On appeal from and on certification to the Superior Court, Appellate Division.
Handler, Wilentz, Clifford, Pollock, O'Hern, Garibaldi, Stein
The opinion of the Court was delivered by
In this case, as in State v. Vasquez, 129 N.J. 189(1992), the central issue is whether the court on resentencing a
defendant for violation of probation resulting from a conviction for distributing drugs in a school zone is required to impose a mandatory period of parole ineligibility. Related to that issue is whether the prosecutor's exercise of discretion to waive the period of parole ineligibility, thereby binding the court's sentencing power, violates the separation of powers doctrine. For the reasons set forth in Vasquez, we hold that the statute does not compel the court to impose a mandatory period of parole ineligibility on resentencing because of a probation violation when the prosecutor has waived the parole disqualifier at the time of initial sentencing in conjunction with a plea agreement. We further hold that the sentencing scheme that authorizes the prosecutor to waive the mandatory period of parole ineligibility does not violate the separation of powers doctrine.
This case shares a similar factual pattern with its companion, State v. Vasquez, supra, 129 N.J. 189, 609 A.2d 29. Here, pursuant to a negotiated Disposition under N.J.S.A. 2C:35-12, defendant pleaded guilty to possession of cocaine with intent to distribute within 1,000 feet of a school contrary to N.J.S.A. 2C:35-7. The prosecutor agreed to recommend a probation sentence with 364 days to be served in jail as a condition of probation. In describing the plea to the court, the prosecutor explained that "the State is waiving the mandatory custodial term which would be a three-year term without parole to be spent in New Jersey State Prison for purposes of this initial proceeding only." However, the prosecutor continued that "should the defendant return on violation of probation, he would then be subject to a five-year prison term with three years to be spent without parole eligibility."
In response to questions from the court at the plea hearing, defendant acknowledged that if he violated his probation, he would be subject to the maximum five-year term with three
years of parole ineligibility. Defense counsel confirmed that defendant understood that to be his exposure if he violated probation.
In imposing sentence, the trial court indicated that it thought that the recommended sentence was lenient given defendant's record and its perception that defendant might commit other offenses. In its statement of reasons for sentence, the court found the following aggravating factors: the risk that defendant would commit another offense, the extent of defendant's prior criminal record and the seriousness of those offenses, the need for deterring defendant and others, the likelihood that defendant had been involved in organized criminal activities, and that a fine without imprisonment would be seen only as the cost of doing business. The court found no mitigating factors. Nonetheless, the court concluded that it had "no choice but to accept the recommendation of [the] prosecutor" because the prosecutor had the power to waive the five-year term with three years of parole ineligibility.
The court then sentenced defendant to probation for three years conditioned on service of 364 days in jail; it also imposed a $1,000 Drug Enforcement Demand Penalty, a $50 forensic lab fee, and a $30 Violent Crimes Compensation Board penalty. The court further advised defendant to get a job, to stop using drugs, and to comply with the requirements of the probation department, and warned defendant that if he violated the conditions of probation, the court would not "have much choice but to impose the sentence of five years with three years parole ineligibility."
Nine months after sentencing, the Camden County Probation Department filed a petition for violation of probation alleging failure to report for seven of fourteen scheduled probation appointments, failure to pay the fines, and failure to obtain a required drug evaluation. At the probation hearing, defendant, through counsel, admitted the violations ...