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State v. Salentre

Decided: June 27, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD SALENTRE, SR., DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

King, Shebell and Keefe. The opinion of the court was delivered by King, P.J.A.D.

King

[242 NJSuper Page 109] On leave granted, defendant-appellant Donald Salentre, Sr., appeals the Law Division Judge's sua sponte vacation of his guilty plea to third-degree conspiracy, entered pursuant to a negotiated plea agreement. The plea agreement contemplated a five-year maximum term with a two-year parole disqualifier. Defendant-appellant seeks reinstatement of his guilty plea and

performance of the plea agreement. The State takes no position on the appeal.

Defendant-appellant and three others were charged with conspiracy, theft, and fencing stolen goods on multiple occasions between April 28, 1982 and April 27, 1987. The indictment charged: Count 1, conspiracy, N.J.S.A. 2C:20-7a, N.J.S.A. 2C:20-7.1, N.J.S.A. 2C:5-2; Count 2, theft by receiving stolen property, N.J.S.A. 2C:20-7, N.J.S.A. 2C:2-6, and Count 3, fencing N.J.S.A. 2C:20-7.1, N.J.S.A. 2C:2-6. The indictment alleged an aggregate theft of movable property valued at over $75,000.

Pursuant to a plea agreement reached between defendant-appellant and the State and accepted by the judge on January 16, 1990, defendant-appellant pled guilty to Count 1, as downgraded. The State agreed that the conspiracy charge would be downgraded from a second- to a third-degree offense, that all other charges would be dropped, and that the recommended sentence be imposed. Another co-defendant also pled guilty at about the same time as defendant.

Ten days later, on January 26, a letter was sent by the Law Division judge to defense counsel and the prosecutor stating that defendant's plea had been accepted only because the judge had had the "impression" that the two other co-defendants would also enter guilty pleas. Because these co-defendants refused to tender guilty pleas, the trial judge sua sponte stated that he would vacate defendant-appellant's guilty plea. He entered an order rejecting the plea agreement on February 23, 1990. We then granted defendant's motion for leave to appeal. R. 2:2-4.

Our court rules regarding pleas are very specific but do allow the judge some discretion regarding whether to refuse or accept a guilty plea. R. 3:9-2. A plea agreement is basically an "all-or-nothing arrangement." State v. Barboza, 115 N.J. 415, 422, 558 A.2d 1303 (1989). The judge must find that defendant's plea is made voluntarily, that there exists a factual basis for the plea, that the defendant has an understanding of

the nature of the charge, and that he realizes the consequences of the plea. R. 3:9-2. At the time defendant-appellant here entered his guilty plea, all requirements under the court rules were met -- the plea had a factual basis and was given voluntarily; the defendant had an understanding of the nature of the charge and the consequences of the plea. The Law Division judge accepted the guilty plea in open court.

Our court rules are designed to protect a defendant's constitutional rights. The defendant-appellant's plea was accompanied by a voluntary waiver of several of his constitutional rights; reconsideration of that decision should not be taken lightly by either party or the court. Cf. State v. Hale, 127 N.J. Super. 407, 410-411, 317 A.2d 731 (App.Div.1974). The terms of a plea agreement must be carefully adhered to; the reasonable expectations of a defendant generated by the plea negotiations should be "meticulously" met. See State v. Lightner, 99 N.J. 313, 317, 491 A.2d 1273 (1985); State v. Jones, 66 N.J. 524, 526, 333 A.2d 529 (1975); State v. Brockington, 140 N.J. Super. 422, 427, 356 A.2d 430 (App.Div.), certif. den., 71 N.J. 345, 364 A.2d 1077, cert. den., 429 U.S. 940, 97 S. Ct. 357, 50 L. Ed. 2d 310 (1976).

The State concedes that while it had an "impression" that the co-defendants' guilty pleas also would be forthcoming, no promises to that effect had been made by anyone. Thus, the judge had not been misled by counsel in any way. We find that the record clearly reflects that all the plea agreement's articulated requirements were met and approved by the judge. The judges apparent mistaken impression that defendant-appellant's plea was conditioned on all of his co-defendants pleading guilty, appears to have been an unarticulated premise, not understood as a condition precedent to the performance of the plea agreement by either the State or the defendant.

The judge's position that the public interest has not been served because his own personal expectation, i.e., guilty pleas from the co-defendants, was ...


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