On appeal from Superior Court, Law Division, Hudson County.
Before Judges Petrella and Cuff.
Defendant Michael Della Rosa appeals from the Law Division's finding that he had violated probation pursuant to N.J.S.A. 2C:45-3 and from his resentencing under N.J.S.A. 2C:43-6(a) to four years in prison. A stay was granted pending appeal.
On appeal, Della Rosa relies on an "agreement" he signed with the Hudson County Probation Department that essentially required him to comply with the probation conditions in return for the possibility of a shorter probationary period. In asserting the validity of this agreement Della Rosa argues:
I. The contract is a valid agreement and within the contemplation of the sentencing Judge when imposing the original sentence, and the agreement does not fail for inadequacy of consideration.
II. Based upon the court's findings as to the date of notification the contract probation period had expired and no violation of probation could have occurred.
III. The trial Judge should have recused himself upon defendant's motion.
The history of this matter can be briefly stated. On November 3, 1989, Della Rosa pleaded guilty to possession of gambling records (N.J.S.A. 2C:37-3(c)) and was sentenced to five years of probation, beginning on November 27, 1989. On December 11, 1989, Della Rosa agreed to comply with probation conditions in a document whose general terms were apparently approved by the then assignment Judge.*fn1 The document is entitled "Hudson County Probation Department Contract Probation." The introductory paragraph recites:
Pursuant to an agreement with the Assignment Judge of Hudson County, Probation terms may automatically be reduced upon the successful completion of mutually agreed upon criteria. (Emphasis added).
The agreement is signed only by Della Rosa and a supervising probation officer. A copy of the agreement is annexed to this opinion as an exhibit.
Under the agreement, Della Rosa could be eligible for a reduced term of three years and four months, provided he: reported regularly to probation as instructed; paid his fine of $5,000 and court costs; paid his Violent Crimes Compensation Board (VCCB) penalty of $30; and obeyed all the other conditions of probation which he had signed in addition to this contract. No special conditions were imposed. Thus, Della Rosa in effect undertook to do no more than he was required to do by statute with respect to probation, see N.J.S.A. 2C:45-1(b)(10) (report to the probation officer on the case); N.J.S.A. 2C:45-1(b)(11) (pay a fine); and N.J.S.A. 2C:45-1(c) (pay the VCCB penalty amount specified under N.J.S.A. 2C:43-3.1).
Since Della Rosa signed this "agreement" on December 11, 1989, the three-year-four-month period would have run on March 3, 1993, and he would have been ...