On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication April 11, 1995.
Before Judges Landau, Conley and Newman. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
Defendant was indicted on two counts of fourth-degree theft, N.J.S.A. 2C:20-3. Pursuant to a plea bargain in which the State agreed not to seek incarceration, he admitted under oath to the theft. That plea was thereafter withdrawn. We are not told why. A second guilty plea was again offered, during which defendant under oath again admitted to the theft. The plea bargain was similar to the first but at the time of sentencing the trial Judge rejected the offer in light of defendant's extensive prior record of which, apparently, the State was not aware at the time of either plea. Subsequently defendant was tried by a jury. After the State presented its case and the trial Judge inquired as to whether defendant was going to testify, the following colloquy occurred:
[Defense counsel]: We're in a bit of a quandary here. One of the problems is that on 2 occasions, Mr. Rodriguez has tried to enter a plea of guilty in return for a probationary sentence. On each of those occasions, he was put under oath and indicated that he, in fact, committed the crime.
Now he's given the opportunity to be put under oath, and he indicates to me he wants to tell the truth, that he did not commit the crime. And I've advised him that such a circumstance, although he can't be cross-examined on what was said at the time of the pleas, at a later date, there's a potential for a perjury charge. And that seems to be complicating the situation.
I mean, they waved the carrot in front of him and said, "You don't have to go to ill [sic] gentleman. All you have to do is tell us that you committed the crime."
He went for the carrot, and they took it away.
And now he has a problem about testifying in this case.
Now, if we had some assurances that he wasn't going to be charged with perjury down the road, he would rush to the stand, I believe, but I'm not sure where we're going to go from here.
THE COURT: I'm not either.
[The Prosecutor]: I'm not going to make ... I'm not going to make any assurance as to perjury charges at all. I wouldn't do that. I don't think I'm capable of doing that.
Defendant did not testify. He was convicted of one count of fourth-degree theft and a custodial term of eighteen months was imposed along with the required Violent Crimes ...