On appeal from the Superior Court of New Jersey, Law Division, Salem County.
Pressler, Brochin and Kleiner. The opinion of the Court was delivered by Kleiner, J.s.c. (temporarily assigned).
[269 NJSuper Page 204] Defendant Joseph M. Bowen and his paramour, R.P.,*fn1 were charged in a two-count Salem County indictment with criminal conduct involving T.P., the six year old daughter of R.P. Count I of the indictment charged Bowen with first degree aggravated sexual assault pursuant to N.J.S.A. 2C:14-2a. Count II charged Bowen and R.P. with third degree endangering the welfare of a child, T.P., pursuant to N.J.S.A. 2C:24-4a.
Bowen entered a plea of not guilty on July 16, 1990 and this matter was ultimately scheduled for trial on February 5, 1991. On that date a jury was selected and the court proceeded to conduct a hearing pertaining to the admissibility of certain hearsay statements allegedly made by the child victim, T.P., during the course of the pre-indictment investigation, Evid.R. 63(33) [now N.J.R.E. 803(c)(27)] and to the admissibility of a statement given by defendant in a post-arrest custodial interview, Evid.R. 8 [now N.J.R.E. 104].
On the morning of February 6, 1991, the trial of co-defendant R.P. was severed as the State consented to the admission of R.P. into the Salem County Pre-Trial Intervention Program.
After Bowen's request for a trial postponement was denied, his counsel sought to present a plea of guilty to Count I of the indictment pursuant to a new plea offer tendered to Bowen by the State. The new plea offer specifically provided that in exchange for a plea of guilty to Count I, the State would recommend that the court sentence Bowen as a second degree offender on Count I, and that Count II of the indictment would be dismissed.*fn2
The court refused to permit this plea to be entered as the "plea offer cut-off date" had expired. The trial commenced that day and on February 8, 1991, the jury returned a verdict of guilty on both counts of the indictment.
On August 23, 1991, Bowen filed a motion supported by affidavits, seeking to vacate the guilty verdict and to allow the entry of a plea of guilty to Count I in accordance with the terms of the plea negotiation of February 7, 1991, or alternatively, to be sentenced as a second degree offender. The motion was rejected in its entirety by the court.
On January 6, 1992, Bowen was sentenced on Count I to the presumptive custodial term for a first degree crime of fifteen
years and on Count II, to the presumptive custodial term of four years for a third degree crime to be served concurrently with the sentence imposed on Count I. Bowen was also ordered to pay $500 and $30 to the Violent Crimes Compensation Board on the respective counts of the indictment.
On appeal, defendant asserts the following points of error:
POINT I THE FAILURE OF THE TRIAL COURT TO PERMIT THE DEFENDANT TO ENTER A PLEA OF GUILTY ON THE DAY OF TRIAL, DENIED HIM DUE PROCESS OF LAW.
POINT II THE TRIAL COURT'S DENIAL OF DEFENSE MOTION TO BE TREATED AS A SECOND DEGREE OFFENDER WAS A DENIAL OF DUE PROCESS OF LAW.
POINT III THE DEFENDANT'S SENTENCE WAS EXCESSIVE AND ILLEGAL.
This appeal does not require a review of the graphic evidence presented at trial which unquestionably established the defendant's guilt. Suffice it to say, Bowen was twenty-five years old and resided with R.P. and their three year old son, as well as R.P.'s two children from former relationships, a teenage son and the victim, T.P.
T.P. shared a bedroom with Bowen and R.P. She often would leave her own bed and sleep with Bowen and R.P. Over an extended period of time, Bowen engaged in sexual acts with T.P., including vaginal intercourse and cunnilingus. T.P. would perform fellatio upon Bowen and would masturbate him. These acts occurred while R.P. shared the same bed. T.P. would also watch Bowen and R.P. engage in sexual intercourse. These sexual activities were discovered when school authorities observed T.P. manifesting unusual behavior. The school authorities eventually notified the Division of Youth and Family Services (D.Y.F.S.) and through an investigation conducted by the prosecutor, with the assistance of D.Y.F.S. personnel and school authorities, the defendant and R.P. were arrested and were ultimately indicted.
The pre-sentence report reveals that Bowen was employed as a helper on a pig farm cleaning buildings and grinding feed for the animals. He has a ninth grade education but was enrolled in a
special education program. He is semi-literate and was born without a left ear drum and has limited hearing in his right ear. Bowen has had no prior contact with the criminal Justice system, either as an adult or as a juvenile. The defense proffered that a defense evaluation conducted by a psychiatrist established that Bowen has an IQ of sixty-five, indicating mild mental retardation.
Plea offers and plea agreements are terms that emanate from the informal negotiations between the State and the accused which have become ingrained as an essential adjunct of the criminal Justice system under the rubric known as plea bargaining. As noted in State v. Taylor, 80 N.J. 353, 360-61, 403 A.2d 889 (1979):
Plea bargaining has become firmly institutionalized in this State as a legitimate, respectable and pragmatic tool in the efficient and fair administration of criminal Justice. Courts across the country have adopted plea bargaining as an appropriate accommodation of the conflicting interests of society and ...