On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Michels, Bilder and Baime. The opinion of the court was delivered by Baime, J.A.D.
[266 NJSuper Page 563] The State appeals from the Law Division's order granting defendant's petition for post-conviction relief and vacating the remainder of his parole ineligibility term imposed under N.J.S.A. 2C:35-7. The Law Division held that the prosecutor abused his discretion by failing to engage in post-conviction negotiations with defendant under N.J.S.A. 2C:35-12 and by refusing to waive the mandatory period of parole ineligibility. The Law Division also held that the guidelines adopted by the Attorney General and the county prosecutors in response to the Supreme Court's opinion in State v. Vasquez, 129 N.J. 189, 609 A.2d 29 (1992) and our decision in State v. Gonzalez, 254 N.J. Super. 300, 603 A.2d 516 (App.Div. 1992) are arbitrary and capricious because they permit a waiver of a mandatory sentence following a conviction only if the defendant cooperates with law enforcement officials in ferreting out criminal conduct. We are thoroughly convinced that the prosecutors' guidelines, both facially and as applied here, comport with constitutional requirements and that defendant failed to satisfy the
heavy burden of proving the State's failure to offer leniency constituted an arbitrary and capricious exercise of discretion.*fn1
Tried by a jury, defendant was convicted of possession of cocaine with intent to distribute (N.J.S.A. 2C:35-5a(1) and 5b(3)), possession of the same drug with intent to distribute near a school zone (N.J.S.A. 2C:35-7), distribution of the same drug (N.J.S.A. 2C:35-5a(1) and 5b(3)), distribution of the same drug near a school zone (N.J.S.A. 2C:35-7), and possession of the same drug (N.J.S.A. 2C:35-10a(1)). After merging the conviction for simple possession, the trial Judge imposed a concurrent four year sentence on each count. On the convictions for possession of cocaine with intent to distribute and distribution of the same drug near a school zone, separate concurrent three year parole disqualifiers were imposed pursuant to N.J.S.A. 2C:35-7. In an unreported opinion, we affirmed defendant's convictions, but merged the separate counts. The Supreme Court subsequently denied certification.
Defendant then filed a petition for post-conviction relief in which he contended, among other things, that the prosecutor improperly failed to engage in post-conviction negotiations and did not state his reasons for refusing to waive the mandatory period of parole ineligibility required by N.J.S.A. 2C:35-7.*fn2 It was also argued
that the prosecutors' guidelines were not existent at the time of the original sentencing hearing and that their later promulgation violated the ex post facto prohibition. In response, the prosecutor argued that it was not incumbent upon him to engage in postverdict negotiations or to waive the mandatory sentence. Pointing to defendant's undisputed eleven year history of drug abuse and his failure at any time to cooperate with law enforcement authorities, the prosecutor asserted that his refusal to waive the mandatory term required by N.J.S.A. 2C:35-7 did not constitute an arbitrary and capricious exercise of discretion.
The Law Division granted defendant's petition on the ground that the prosecutor's refusal to grant lenity under N.J.S.A. 2C:35-12 was unfair and improper. In a letter opinion issued in response to the State's motion for reconsideration, the Law Division reaffirmed its prior decision, finding that the prosecutor's refusal to consider anything other than an offer to cooperate once the defendant was convicted by a jury constituted arbitrary and capricious conduct. The Law Division observed that prosecutorial guidelines permitted the State to consider a broad array of mitigating factors in deciding whether to enter a plea agreement, but focused too narrowly on the defendant's willingness to cooperate following a conviction. The court suggested that the defendant's amenability to treatment and rehabilitation should generally be considered by a prosecutor in deciding whether to grant lenity. Citing defendant's drug addiction, lack of a criminal record, and family background, the court vacated the remainder of his parole ineligibility term.
It is against this backdrop that we consider the issues presented.
We commence our analysis with a brief description of the Comprehensive Drug Reform Act of 1986 (N.J.S.A. 2C:35-1 through -23) and recent judicial decisions construing its provisions. The ...