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State v. Brimage

February 19, 1998


Chief Justice Poritz PRESIDING

Argued October 21, 1997 On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Garibaldi

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

We are again presented with issues relating to Section 12 of the Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to 36A-1 (hereinafter "CDRA"). Under N.J.S.A. 2C:35-12 ("Section 12"), a prosecutor may, through a negotiated plea agreement or post-conviction agreement with a defendant, waive the mandatory minimum sentence specified for any offense under the CDRA. To satisfy the constitutional requirements of the separation of powers doctrine, N.J. Const. art. III, ¶ 1, this Court in State v. Vasquez held that prosecutorial discretion under Section 12 must be subject to judicial review for arbitrary and capricious action. 129 N.J. 189, 195-96 (1992). To further that review, the Court held that prosecutors must adhere to written guidelines governing plea offers and state on the record their reasons for waiving or not waiving the parole disqualifier in any given case. Ibid.

In response to that holding, the Attorney General promulgated plea agreement guidelines. See Directive Implementing Guidelines Governing Plea-Bargaining and Discretionary Decisions in Drug Prosecutions Involving Mandatory Terms, from Robert J. Del Tufo, Attorney General, to the Director, Division of Criminal Justice and All County Prosecutors (Sept. 15, 1992) (hereinafter "Guidelines" or "1992 Guidelines"). Those Guidelines were subsequently amended by the Attorney General's 1997 Supplemental Directive and then were again amended by the Uniformity Directive in 1998; however, the essential provisions of the Guidelines remain the same. See Attorney General's Supplemental Directive For Prosecuting Cases Under the Comprehensive Drug Reform Act, from Peter Verniero, Attorney General, to All County Prosecutors (January 6, 1997) (hereinafter "Supplemental Directive"); Attorney General Directive To Enhance Uniformity in Sentencing Under the Comprehensive Drug Reform Act (January 15, 1998) (hereinafter "Uniformity Directive"). Although the Guidelines prescribe statewide minimum plea offers, they also direct each County Prosecutor's Office to adopt its own written plea agreement policy, which may include standard plea offers that are more stringent than the statewide minimums provided by the Attorney General. Id. §§ 3-4.

Defendant asserts, therefore, that the Guidelines have resulted in variant plea-bargaining policies among the counties. According to defendant, the Guidelines fail to channel prosecutorial discretion adequately under Section 12 and instead result in unjustifiable intercounty disparity in sentencing. More specifically, he argues that his sentence of four years with the presumptive statutory requirement of three years parole ineligibility should have been vacated because if he had committed the same offense in some other counties he would have received a lesser sentence.

We must determine whether the Attorney General's Plea-Bargaining Guidelines are adequate to satisfy the separation of powers doctrine, as enunciated in Vasquez, supra, and to meet the statutory goals of uniformity in sentencing.


On May 12, 1995, the Franklin Township Police, armed with a search warrant, conducted a search of the Brimage residence. According to defendant's statements at the plea hearing, during the search defendant turned over to the police eighteen bags of cocaine totaling about six grams. The police arrested defendant and several other individuals who were present at the time. Defendant stated at the plea hearing that he had purchased the cocaine in New Brunswick and intended to resell it in Franklin Township. Defendant's residence was within 1000 feet of Franklin Township High School.

In September 1995, defendant was indicted under the CDRA for possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), b(3); possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7; and possession of a controlled dangerous substance, contrary to 2C:35-10a(1), all third degree offenses. Four other individuals, including at least two family members, were also charged in the last count.

According to the Presentence Report, defendant was twenty at the time of arrest and living in his grandparents' home with his grandparents, mother, and siblings. Defendant had not previously been arrested for an indictable offense, but he had three prior juvenile adjudications, the last when he was fourteen years old.

The Somerset County Prosecutor's Office offered, in exchange for defendant's guilty plea, to recommend the presumptive sentence for a third degree crime - four years incarceration - plus the mandatory three-year period of parole ineligibility specified in N.J.S.A. 2C:35-7 for the school zone offense. The prosecutor proffered the following reasons for not waiving the parole ineligibility term of N.J.S.A. 2C:35-7: the proofs available to sustain a conviction of defendant were very strong, including defendant's taped confession that he intended to sell cocaine for profit; defendant did not offer to cooperate in any other drug-related investigations; and the Somerset County Prosecutor's Office had sufficient resources to litigate this matter, unlike various other counties that were plagued with a lack of resources or with case management problems.

Defendant moved for additional discovery from the State, requesting a copy of the applicable written guidelines governing plea offers for school zone offenses adopted by Somerset County. The State responded that the County, rather than promulgating its own guidelines, had adopted the Guidelines promulgated by the Attorney General. The State further asserted that that adoption satisfied the requirement that each county adopt a written plea agreement policy. In view of the State's response, the trial court declared defendant's application for discovery moot. Defendant then accepted the prosecutor's original plea agreement offer and pled guilty to all counts in the indictment, although he reserved the right to challenge the validity of the Guidelines and the applicability of the mandatory three-year parole disqualifier to his case. The court accepted defendant's guilty plea.

In March 1996, the court conducted a hearing on defendant's motion for waiver of the mandatory minimum sentence. Defendant argued that the standard plea offer required by the Attorney General's Guidelines for a school zone offense was the minimum offer stated therein - probation conditioned on 364 days in county jail - and that the prosecutor acted arbitrarily and capriciously by not making that offer to defendant. Defendant also maintained that the disparity in plea offers among the various counties based on the Guidelines was unjustifiable. The State, however, argued that the standard plea offer under the Guidelines included the statutory mandatory period of parole ineligibility and that statewide uniformity in such matters was not required. Finding that nonwaiver of the mandatory parole disqualifier was standard policy in Somerset County for school zone cases and that the Guidelines' lesser plea offer was only applicable when the prosecutor in his discretion decided to waive that disqualifier, the court denied defendant's motion.

In the same proceeding, the court held a sentencing hearing. Observing that defendant had been adjudicated a delinquent on three separate occasions, that he had previously been on probation, and that he was still committing crimes, the court found four aggravating factors against defendant: the risk of committing another offense, N.J.S.A. 2C:44-1a(3); defendant's prior criminal record as a juvenile, N.J.S.A. 2C:44-1a(6); the need to deter defendant and other drug dealers, N.J.S.A. 2C:44-1a(9); and imposition of a fine or penalty without a prison term would be seen as just another cost of doing business, N.J.S.A. 2C:44-1a(11). The court found only one mitigating factor, the negative influence of older family members on defendant, N.J.S.A. 2C:43-1b(13). After merging counts one and three into count two, the court sentenced defendant to four years imprisonment with three years of parole ineligibility, in accordance with the prosecutor's recommendation. The court also imposed the requisite fines and a six-month driver's license suspension.

Defendant filed a notice of appeal to the Appellate Division, which was heard by an Excessive Sentencing Panel. In a brief, three-sentence order, the Panel affirmed defendant's sentence, finding that on the record the sentence was not manifestly excessive, unduly punitive, nor an abuse of discretion. The Panel, however, declined to address the disparity issue within the confines of a single case. We granted defendant's petition for certification. 149 N.J. 33 (1997).


We begin our analysis by reviewing the applicable CDRA statutes, the background behind the creation of the Attorney General's Guidelines (namely, the challenges to the statute on separation of powers grounds), the current status of the Guidelines and their resulting intercounty disparity, and finally, the statutory goals of uniformity in sentencing.


N.J.S.A. 2C:35-7 of the Comprehensive Drug Reform Act ("Section 7") requires a mandatory minimum custodial sentence between one-third and one-half of the sentence imposed, but no less than three years for those convicted of dispensing or possessing with the intent to distribute drugs within a school zone, and no less than one year for those convicted of the same offense with less than one ounce of marijuana. Upon signing this legislation, Governor Thomas H. Kean emphasized the strong posture of the statute, stating: "This is a declaration of war and, in this war, we will take prisoners." Office of the Governor, News Release (April 15, 1987). That firm stance comports with the Legislature's intention, as stated in its Declaration of Policy and Legislative Findings for the CDRA, to "provide for the strict punishment, deterrence and incapacitation of the most culpable and dangerous drug offenders." N.J.S.A. 2C:35-1.1(c); accord State v. Shaw, 131 N.J. 1, 8 (1993); Vasquez, supra, 129 N.J. at 197. To foster that policy, the Legislature included in the CDRA mandatory periods of parole ineligibility for various crimes. See, e.g., N.J.S.A. 2C:35-3 (providing twenty-five year parole bar for leaders of narcotics trafficking network); N.J.S.A. 2C:35-6 (ordering minimum five- year parole bar for person convicted of employing juveniles in drug distribution scheme); N.J.S.A. 2C:35-7 (including strict parole bar for school zone offenses).

Despite the non-discretionary nature of N.J.S.A. 2C:35-7, that section, like other mandatory parole bar provisions in the CDRA, contemplates exceptions to its rule as provided by N.J.S.A. 2C:35-12 ("Section 12"). Section 12 allows a prosecutor to waive the period of parole ineligibility imposed under Section 7 as part of a plea or post-conviction agreement with a defendant. Because mandatory sentences usually do not permit judicial or prosecutorial discretion, the unique Section 7 and Section 12 sentencing scheme has been characterized as "a hybrid, combining mandatory and discretionary features and delegating sentencing authority to both the courts and the prosecutors." Vasquez, supra, 129 N.J. at 199.

The primary purpose of the Section 12 waiver provision is to provide an incentive for defendants, especially lower and middle level drug offenders, to cooperate with law enforcement agencies in the war against drugs. State v. Bridges, 131 N.J. 402, 408-09 (1993); Vasquez, supra, 129 N.J. at 204; Assembly Judiciary Committee, Commentary to the Comprehensive Drug Reform Act, at 26 (Nov. 23, 1987) (explaining that "ne of the key objectives of this section and the act is to provide persons engaged in illicit drug activities with strong incentives to cooperate with law enforcement to overcome the perceived and substantial risks associated with turning State's evidence and exposing their superiors, suppliers and affiliates"). Another goal of N.J.S.A. 2C:35-12, as enunciated in the Department of Law and Public Safety's report on the CDRA, is to encourage plea bargaining so as not to plague the courts with too many defendants who, without any incentive to plead guilty, demand jury trials and thus overburden and backlog the system. Department of Law and Public Safety, Division of Criminal Justice, A Law Enforcement Response to Certain Criticisms of the Comprehensive Drug Reform Act, at 22-23, 25-26 (Sept. 17, 1990). That view of Section 12 is consistent with one of the Legislature's stated goals in enacting the CDRA, namely, the minimization of pretrial delay and the prompt disposition of criminal charges. N.J.S.A. 2C:35-1.1.

To achieve the Legislature's specific goal of encouraging cooperation and turning State's evidence and to prevent sentencing courts from undermining the effectiveness of prosecutors' strategies, N.J.S.A. 2C:35-12 requires the sentencing court to enforce all agreements reached by the prosecutor and a defendant under that section and prohibits the court from imposing a lesser term of imprisonment than that specified in the agreement. N.J.S.A. 2C:35-12; Bridges, supra, 131 N.J. at 410; State v. Stewart, 136 N.J. 174, 182 (1994). That shift in sentencing power from the judiciary to the prosecutor is uncommon. As stated by the Court in Vasquez, supra: The delegation of sentencing power to the prosecutor is itself exceptional. The delegation of sentencing power to modify statutory sentencing standards is highly unusual. The power in the prosecutor directly or indirectly to mandate a minimum prison term is extraordinary.

[129 N.J. at 204 (citations ...

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