On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Shebell and Landau. The opinion of the court was delivered by Shebell, P.J.A.D.
We have consolidated for purposes of this opinion the two above captioned appeals as they both involve questions regarding the validity and application of court ordered plea cut-off dates.
In July 1988, defendant, Enoch Brimage, was indicted in two counts: count one, aggravated sexual assault, N.J.S.A. 2C:14-2a; and count two, endangering the welfare of a child, N.J.S.A. 2C:24-4a. He went to trial on this indictment. However, the trial ended with a hung jury in December 1989.
In July 1991, defendant was indicted in three counts: two counts of attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2; and one count of obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1.
On December 18, 1992, at a pretrial conference, the State offered a plea bargain on the two indictments. The defendant rejected the offer on the record after being informed that there would be no further plea bargaining if he rejected the offer. The sexual assault indictment was then assigned to a Judge for trial to commence on March 1, 1993. The case was expected to require approximately ten to fifteen trial days.
On March 1, 1993, the trial was adjourned because the Judge assigned to the case was on trial in another matter. On that date, defendant expressed a willingness to accept the plea bargain offered by the State. Under the agreement, defendant was to plead guilty to aggravated sexual assault and serve five years of incarceration, to run consecutive to a sentence he was already serving on unrelated charges. There was to be no period of parole ineligibility and the remaining count of the indictment would be dismissed. Additionally, the burglary indictment would be dismissed at the time of sentencing. The assistant prosecutor had no objection to defendant pleading in accordance with this original plea offer.
The trial Judge told the defendant's attorney that permission would have to be obtained from the Presiding Judge of the Criminal Part in Middlesex County before the plea could be taken. The Presiding Judge refused to consent because it was past the trial plea cut-off date and there could be no plea bargaining so close to the date set for trial. On March 5, 1993, the Presiding Judge entered an order barring the entry of a negotiated plea of guilty.
On that same day, defendant's attorney signed a Certification setting forth the facts of this matter. On March 10, 1993, the trial Judge signed an order staying defendant's trials pending the filing of an interlocutory appeal. On April 18, 1993, we granted defendant's motion for leave to appeal.
In July 1992, defendant, Curtis Lagrone, was indicted in four counts: count one, possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); count two, possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); count three, distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); and count four, possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1).
The following facts as presented by defendant on appeal were adopted by the State's brief. Defendant appeared before the Presiding Judge of the Criminal Part in Middlesex County, for a trial conference, at which time a plea offer was made by the State. Defendant rejected the offer and the case was assigned to a Judge for trial listing. On June 2 or 3, 1993, defendant's attorney received a call from the trial Judge's criminal case manager. The manager stated that there appeared to be charges pending against defendant in addition to the indictment that was assigned to the Judge's trial list. The new charges, not yet presented to a grand jury, were for drug possession and drug distribution. On June 7, 1993, defendant's attorney informed the trial Judge that because of the new charges, he desired to negotiate and resolve all of the
matters. Defendant's attorney was told that there could be no additional plea bargaining and that the indictment would be tried on June 16, 1993. According to defendant, the trial Judge indicated "that he had been assigned indictment 180-01-93 by . . . the presiding criminal court Judge for purposes of trial and trial only and that he would not entertain any plea bargaining regardless of whether there was any outstanding new charges." On June 8, 1993, the trial Judge signed an order barring any further plea negotiations and denying a stay of the proceedings.
On June 11, 1993, we granted defendant's motion for leave to appeal. We also directed that "[t]he case should be calendared back to back with State v. Brimage, 271 N.J. Super. 369, 638 A.2d 904 in which motion for leave to appeal was granted on April 28, 1993."
In both appeals, the defendant and the prosecutor join in urging that we reverse the Law Division orders obstructing the entry of the negotiated pleas. It is argued that the Executive branch has the right to bring charges in criminal matters and to alter those charges, and that under the separation of powers doctrine, the Judiciary may not, for mere administrative convenience, interfere with the prosecutor's discretion by refusing to entertain a plea the prosecutor has negotiated.
It is emphasized that in the Lagrone case, the situation had been substantially altered as a result of the new charges. The argument is made that while the Judge may reject a plea bargain if it violates the interests of Justice, the Judge's refusal to allow the prosecutor to make an offer which would include the new charges interferes with the State's right to prosecute. It is asserted that the Judiciary must give deference to the Executive when exercising judicial discretion and may ...