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State v. D.S.

April 16, 1996

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
IN THE INTEREST OF D.S., JUVENILE-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. IN THE INTEREST OF D.Z., JUVENILE-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. IN THE INTEREST OF F.C., JUVENILE-APPELLANT.



On appeal from Superior Court, Chancery Division, Family Part, Passaic County.

Approved for Publication April 16, 1996.

Before Judges Petrella, P. G. Levy, and Eichen.

PER CURIAM

In these consolidated appeals, the juvenile-appellants D.S., D.Z., and F.C. (collectively "the juveniles") appeal from the denial of the State's motion for modification of their Dispositions pursuant to R. 3:21-10(b)(3) and R. 5:24-6, *fn1 asserting that the Judge was required under their plea agreements to reduce their Dispositions (also referred to as sentences). For the following reasons, we affirm the Judge's decision to deny the motion for modification of the juveniles' Dispositions.

This appeal stems from the murder of a seventeen-year-old male by five of his supposed friends, including the aforementioned juveniles, another juvenile, defendant James Wanger, who was tried and convicted of murder as an adult, and adult defendant Frank Castaldo, who was convicted of murder. The group, after planning and attempting to murder the victim on three prior occasions, finally killed the victim on the fourth occasion. Although the specific facts of the murder are not directly relevant to this appeal, we note that the murder was conducted in a very heinous fashion where the alleged friends, relying on the victim's trust, brought the victim to the parking lot of a school and strangled him while he was told to recite the "Hail Mary" prayer.

Wanger, who actually strangled the victim with an electrical cord, and Castaldo, the group's leader, were tried and convicted as adults with the aid of testimony given by the juveniles pursuant to their respective plea agreements. In return for their testifying, the juveniles were promised under the plea agreement that they would not be tried as adults and that the State, following the prosecution of Wanger and Castaldo, would move the court to resentence the juveniles, recommending that D.S. and F.K. be resentenced to a term of twelve years and that D.Z. be resentenced to a term of fifteen years. The relevant portions of the plea agreement read as follows:

4. Each juvenile has already given one or more sworn statements in this matter. In return for truthful cooperation already given and in return for each juvenile's agreement to cooperate truthfully and fully in the future, the State will not seek to prosecute [F.C.], [D.Z.], or [D.S.] as adults for their participation in the murder of [the victim].

5. The State agrees to move for the dismissal of aggravated arson and tampering with physical evidence charges pending against [F.C.] arising out of this matter. If [F.C.], [D.Z.] and/or [D.S.] give truthful and complete cooperation in the future regarding the prosecution of the murder of [the victim] then the State will file no additional charges related to the murder of [the victim] against that juvenile or those juveniles who give truthful and complete cooperation in the future regarding the prosecution of the murder of [the victim].

6. Since it is not feasible to postpone the sentencing of [F.C.], [D.Z.], and [D.S.] indefinitely while the prosecution of James P. Wanger and Frank Castaldo is pending, the State will ask the Family Court to sentence [F.C.], [D.Z.], and [D.S.] without delay. The State will urge the Family Court to sentence [F.C.], [D.Z.], and [D.S.] to be incarcerated for 20 years in a suitable institution maintained by the Department of Corrections for the rehabilitation of delinquents. At the time of sentencing, the State agrees to advise the sentencing Judge and the New Jersey State Parole Board that, if, after being sentenced, [F.C.], [D.Z.], and/or [D.S.] give truthful and complete cooperation in the prosecution of the matter of the murder of [the victim] the State will move that each juvenile who gave truthful and complete cooperation be resentenced by the Family Court based upon any future truthful and complete cooperation which each may have given.

7. If [F.C.], [D.Z.], and/or [D.S] are resentenced based upon their future truthful and complete cooperation with the State, then the State will advise the Family Court of the extent of each juvenile's cooperation. Furthermore, the State will request that [F.C.], [D.Z.], and/or [D.S.], receive a specific term at the time of resentencing. The State will recommend that [F.C.] and [D.S.] be resentenced to a term of 12 years and [D.Z.] to a term of 15 years *fn2 in a suitable institution maintained by the Department of Corrections for the rehabilitation of delinquents.

8. The State agrees that, if after being sentenced, [F.C.], [D.Z.], and/or [D.S.] give truthful and complete cooperation in the prosection of the matter of the murder of [the victim], the State will move that each juvenile who gave truthful and complete cooperation be resentenced by the Family Court. . . . [Emphasis added.]

The plea agreement was accepted by the juveniles, each of whom was represented by counsel, and by the court at the Disposition hearing. The agreement was signed by the juveniles, their attorneys, and the State before it was presented to the Judge.

In court, on the record, and prior to each juvenile voluntarily and knowingly acknowledging his plea to what would have been murder had he been charged as an adult, the agreement was read aloud in its entirety. Each juvenile was told that he could ask questions regarding anything not understood and was asked whether he understood and freely and willingly accepted the plea, to which each responded in the affirmative. The Judge then questioned each juvenile whether there were any additional or secret agreements made, to which each answered in the negative. In addition, the Judge explained to the juveniles that he would not be bound by the State's subsequent recommendation for a reduction in their Dispositions. The Judge had each juvenile's attorney elicit from the juvenile the requisite factual basis for pleading guilty to what would have been a violation of N.J.S.A. 2C:11-3(a)(1), if they had been tried as adults.

At the Disposition hearing, the State noted that if the juveniles truthfully and completely cooperated in the prosecutions against Wanger and Castaldo, it would move the court to resentence them to specific terms. Prior to imposing the Dispositions, the Judge again stated that he was "not bound by [the plea] agreement at [the] time of Disposition" and that "any applications made in the future are that, . . . applications." The Judge elaborated that he did not have to "agree to those applications, only that the parties have a right to make [those] applications for the purpose of consideration by ...


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