On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels, Kestin and Wefing. The opinion of the court was delivered by Michels, P.J.A.D.
The State appeals from a judgment of conviction and order of commitment of the Law Division that sentenced defendant Jasper Leslie to a probationary term of five years on the condition that he serve 364 days in the Bergen County Jail and perform 360 hours of community service. The sentence was imposed upon defendant following his guilty plea, pursuant to a plea agreement, to possession of five pounds or more of marijuana with the intent to distribute the same within 1,000 feet of school property, a crime of the third degree, in violation of N.J.S.A. 2C:35-7.
Defendant and his wife, Marva Leslie, were indicted by the Bergen County Grand Jury and charged with (1) possession of marijuana in a quantity of five pounds or more with the intent to distribute the same, a crime of the second degree, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10) (First Count); (2) possession of marijuana in a quantity of five pounds or more with the intent to distribute the same within 1,000 feet of school property, a crime of the third degree, in violation of N.J.S.A. 2C:35-7 (Second Count); and (3) possession of more than fifty grams of marijuana, a crime of the fourth degree, in violation of N.J.S.A. 2C:35-10a(3) (Count Three). Following plea negotiations, defendant pleaded guilty to possession of marijuana in a quantity of five pounds or more with intent to distribute within 1,000 feet of school property under the Second Count. The State, for its part of the plea agreement, recommended that defendant
be sentenced to five years with a one-and-one-half year period of parole ineligibility. In addition, the State recommended that the First and Third Counts of the indictment be dismissed against defendant and that the entire indictment be dismissed against his wife.
Notwithstanding the plea agreement, the trial court disregarded the negotiated sentence recommended by the prosecutor pursuant to the authority conferred upon him under N.J.S.A. 2C:35-12, and sentenced defendant to a five year probationary term conditioned upon his serving 364 days in the Bergen County Jail and performing 360 hours of community service under Count Two. The trial court also assessed a $1,000 Drug Enforcement Demand Reduction penalty, a $50 laboratory fee, a $30 Violent Crimes Compensation Board penalty, dismissed the remaining counts of the indictment against defendant and dismissed the entire indictment against his wife. In refusing to sentence defendant in accordance with the plea agreement, the trial court held that the prosecutor, who appeared at the sentencing, was obligated under N.J.S.A. 2C:35-12 and State v. Vasquez, 129 N.J. 189, 609 A.2d 29 (1992) and State v. Peters, 129 N.J. 210, 609 A.2d 40 (1992), to set forth her rationale for waiving the mandatory three year period of parole ineligibility, and since she failed to do so, the prosecutor abused her discretion, acted in an arbitrary, capricious and unreasonable manner and, thereby, waived any mandatory minimum period of parole ineligibility. We disagree. The probationary term imposed by the trial court in disregard both of the plea agreement and of the prosecutor's recommended sentence under N.J.S.A. 2C:35-12 was illegal. The sentence, therefore, must be vacated and the matter remanded to the trial court for resentencing consistent with the plea agreement recommended by the prosecutor.
It is perfectly clear that the probationary term imposed upon defendant in violation of the plea agreement and the sentencing provisions of the New Jersey Code of Criminal Justice (Code) was illegal. N.J.S.A. 2C:35-7, in pertinent part, provides:
Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S. 2C:35-12, be sentenced by the court to a term of imprisonment. Where the violation involves less than one ounce of marijuana, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or one year, whichever is greater, during which the defendant shall be ineligible for parole. In all other cases, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole.
N.J.S.A. 2C:35-12, which requires the sentencing court to impose the mandatory sentence on a defendant convicted of an offense proscribed by Chapter 35, provides:
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. The negotiated plea or post-conviction agreement may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility, a specified fine, or other Disposition. In that event, the court at sentencing shall not impose a lesser term of imprisonment, period of parole ineligibility or fine than that expressly provided for under the terms of the plea or post-conviction agreement. [Emphasis added.]
The Legislature enacted the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 et seq., explicitly recognizing that "the imposition of a uniform, consistent and predictable sentence for a given offense is an essential prerequisite to any rational deterrent scheme designed ultimately to reduce the incidence of crime." N.J.S.A. 2C:35-1.1a. In addition, the Legislature expressly intended to provide "[s]pecial protection to children from the perils of drug trafficking . . . [by providing] especially stern punishment for those drug offenders who operate on or near ...