On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 00-03-0884, 00-07-1871.
Before Judges Stern, A. A. Rodríguez and Lefelt.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2004
Defendant pled guilty to second degree possession with intent to distribute, N.J.S.A. 2C:35-5b(2) (count three), and possession with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count four), as charged in indictment 00-07-1871. He simultaneously pled guilty to a count charging possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7, as alleged in a second indictment (00-03-0884). The State recommended a seven-year sentence with a forty-two month period of parole ineligibility, concurrent with a Union County sentence defendant was then serving and dismissal of the remaining counts. However, at the time of the plea, the defendant stated:
Your Honor, the plea that they [are] talking, the 7 with the 42, I told them, my attorney that I wouldn't mind taking the plea. But I'd like to deal with the plea that I paid Mr. Paul Bergrin. Because he had made me a promise a few days ago before I came for sentencing on Union County on the 17th of October. He told me he had everything running concurrent along with the 5 with a 30. And today is a different situation. And I don't really feel too happy with it. And, you know, what I am saying, if it is a better plea, I'd like to discuss it with my lawyer instead of with the assistant [an associate representing defendant at the time], if it is possible. Just so I can feel safe. I am a little nervous. I don't really feel comfortable.
Defense counsel thereupon asked to approach the bench, and a discussion was conducted off the record. Thereafter, the plea judge placed the following on the record:
In accordance with the recommendations as approved by the prosecutor's office upon the acceptance of pleas of guilty [to certain counts] the State would move to dismiss [the other counts] and recommend a custodial term of 7 years with 42 months to be served before being eligible for parole, concurrent with the sentence to be served in Union County. However, based on conversations between counsel the Court will consider a 5 year term with the 42 month parole ineligibility. Is this in accordance with your understanding?
The Assistant Prosecutor, defendant, and defense counsel agreed with the judge's statement, and the guilty plea was accepted.
In sentencing defendant, another judge found three aggravating and no mitigating factors, merged the school zone violation embodied in indictment 00-07-1871 with the second-degree possession with intent charge of that indictment, see State v. Dillihay, 127 N.J. 42, 44-45 (1991), and imposed concurrent five-year terms with forty-two month periods of parole ineligibility to run concurrent with the Union County sentence.
Defendant appeals the sentence, and argues:
BY IMPOSING A 42 MONTH SENTENCE OF PAROLE INELIGIBILITY ON A FIVE YEAR SENTENCE, THE COURT IMPOSED A LEGALLY EXCESSIVE SENTENCE LONGER THAN THAT WHICH IS PERMITTED BY THE CODE OF CRIMINAL JUSTICE. THIS COURT SHOULD REDUCE THE PERIOD OF PAROLE INELIGIBILITY TO THREE YEARS, THE MAXIMUM PERMITTED BY STATUTE.
The State argues that defendant"invited" the error and"should be bound to his negotiated bargain," and that, in any event, the"extremely lenient sentence" should not be reduced.
Except as provided in N.J.S.A. 2C:35-12, a"minimum term" must be imposed for a"school zone" violation, pursuant to N.J.S.A. 2C:35-7, of no less than one-third and no more than one-half of the specific term, or three years (one year when the offense involves less than one ounce of marijuana),"whichever is greater,""during which the defendant shall be ineligible for parole." See also N.J.S.A. 2C:43-6b. Thus, a five year ...