On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Before Judges Stern, Keefe and Humphreys. Stern, J.A.D. (dissenting).
The opinion of the court was delivered by
HUMPHREYS, J.S.C. (temporarily assigned).
The defendant sold cocaine to an undercover police officer within 1,000 feet of the P.J. Hill Elementary School in Trenton. The Legislature has prescribed a mandatory minimum penalty for this crime of three years imprisonment during which the defendant will be ineligible for parole. N.J.S.A. 2C:35-7. The Legislature has also authorized the prosecutor to waive the mandatory minimum prison term in whole or in part. See N.J.S.A. 2C:35-12.
In this case, the prosecutor entered into a plea agreement with the defendant in which the prosecutor agreed to a reduction of the three year minimum prison term to one year. The prosecutor also agreed to dismiss other charges. The defendant pled guilty and was sentenced to one year in prison pursuant to the plea agreement.
The defendant appeals his sentence contending that he was unfairly and illegally sentenced. He argues that if he had committed the crime in certain other counties, the prosecutors there would have agreed to a lesser sentence, namely 364 days in the county jail as a condition of probation. The defendant reasons that therefore, notwithstanding his voluntarily entered plea agreement, he too must receive the lesser county jail sentence. We disagree.
The Comprehensive Drug Reform Act of 1986 ("Act"), N.J.S.A. 2C:35-1 et seq., provides for a mandatory minimum custodial sentence between one-third and one-half of the sentence imposed but no less than three years for a person selling certain drugs within 1,000 feet of a school. N.J.S.A. 2C:35-7. This provision reflects "the Legislature's intention to impose heavy penalties on drug offenders ... In promulgating the school-zone statute, the Legislature intended to keep school zones drug-free in order that schools can effectively educate children about the dangers of drug use." State v. Dillihay, 127 N.J. 42, 53, 601 A.2d 1149 (1992).
The statute also provides that the prosecutor may enter into a plea agreement with the defendant in which the prosecutor waives the three year minimum in whole or part. N.J.S.A. 2C:35-12. The constitutionality of the Act was challenged on the ground that the ability to waive gave the prosecutor sentencing power in violation of the separation of powers doctrine. See State v. Shaw, 131 N.J. 1, 618 A.2d 294 (1993); State v. Vasquez, 129 N.J. 189, 195, 609 A.2d 29 (1992); State v. Peters, 129 N.J. 210, 609 A.2d 40 (1992). The Supreme Court upheld the constitutionality of the Act by requiring that the prosecutor's exercise of a waiver be subject to judicial oversight. Vasquez, supra, 129 N.J. at 196. The Court stated that the prosecutor should indicate on the record the reasons for the waiver decision. Ibid. The defendant would be entitled to relief if the defendant could show clearly and convincingly that the prosecutor's exercise of discretion was arbitrary and capricious. Ibid.
The Court also interpreted the statute to require that guidelines as described in State v. Lagares, 127 N.J. 20, 32, 601 A.2d 698 (1992), be adopted to assist prosecutorial decision making. The Supreme Court in Lagares had stated that "because we are not familiar with all of the factors that law enforcement agencies might consider significant in determining whether a defendant should be exempted from an extended sentence, we request that the Attorney General, in consultation with the various county prosecutors, adopt guidelines for use throughout the state. Such guidelines will promote uniformity and provide a means for prosecutors to avoid arbitrary or abusive exercises of discretionary power." Ibid.
The Attorney General thereafter adopted guidelines. See Directive Implementing Guidelines Governing Plea-Bargaining and Discretionary Decisions in Drug Prosecutions Involving Mandatory Terms issued by Attorney General Robert J. Del Tufo to the Director of the Division of Criminal Justice and All County Prosecutors on September 15, 1992 ("Guidelines").
Under the guidelines, each county prosecutor must adopt and implement written policies governing plea and post-trial agreements and discretionary decisions using the Attorney General's guidelines as a "model." Guidelines at 5-6. School zone violators must be incarcerated. Guidelines at 5. The "minimum" period of incarceration is 364 days in the county jail as a condition of probation. Ibid. Other provisions in the guidelines afford specific and detailed guidance to the prosecutors. See Guidelines at 5-10.
The Attorney General further provides that "nothing contained in these guidelines shall preclude a prosecutor from adopting more stringent policies or standardized plea offers consistent with the needs, resources and enforcement priorities of each county." Guidelines at 5. Our Dissenting colleague finds this provision unconstitutional because it "formalizes the potential arbitrariness by permitting deviation from county to county." The Dissent argues that this provision should be deleted from the guidelines, and we should hold that "a sentence recommendation premised on local guidelines which deviate from the Attorney General's otherwise uniform guidelines is arbitrary within the meaning of Lagares and Vasquez. "
The underlying premise of the Dissent appears to be that the Supreme Court in requesting guidelines to promote uniformity has required as a matter of constitutional mandate that prosecutorial plea bargaining policies in drug school zone cases be completely uniform throughout the state; otherwise the executive branch would be violating the separation of powers doctrine by encroaching on the authority of the judiciary in sentencing criminals. Hence, the Dissent concludes that a "local" guideline which differs from the Attorney General's model to the disadvantage of the defendant is arbitrary and invalid per se.
We disagree. The Supreme Court of New Jersey has not so ruled. In Lagares the Supreme Court requested that the Attorney General adopt guidelines to "promote" uniformity. Lagares, supra, 127 N.J. at 32. If the Supreme Court had intended to mandate uniformity, then the Court would have so indicated. Promoting uniformity is not the same as mandating it.
Furthermore, the Supreme Court has not attempted to promulgate the content of such guidelines. On the contrary, the Court candidly admitted in Lagares that it was "not familiar with all of the factors that law enforcement agencies might consider significant in determining whether a defendant should be exempted from an extended sentence." Ibid. We can glean no intimation in the quaternity of Supreme Court decisions, Lagares, Vasquez, Peters, and Shaw, that in the formulation of plea policies in school zone cases, the Supreme Court intended that prosecutors throughout the state must march in lock step.
The Attorney General's decision to allow some flexibility depending on local conditions is sensible and practical. Prosecutors are not fungible automatons. The prosecutor in one county may determine that the large number of drug sales near schools in that county requires stringent plea policies to deter such crimes and carry out the legislative intent that school zones should be free of drug sales.
The prosecutor in a second county may decide that drug sales in school zones are not a major problem in that county. The courts in that county may be burdened with the court congestion that plagues some of our vicinages. See Shaw, supra, 131 N.J. at 13. The prosecutor in that county may determine to concentrate the limited resources of the criminal Justice system on the prosecution of armed robbers, burglars or juvenile offenders. The prosecutor there may decide that a more lenient plea bargaining policy in drug cases is warranted so that law enforcement resources in a time of tight budgets can be concentrated on these other serious crimes.
Nor are counties in New Jersey all homogenous. A prosecutor in a densely populated urban county may have to cope with rapidly escalating crime. In several such urban counties in our state, the bulk of drug sales are within 1,000 feet of a school. In other lightly populated rural counties, few drug sales may be within 1,000 feet of a school. Obviously, the prosecutors ...