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State v. Rosario

February 27, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENIGNO ROSARIO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-03-0607.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 25, 2006

Before Judge Stern, Collester and Messano.

Defendant appeals from an order of August 19, 2004 denying his motion "to enforce the plea agreement." Defendant argues that he "was denied his Fourteenth Amendment right to due process of law and his state constitutional right to fundamental fairness when the State refused to honor the terms of a bi-state plea offer after defendant had pled guilty in New York State pursuant to that agreement." As a result of the "non-enforcement" of the purported agreement, defendant went to trial in Bergen County, New Jersey, and was convicted of eleven counts of an indictment which included purposeful or knowing murder, two counts of kidnapping, and two counts of armed robbery.*fn1

Defendant contends "it was especially unfair that defendant was not represented by a New Jersey attorney when the prosecutor's office negotiated the plea with a New York lawyer unfamiliar with this [S]tate's sentencing laws," so that the negotiated disposition leading to his guilty plea in New York and his subsequent waiver of extradition and return to New Jersey should be enforced.

As already noted, after the pretrial denial in the Law Division of his motion to enforce the plea offer, defendant was tried by jury and convicted of eleven counts. He was sentenced to an aggregate of life imprisonment with a sixty year parole disqualifier to run consecutive to a New York sentence being served. We affirmed the convictions and sentence. Defendant's petition for certification was granted, and the matter was remanded to the Law Division for an evidentiary hearing on the enforcement claim. State v. Rosario, 167 N.J. 627 (2001).

On remand, the trial judge conducted an evidentiary hearing and found "no meeting of the minds" or enforceable agreement notwithstanding the prosecutor's letter of December 6, 1995 offering defendant concurrent sentences in exchange for a guilty plea to aggravated manslaughter and armed robbery. The letter also indicated that the State would seek an aggregate sentence of thirty years, with one-half of that period to be served before parole eligibility, but would ask that the sentence be made to run consecutively to the New York sentence.

I.

Defendant was one of the suspects in the kidnapping of Robert Hippman on August 4, 1994 and the kidnapping and murder of James Polites on August 5, 1994. Defendant was seventeen years old at the time. However, before charges were filed against defendant for these crimes, he was arrested and incarcerated for murder in New York.

While plea discussions were occurring in New York, his New York attorney, Stanley Birnbaum ("Birnbaum"), and Suffolk County District Attorney, Peter Timmons ("Timmons"), commenced discussions with the Bergen County Prosecutor's Office designed to dispose of all outstanding charges by virtue of a negotiated disposition in both states.

According to Birnbaum, who testified at the remand hearing ordered by the Supreme Court, he had two conversations with Bergen County Assistant Prosecutor Patricia Baglivi ("Baglivi") before defendant pled guilty in Suffolk County, New York, on September 27, 1995. Birnbaum testified that the first conversation took place on September 20, 1995, and involved a discussion of the charges pending against defendant in New Jersey. Birnbaum claimed that, during the second conversation on September 22, 1995, Baglivi detailed the plea offer that New Jersey would extend to defendant if he pled guilty to second degree murder in New York, which was the disposition sought by the District Attorney in New York. Birnbaum testified that he believed this offer, extended by Baglivi on September 22, 1995, was a "final offer," which led him to counsel defendant to enter his guilty plea in New York.

Birnbaum also claimed that District Attorney Timmons was aware of the plea offer made by Baglivi and that he "was told" that Timmons could speak on behalf of the Bergen County Prosecutor's office during the New York proceedings. Birnbaum testified that he believed that the offer was "effectuated" on September 27, 1995, when defendant pled guilty to second degree murder in New York.

Birnbaum further testified that he called Baglivi by phone on September 29, 1995 and December 5, 1995, following defendant's guilty plea in New York. According to Birnbaum, he explained to Baglivi that there was some confusion during the plea on September 27th over what sentence defendant would be receiving in New Jersey. Birnbaum testified that Baglivi had previously told him the sentence in New Jersey would be ten to thirty years, but that during the plea on September 27th, Timmons indicated that he believed the sentence was to be "seven to thirty" years. According to Birnbaum, he explained this discrepancy to Baglivi during their telephone conversation, and, as a result, Baglivi confirmed the final plea offer in a letter dated December 6, 1995.

Birnbaum also testified that, on November 28, 1995, he contacted a New Jersey official named Nick Bruno "regarding a '5-A application,'" for the purpose of having a New Jersey attorney assigned to defendant "so he could effectuate the terms that were worked out in our plea on September 27th, 1995." According to Birnbaum, during that conversation, he inquired as to whether "there was an expeditious way to bring [defendant] to New Jersey [but] was told that it would have to go through the system," where defendant would "have to be remanded . . . to the New York State Correctional Facility after sentence, brought upstate, lodged, and then transferred by writ." Birnbaum further claimed that he was told that defendant's New Jersey counsel would follow up on getting defendant returned to New Jersey for purposes of entering the plea. According to Birnbaum, defendant "was unequivocal that he intended to accept the plea in New Jersey."

Assistant Prosecutor Baglivi also testified at the remand hearing. While acknowledging that she did have conversations with Birnbaum, she had "no specific recollection of any conversation" other than the one on December 5, 1995. According to Baglivi, it was during this conversation that she and Birnbaum reached the agreement that was "formalized" in her letter which she sent to him the next day. The letter, dated December 6, 1995, was addressed to both Timmons and Birnbaum, and stated:

Per my conversation with Mr. Birnbaum on December 5, 1995, the State of New Jersey is willing to offer the defendant a plea to one count of aggravated manslaughter for the Edgewater homicide, and one count of armed robbery for the Hackensack incident, both counts to run concurrent to each other. This plea would be contingent upon a plea to felony murder in New York.

The sentencing range for aggravated manslaughter is 10 to 30 years and for armed robbery, 10 to 20 years. The Court is free to impose any sentence within that range and may order that one-third to one-half of any sentence imposed be served before being eligible for parole. The Court can order that the sentence be either consecutive or concurrent to the sentence in New York.

Assuming defendant agrees to this negotiated plea, the State would seek the 30 year sentence and ask the Court to impose one-half without parole. Additionally, the State will ask the Court to run the sentence consecutive to the New York sentence.

If defendant wishes a trial in New Jersey and were convicted of either murder or felony murder, the minimum sentence is 30 years without parole.

If you have any questions, please feel free to contact me.

However, according to Baglivi, despite their conversation of December 5, Birnbaum never informed her that defendant had already pled guilty on September 27, 1995. Baglivi recalled speaking to Birnbaum once again after the conversation in December 1995, but claimed she did not learn of defendant's guilty plea until April 1996, when one of her colleagues brought it to her attention, incident to efforts to return defendant to New Jersey. Baglivi further testified that she would not have extended the plea offer to defendant if she knew that defendant had already pled guilty in New York, because the objective of her offer was to induce a plea in both states. Baglivi also stated that she considered Birnbaum's non-response to her December 6, 1995 letter to be a rejection of the plea offer.

Baglivi further testified that on April 2, 1996, the prosecutor's office began proceedings to bring defendant back to New Jersey under the Interstate Agreement on Detainers ("IAD"). According to Baglivi, defendant would not come to New Jersey "willingly," and the prosecutor abandoned efforts to return defendant under the IAD, "because the defendant was fighting us."*fn2 As a result, Baglivi stated that she had to move forward with a governor's warrant. The governor's warrant was not presented to Governor Whitman until December 15, 1997.*fn3

However, on January 13, 1998, Rosario signed a "Waiver of Extradition," which stated that he agreed to come back to New Jersey by "voluntarily waiv[ing his] rights." According to Baglivi, the "waiver wasn't signed until after [the prosecutor's office] got the governor's warrants." John Pieroni, Esq. ("Pieroni") was assigned as defendant's New Jersey counsel after defendant arrived in Bergen County.

On March 17, 1998, Pieroni sent a letter to Baglivi purporting "to accept [the] plea offer" previously extended by Baglivi in the December 6, 1995 letter, because the "condition" relating to the New York plea had been satisfied. However, according to Pieroni, Baglivi informed him in a follow-up conversation the next day that the plea previously offered to defendant in her letter of December 6, 1995, "had previously been rejected" by defendant, and Pieroni "could confirm this" with Birnbaum. Baglivi also told Pieroni that if defendant now wished to plead guilty, he would have to plead to either felony murder or murder stemming from the event involving Polites on August 5, 1994 and to armed robbery of Hippman on August 4, 1994.

In a second letter sent by Pieroni to Baglivi dated March 24, 1998, Pieroni stated that Birnbaum and defendant informed him that the plea offer embodied in the December 6, 1995 letter "was never rejected, and, in fact, was accepted." Nonetheless, Ms. Baglivi would not honor the ...


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