began plea negotiations with the prosecutor's office in September, 1987 while defendant was confined to jail in default of bail.
The statute in pertinent part states:
Whenever an offense defined in this chapter specifies a mandatory sentence of imprisonment which includes a minimum term during which the defendant shall be ineligible for parole, or a mandatory extended term which includes a period of parole ineligibility, the court upon conviction shall impose the mandatory sentence unless the defendant has pleaded guilty pursuant to a negotiated agreement or, in cases resulting in trial, the defendant and the prosecution have entered into a post-conviction agreement, which provides for a lesser sentence or period of parole ineligibility. [ N.J.S.A. 2C:35-12].
The record clearly reflects that defendant was cooperating with the prosecutor's office by providing information relative to drug distribution within the county and sources of drug supply both before and after his indictment on three counts of drug
related activity in anticipation of a negotiated agreement as contemplated by the statute.*fn1
On April 11, 1988 the parties appeared before the Assignment Judge of the county to place a plea agreement on the record. The record reflects that the defendant agreed to plead guilty to count two of the indictment, charging defendant with possession with intent to distribute cocaine in a quantity exceeding five ounces and containing at least 3.5 grams of pure free base drug, a first degree offense. Additionally, he agreed to execute a consent judgment in a related civil case, allowing the State to take possession of and title to both his car and the approximately $30,000 in cash which was found in his home at the time of the execution of the search warrant. For its part, the State promised to move for the dismissal or the merger of the remaining counts of the indictment; to recommend a 12 year prison term with three years of parole ineligibility; to abandon its attempt to obtain title, through forfeiture, to defendant's home; and to consent to defendants release on bail pending sentencing.
Not placed on the record at that time, but nonetheless an essential part of the agreement, was the fact that the defendant's cooperation and the State's interest in agreeing to a lesser sentence was ongoing. Unfortunately, that information was not conveyed to the Assignment Judge because of the parties' misconception of the powers granted to the prosecutor by the passage of N.J.S.A. ...