Argued February 2, 1998 Before Judges Petrella and Eichen. On appeal from the Superior Court of New Jersey, Law Division, Essex County.
The opinion of the court was delivered by: The opinion of the court was delivered by Eichen, J.A.D.
 This appeal requires us to decide whether defendant Pedro Correa was denied his Sixth Amendment right to compulsory process as the result of a plea agreement between the prosecutor and co-defendant Angel Colon. As part of the plea agreement, Colon agreed not to testify at Correa's murder trial in return for the State's promise not to seek an extended fifty-year term sentence. Correa was the driver of a vehicle used by Colon to escape apprehension after Colon shot and killed Hector Cruz, wounded Cruz's brother, and shot at an off-duty police officer in Newark on October 11, 1995.
Correa, Colon and co-defendant Alfredo Cruz were indicted for murder, N.J.S.A. 2C:11-3a (count one), second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two), third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three), second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four), and third degree receiving stolen property, N.J.S.A. 2C:20-7 (count five). *fn1
On December 9, 1996, Correa filed a severance motion seeking to bifurcate his trial from Colon's trial. In support of the motion, Correa's attorney certified that he understood that Colon "was able to testify that Correa had no prior knowledge that Colon had possessed a firearm or that a shooting incident would occur." When the Judge asked Colon whether he would give favorable testimony for Correa, Colon requested a day to decide, stating that he could not say "right now." *fn2 The Judge denied Correa's severance motion, concluding that Colon intended to exercise his Fifth Amendment right and would not testify at trial.
On December 10, 1996, Colon pleaded guilty to all of the charges in the indictment. Unbeknownst to Correa's attorney, Colon had agreed not to testify for Correa in exchange for the prosecutor's agreement not to request an extended fifty-year term sentence. Nothing was stated on the record about the "no testimony" restriction imposed as a condition of the plea offer, nor was the restriction disclosed in the plea form. *fn3 After Colon gave a factual basis for the plea, the court asked Correa's attorney whether he intended to call Colon "as a potential witness possibly on behalf of his client" and asked Colon's attorney whether Colon's position had changed now that he had pleaded guilty. Without revealing that Colon had made a deal with the prosecutor not to testify, Colon's attorney stated that they " not honor a subpoena" because Colon was exercising his Fifth Amendment right not to testify. The attorney stated:
It is our intention and client's intention not to testify for either the State or ... the defense in this particular case. Our position is, he has not been sentenced. He has an absolute right to remain silent. We put the State on notice, and now on the record we are putting everyone on notice he is not going to be a witness for or against anyone in this particular case.
The next day, immediately prior to trial, Correa's attorney learned of the "no testimony" restriction and placed on the record his strong objections to the manner in which the State and co-counsel had proceeded with respect to the plea. The prosecutor responded that she had not "extracted" the promise from Colon and that she had merely indicated her intention to request an extended term, implying that Correa had offered not to testify if the prosecutor would agree to waive her right to ask for an extended term sentence. The prosecutor also contended that she believed her actions were laudatory because she had saved Colon from perjuring himself in light of the strong evidence of Correa's guilt.
Despite the protestations of Correa's attorney and Colon's equivocal statements concerning whether he would testify, the court rejected defendant's arguments and proceeded to trial. On December 16, 1996, Correa was convicted of aggravated manslaughter but was acquitted of murder and aggravated assault. The jury was unable to reach a verdict on the weapons charges. *fn4
On December 20, 1996, Correa unsuccessfully argued a motion for bail pending sentence and appeal. Subsequently, he filed a motion for a judgment of acquittal or for a new trial. In each of these motions, Correa continued to raise the constitutional argument that the impropriety of the "no testimony" restriction in the plea agreement was a violation of his Sixth Amendment right to compulsory process. During the hearing on the motion for a new trial, the court acknowledged that it had received a letter allegedly from Colon dated December 20, 1996, indicating that he would have testified on defendant's behalf if the State had not threatened him with an extended sentence. Specifically, the letter stated:
I would have testified in the trial of Pedro Correa. I did not testify because the State Prosecutor told me that if I testified the State would have sentenced me to more time. The State was notified that my testimony would have helped Pedro Correa.
The Judge rejected defendant's motion for a new trial. In so doing, the court distinguished State v. Fort, 101 N.J. 123 (1985), observing that the instant case was different because in Fort the State required that the co-defendant agree not to testify in return for the plea itself, whereas here, the State merely agreed not to seek an extended term if the co-defendant agreed not to testify. Therefore, the court reasoned that the "no testimony" restriction was not an integral part of the plea agreement as it was in Fort. The court also indicated that although the prosecutor may recommend an appropriate sentence, sentencing is completely within the court's discretion and that it might not have imposed an extended sentence.
We disagree that Fort did not prohibit this plea arrangement and reverse. In Fort, the Supreme Court clearly stated that:
Once the State extracts a promise not to testify as a condition of a plea agreement, it is practically impossible to determine whether a witness refused to testify because of the privilege against self-incrimination or because of a desire to perform the promise. To secure the benefit of the agreement, a defendant must meticulously satisfy the conditions of the plea. Consequently, a defendant who announces the intention "to take the fifth," as Brown declared in this case, may be effectuating or masking compliance with the "no testimony" condition. Stated otherwise, one method of preserving rights under the plea agreement is to assert the privilege ...