On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Before Judges Shebell, Long and Landau.
The opinion of the court was delivered by
In these consolidated appeals, defendant, Angel Matos, seeks to enforce the terms of a plea bargain, and to dismiss as without authority, his citation for contempt under N.J.S.A. 2A:81-17.3 for refusal to testify against his co-defendant, Miguel Alvarez.
Defendant was charged in a single indictment with crimes that took place on three different dates. The following charges relate to incidents occurring on July 26, 1991, and August 2, 1991: possession of a controlled dangerous substance, namely cocaine, N.J.S.A. 2C:35-10a(1) (count one); possession of a controlled dangerous substance, namely cocaine, within 1,000 feet of a school, N.J.S.A. 2C:35-10 (count two); possession of a controlled dangerous substance, namely cocaine, in the second degree, with the intent to distribute, N.J.S.A. 2C:35-5b(2) (count three); possession of a controlled dangerous substance, namely cocaine, with the intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count four); distribution of a controlled dangerous substance, namely cocaine, in the second degree, N.J.S.A. 2C:35-5b(2) (count five); and distribution of a controlled dangerous substance, namely cocaine, within 1,000 feet of a school zone, N.J.S.A. 2C:35-7 (count six).
The remaining charges in the indictment, counts numbered seven through thirteen, involve incidents occurring on August 17, 1991. Along with defendant, two co-defendants, Miguel Alvarez and Israel Rivera, were named in these counts only. All three were charged with the following: possession of a controlled dangerous substance, namely cocaine, N.J.S.A. 2C:35-10a(1) (count seven); possession of a controlled dangerous substance within 1,000 feet of a school, N.J.S.A. 2C:35-10 (count eight); possession of a controlled dangerous substance, namely cocaine, with the intent to distribute in the second degree, N.J.S.A. 2C:35-5b(2) (count nine); possession of a controlled dangerous substance, namely cocaine, with the intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count ten); distribution of a controlled dangerous substance, namely cocaine, in the second degree, N.J.S.A. 2C:35-5b(2) (count eleven); distribution of a controlled dangerous substance, namely cocaine, within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count twelve); and conspiracy to distribute a controlled dangerous substance, namely cocaine, in the second degree, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count thirteen).
Defendant and his attorney negotiated the terms for a written plea agreement with the Monmouth County Prosecutor's Office. Pursuant to the plea agreement, defendant appeared before the Law Division Judge on July 1, 1992. Defendant was placed under oath and questioned about the agreement by the Judge and the assistant prosecutor. Because defendant answered questions differently than what was anticipated by the assistant prosecutor, the proceedings were concluded without acceptance of the guilty plea.
Subsequently, defendant made a motion to enforce the plea agreement of July 1, 1992. This motion was heard and denied on November 10, 1992. Pursuant to an "open plea," defendant pled guilty that same day to counts five, six, eleven, twelve, and thirteen of the indictment. Sentencing was scheduled for December 11, 1992.
The assistant prosecutor requested a forty-five day adjournment of sentencing, in order to explore the possibility of defendant testifying voluntarily on behalf of the State at the trial of co-defendant Alvarez. On January 15, 1993, defendant was sentenced. The Judge merged counts twelve and thirteen into count eleven, and count six into count five. On count five, defendant was sentenced to the custody of the Commission of the Department of Corrections for a period of seven years, with three years of parole ineligibility. Defendant was also ordered to pay a $2,000 Drug Enforcement Demand Reduction (DEDR) penalty, a $50 lab fee, and a $30 Violent Crimes Commission Board (VCCB) penalty. His driving license was suspended for six months. The same sentence was imposed on count eleven to run concurrently with that imposed on count five, except that the license revocation of six months for each count was not to run currently. Defendant was given credit for 518 days already spent in custody. The remaining counts were dismissed.
Defendant filed a motion for leave to appeal nunc pro tunc. This was granted on April 7, 1993.
The prosecutor filed a petition with the Attorney General for permission to seek immunity for the defendant. On August 19, 1993, the prosecutor, defendant and defense counsel appeared in open court before the Judge who was to try the co-defendant, Miguel Alvarez. At this hearing, the Judge entered an order approving the grant of immunity and compelling defendant to testify with that immunity at the trial.*fn1 The prosecutor stated:
I have been asked by the Attorney General, prior to actually entering the Order, to have Your Honor make another determination that Mr. Matos still wishes to invoke his privilege.
The Judge then held defendant in contempt because defendant stated he did not intend to testify despite the grant of immunity. On August 26, 1993, defendant filed a notice of appeal from this order.
On October 4, 1993, defendant appeared before the same Judge and agreed to testify. After a hearing, the Judge ordered that defendant be purged of contempt. Since the Judge had been on vacation when defendant had made his decision to testify, it was found that defendant purged himself of contempt on September 30, 1993. Defendant did not receive credit on his jail sentence while he was in the Monmouth County Correctional Institute from August 19, 1993 to September 30, 1993, on the contempt charge.
We granted defendant's request for consolidation of the appeals from the judgment of conviction on the indictment and from the contempt citation.
In his brief on appeal, defendant raises the following legal arguments:
POINT I: PRINCIPLES OF FUNDAMENTAL FAIRNESS MANDATE THAT THIS COURT ENFORCE THE TERMS OF THE PLEA BARGAIN DEFENDANT AND THE STATE ENTERED INTO ON JULY 1, 1992. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. 1, PARS. 1, 9, 10.
POINT II: SINCE THE TRIAL COURT LACKED THE AUTHORITY TO HOLD DEFENDANT IN CONTEMPT OF COURT IN ADVANCE OF THE CO-DEFENDANT'S TRIAL, DEFENDANT SHOULD BE GRANTED JAIL CREDIT ON HIS PRISON SENTENCE FOR THE PERIOD OF TIME THAT HE WAS INCARCERATED UNDER THE CONTEMPT ORDER.
The underlying facts are that on July 26, 1991, defendant sold one-half ounce of cocaine for $450 to an undercover police officer at a Burger King Restaurant in Hazlet. This purchase was made after arrangements had been made by a confidential informant. The police officer contacted defendant a second time on August 2, 1991, and purchased the same amount of cocaine at the same location. No arrests followed these purchases.
On August 17, 1991, the undercover officer contacted defendant to purchase three ounces of cocaine. Defendant told the undercover officer that he couldn't get it, but that he "knew somebody who supplied a lot in cocaine." The price discussed was $750 per ounce for a total of $2,250. Defendant indicated to the undercover officer that his friend would be coming with him to make the delivery. That night, co-defendant, Miguel Alvarez, met defendant at the Airport Plaza shopping center in Hazlet. Defendant and Alvarez then went in Alvarez's car to the Burger King to meet the undercover officer. Alvarez gave the cocaine to defendant who gave it to the officer. They were then placed under arrest.
It is evident from what transpired at the initial plea hearing that the assistant prosecutor had anticipated that defendant would testify that Alvarez was his supplier on the first two occasions on which defendant sold the cocaine to the undercover officer, as well as at the time of the final sale when defendant was arrested. The assistant prosecutor represented that defendant's counsel had, during negotiation of the plea agreement, represented that defendant told her Alvarez was the supplier on all three dates listed in the indictment. Therefore, when defendant did not testify in accordance with the prosecutor's expectations, the proceedings under the plea agreement were terminated by the Judge.
A second Judge, when denying defendant's formal motion to enforce the plea agreement of July 1, 1992, stated:
All right. Well, I decline to enforce a plea agreement which in fact is not a plea agreement at all. It is obvious that the plea agreement did not go through before [the plea Judge.] On two other occasions counsel indicates that the Court declined to act on her arguments to enforce that plea agreement: One, at the plea cut off; and two, at the motion for a severance. I don't conceive that it is the Court's function to force the ...