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State v. Gerns

July 9, 1996


On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by Coleman, J. Justices Handler, Pollock, O'hern, Garibaldi and Stein join in Justice COLEMAN's opinion. Chief Justice Wilentz did not participate.

The opinion of the court was delivered by: Coleman

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).


Argued January 2, 1996 -- Decided July 9, 1996

COLEMAN, J., writing for a unanimous Court.

The Legislature has made clear its intention to protect children by providing especially stern punishment for drug offenders who operate on or near schools and school buses. That firm stance against drug trafficking in school zones is expressed in N.J.S.A. 2C:35-7 (section 7), which provides for the imposition of a three year minimum mandatory period of parole ineligibility. However, in an effort to encourage offenders to cooperate with law enforcement efforts to apprehend well-insulated drug traffickers, the Legislature contemporaneously enacted N.J.S.A. 2C:35-12 (section 12) to permit the prosecutor to recommend relaxation of the mandatory term of parole ineligibility required in section 7 cases when a defendant has entered into an agreement with the State.

During an undercover narcotics investigation conducted by the Narcotics Strike Force of the Somerset County Prosecutor's Office, Charles Gerns sold marijuana to an undercover detective. The sale took place in Gerns' home, which is located in a school zone. Gerns was indicted on two counts of fourth-degree distribution of marijuana; third-degree distribution of marijuana within 1,000 feet of school property; third-degree possession of marijuana with intent to distribute; and third-degree possession of marijuana with intent to distribute within 1,000 feet of school property.

As part of a plea agreement, Gerns executed a cooperation agreement. Gerns pled guilty to the indictment and, in exchange, the State promised to recommend a term of four years imprisonment with a three-year parole disqualifier. The State also agreed to inform the sentencing Judge of any cooperative efforts made by Gerns on behalf of the State. Several days prior to the sentencing hearing, the prosecutor sent a letter to the sentencing court, without sending a copy to defense counsel, informing the court that Gerns had failed to cooperate with the State. At the court's discretion, a copy of the letter was given to defense counsel in open court. Defense counsel claimed that Gerns did not purposefully fail to cooperate. Because the prosecutor concluded that Gerns had not cooperated, the prosecutor withheld any recommendation that Gerns' term of parole ineligibility be less than the required three years. Gerns was sentenced to concurrent custodial terms of four years with a three-year period of parole ineligibility.

Gerns appealed, contending that the prosecutor did not follow the guidelines adopted by the Attorney General in response to State v. Vasquez in respect of the reduction in the mandatory minimum in school zone cases. The Appellate Division reversed the decision of the trial court, finding that the prosecutor exercised his discretion in an arbitrary and capricious manner in not waiving the three-year term of parole ineligibility. The case was remanded for resentencing as if the prosecutor had waived the entire mandatory term.

The Supreme Court granted the State's petition for certification. In its petition, the State argues that it did not violate the agreement because Gerns' cooperation was of no value to the State. Therefore, the prosecutor was not obligated to recommend a waiver of the mandatory minimum sentence. Gerns contends that his good faith effort satisfied his obligation to cooperate with the prosecutor's office.


It is neither arbitrary nor capricious for a prosecutor to base his or her decision to recommend a waiver of the mandatory sentence required by N.J.S.A. 2C:35-7 on the value of the cooperation received from a defendant.

1. Section 12 permits a waiver of the section 7 mandatory sentencing provision only at the option of the prosecutor. The statutory scheme manifested in sections 7 and 12 removes most of the sentencing court's discretionary power. Because of the enormous and uncontrolled power vested in prosecutors under section 12, guidelines have been adopted to save section 12 from constitutional infirmity.

The Attorney General promulgated guidelines which contemplate that county prosecutors would establish and implement their own guidelines pursuant to the Attorney General's model. Counties that have not adopted their own guidelines are required to follow the Attorney General Guidelines in order to avoid an unconstitutional Disposition under section 7. Because Somerset has not adopted its own guideline, this case is controlled by the Attorney General Guidelines. (pp. 5-11)

2. Based on the type of plea, the Guidelines allow the prosecutor to waive the mandatory minimum term if defendant provides cooperation of substantial value to the State. The State defines "cooperation" as assistance given by the defendant that results in the production of valuable information for the State. The Attorney General Guidelines were amended in 1993 (Guideline Revisions). Under the clear language of the Guideline Revisions, the prosecutor's recommendation with respect to section 7 parole ineligibility is to be based on the value of defendant's cooperation as determined by the prosecutor. The requirement that the cooperation be of substantial benefit to the State is consistent with the Drug Act's overall objective and is in accord with the approach established in the federal system. (pp. 11-17)

3. Sentencing courts should not automatically impose the statutory-mandated sentence when the prosecutor informs the court that a defendant has not cooperated. Even when a hearing is not requested, defense counsel prior to sentencing should be provided with a copy of the prosecutor's waiver recommendation letter addressed to the court. Also, a defendant should be permitted to offer an explanation for non-cooperation or the extent of cooperation. That right was afforded Gerns in this case. Notwithstanding the fact that the Attorney General Guidelines and the Guideline Revisions vest the prosecutor with the authority to decide whether a defendant has provided cooperation that has substantial value to the State, a prosecutor may not be arbitrary or capricious in that determination. Thus, if requested, a defendant is entitled to a hearing to examine the prosecutor's determination that defendant did not cooperate, or that the cooperation was not of substantial value to the State. (pp. 17-18)

4. The plea agreement should have defined cooperation to ensure that Gerns understood the penal consequence of his plea. Thus, on remand, Gerns may either: 1) withdraw his guilty plea; 2) move for a hearing on whether his cooperation was of substantial benefit to the State; or 3) renegotiate the plea agreement. If Gerns elects to have a hearing on whether he satisfied the cooperation agreement, the prosecutor at the Conclusion of the hearing must state the reasons for his or her waiver decision. In addition, the plea agreement should have indicated more precisely the sentence the prosecutor would recommend to the court if Gerns' cooperation was determined by the prosecutor to be of substantial value to the State. Plea agreements must contain a range on the prosecutor's conditional recommendation. Alternatively, the plea or post-verdict agreement may specify the precise sentence if defendant provides cooperation to the satisfaction of the prosecutor. (pp. 18-21)

5. Allowing counties to adopt their own guidelines, in conjunction with significant prosecutorial discretion, may lead to disparity rather than uniformity in sentencing. Thus, the Attorney General is asked to review the state-wide sentencing practices and experience under the Attorney General Guidelines and to furnish the Court with the results of that review as well as any forthcoming recommendations. The County Prosecutors and the Public Defender are also requested to participate in this effort. Although Gerns' sentence did not violate the Attorney General Guidelines, it is urged that the prosecutor and the trial court in the exercise of their respective discretion to be especially mindful of the problem posed by the potential of disparity in considering an acceptable plea agreement and sentence. (pp. 21-23)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for further proceedings consistent with this decision. Unless Gerns seeks relief in the Law Division within forty-five days from this decision, the sentence of four years with three years of parole ineligibility previously imposed by the Law Division will be reinstated.


The opinion of the Court was delivered by COLEMAN, J.

The primary issue in this appeal is whether a school-zone drug offender who signs a plea agreement that calls for "cooperation" in State drug investigations and prosecutions in exchange for a favorable recommendation at sentencing satisfies the plea agreement by good faith efforts that produce nothing of value to the State. We hold that under the Attorney General Guidelines promulgated pursuant to State v. Vasquez, 129 N.J. 189, 609 A.2d 29 (1992), a defendant's cooperation agreement can be satisfied only if his or her efforts are of substantial value to the State.


During an undercover narcotics investigation conducted by the Narcotics Strike Force of the Somerset County Prosecutor's Office, defendant, Charles Gerns, sold marijuana to an undercover detective. The sales occurred on September 12, 1993, when defendant sold one quarter of an ounce and on December 28, 1993, when he sold an additional one eighth of an ounce. Both sales occurred from his home which was located in a school zone. When defendant was arrested at his home on January 14, 1994, for those two sales, a consent search of ...

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