On appeal from Superior Court of New Jersey, Law Division, Union County.
Gaulkin, Brody and Muir, Jr. The opinion of the court was delivered by Brody, J.A.D.
This appeal requires us to interpret N.J.S.A. 2C:35-12 (section 12), which permits the State and a defendant to enter into a plea agreement that, if accepted by the court, would result in a prison sentence for a term less than the term mandated by the Comprehensive Drug Reform Act of 1986 (the act), N.J.S.A. 2C:35-1 et seq. Pursuant to a plea agreement, defendant pled guilty to a first-degree drug offense that requires an unspecified term of imprisonment and a period of parole ineligibility within the usual range under the Code. The trial Judge held that section 12 prohibited him from imposing a prison term and period of parole ineligibility less than what the prosecutor recommended. We disagree.
Defendant was convicted of possessing 5 ounces or more of cocaine with the intent to distribute it, a violation of N.J.S.A. 2C:35-5a(1) and b(1). The offense is a crime of the first degree, carrying the following mandatory prison sentence:
The mandatory aspect of the sentence is satisfied by imposing any prison sentence authorized by the Code for a first-degree offense as long as it includes a period of parole ineligibility within the range appropriate to the prison term imposed.
N.J.S.A. 2C:43-6a(1) and N.J.S.A. 2C:43-7a(2) authorize, respectively, ordinary prison terms of 10 to 20 years and, for those who qualify, extended prison terms of 20 years to life imprisonment for first-degree crimes. In addition, N.J.S.A. 2C:44-1f(2) authorizes imposition of a prison term in the range of a second-degree crime for first-degree criminal offenders who qualify. N.J.S.A. 2C:43-6a(2) authorizes ordinary prison terms of 5 to 10 years for second-degree crimes. Thus, depending on a defendant's circumstances, the mandatory prison term for an N.J.S.A. 2C:35-5b(1) first-degree drug offense may be as
little as 5 years and as much as life imprisonment.*fn1 Whatever the sentence may be, the act requires that it include a period of one-third to one-half of the base term during which the defendant shall be ineligible for parole.
Defendant pled guilty to this first-degree drug crime in return for the prosecutor's promise to recommend a prison term of 10 years, one-third of the term to be served before parole eligibility. That is the lowest ordinary prison term and parole ineligibility period available when sentencing within the range of a first-degree crime. However, the recommendation also left the Judge free to impose an even lower prison term and parole ineligibility period within the range available for a second-degree crime and still satisfy the statutory mandate that a prison sentence and parole ineligibility period be imposed. N.J.S.A. 2C:43-6a(2); State v. Merritt, 230 N.J. Super. 211, 553 A.2d 70 (Law Div.1988). Indeed, defendant's attorney argued at the sentencing hearing that defendant qualified for a second-degree prison sentence because, in the words of the Code, it was clear that "the mitigating factors substantially outweigh[ed] the aggravating factors and . . . the interest of Justice demand[ed]" the lower sentence. N.J.S.A. 2C:44-1f(2).
The sentencing Judge imposed the prison term recommended by the prosecutor even though it appears that he was inclined to sentence defendant within the range available for a second-degree crime but erroneously believed that section 12 foreclosed that option:
I will abide by the plea agreement and find and do hold the mitigating outweighs the aggravating and that the interests of Justice require that he be sentenced as a second degree offender -- strike that for a second, please. No, strike that.
I sentence him to the lower range of the first degree offense. Counsel would have me sentence him as a second-degree ...