On appeal from the Superior Court of New Jersey, Law Division, Union County.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, Yannotti and LeWinn.
Following the entry of guilty pleas to two offenses, defendant was sentenced to an aggregate sentence of twenty-two years of imprisonment, with a ten-year period of parole ineligibility. Defendant appeals from the denial of his motion to withdraw his plea or, alternatively, to enforce the terms of the plea agreement. For the reasons that follow, we reverse and remand for reconsideration.
Defendant was charged in twelve of the nineteen counts in a Union County indictment. Defendant was charged with conspiracy to distribute heroin and/or cocaine, in a quantity of five ounces or more, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count one); possession of cocaine, N.J.S.A. 2C:35-10a(1) (count six); possession of cocaine, in a quantity of one-half ounce or more, with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count seven); possession of cocaine with intent to distribute on or within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count eight); unlawful possession of a .357 magnum handgun without a permit, N.J.S.A. 2C:39-5b (count nine); possession of a firearm during the commission of a crime involving the possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:39-4.1a (count ten); receiving stolen property, N.J.S.A. 2C:20-7 (count eleven); distribution of cocaine, in a quantity of five ounces or more, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count twelve); possession of cocaine, N.J.S.A. 2C:35-10a(1) (count thirteen); possession of cocaine, in a quantity of five ounces or more, with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count fourteen); possession of cocaine with intent to distribute on or within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count fifteen); and possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count sixteen).
Defendant was also charged in another Union County indictment with possession of a Smith and Wesson handgun and/or Rossi handgun by a person previously convicted of a drug offense, N.J.S.A. 2C:39-7b (count one); and possession of a .357 magnum handgun by a person previously convicted of a drug offense, N.J.S.A. 2C:39-7b (count two).
Defendant pled guilty to possession of five ounces or more of cocaine with intent to distribute, as charged in count fourteen of the first indictment; and possession of a weapon by a person not permitted to do so, as charged in count one of the second indictment. As part of the plea agreement, the State agreed to the dismissal of the remaining charges. The State also agreed to recommend the imposition of a twenty-year sentence, with an eight-year period of parole ineligibility on the drug conviction, and a ten-year sentence, with a five-year period of parole ineligibility on the weapons conviction.
On April 11, 2006, when the terms of the plea agreement were placed on the record, Scott Kraus (Kraus), the assistant prosecutor, added that:
[defendant] has come to the Prosecutor's Office and would like to cooperate in an investigation, which he tells the State that we would be able to seize between ten and [fifteen] kilograms of heroin, [and] that seizure will result in the [arrest] of at least one individual who is not a runner, not somebody just delivering.
If [defendant] makes good on that particular promise, I told [defendant] that I would be in a position to recommend to the Court that he be sentenced to a [fourteen]-year State prison term with a seven-year period of parole ineligibility, aggregate number.
After today I anticipate sitting down with [defendant and his attorney], and the detective and executing a formal agreement with him as we would do with anyone else in [defendant's] position in reference to cooperation.
The court asked defendant whether he understood those conditions. Defendant said that he did. Defendant provided a factual basis for his plea and the court found that the plea had been entered knowingly and voluntarily.
Thereafter, the State and defendant executed a written agreement, in which defendant agreed to cooperate with the Union County prosecutor's office. Paragraph 1 of the agreement requires defendant to "truthfully disclose all information" requested by the prosecutor's office. Defendant must make himself available "at all reasonable times" and he must contact the prosecutor's office "at least" three times a week. In addition, paragraph 2 of the agreement states that: cooperation does not merely mean good faith effort, but rather includes and is not limited to making telephone calls, introduction of undercover police officers, controlled buys of controlled dangerous substances or weapons, or engaging in otherwise illegal conduct under the immediate control and specific direction of a representative of the Union County Prosecutor's Office, as well as providing information concerning criminal activity.
Paragraph 9 of the agreement provides that, if defendant's cooperation results in "substantial value to law enforcement," the prosecutor will make a recommendation to the sentencing judge that defendant's base sentence fall within a range of twenty to thirty years, with a parole disqualifier of between seven and thirteen years. Moreover, paragraph 10 of the agreement states that, if defendant's cooperation does not produce results of "substantial value to law enforcement," as determined by the prosecutor's office, defendant is subject to being sentenced to the maximum sentence set forth in the plea agreement.
In addition, paragraph 11 of the agreement states that if defendant's cooperation "produces results that are not of substantial value, but nevertheless have some value to law enforcement," defendant "will be given partial credit for those results." In that event, defendant's sentence can fall within the range of twenty to thirty years, with a period of parole ineligibility of between seven and thirteen years, to the maximum sentence allowed by law.
Furthermore, paragraph 13 of the agreement provides that, in determining whether the results of defendant's cooperation produces "substantial value, some value, or no value at all," the prosecutor will consider "(a) the number and nature of arrests made as a result of [defendant's] cooperation, (b) the quantity and quality of evidence seized as a result of [his] cooperation, and (c) the value of any property seized and forfeited as a result of [his] cooperation."
The agreement further states that it "will be deemed null and void" in the event of a material breach by defendant, which includes, but is not limited to, defendant's "[f]ailure to maintain regular contact with" the prosecutor's office; defendant's "[f]ailure to make [himself] available at all reasonable times[;]" and his failure to "provide information" or "make controlled buys of contraband as directed."
In February 2007, defendant filed a motion to withdraw his plea. On February 28, 2007, the trial court conducted an evidentiary hearing on the motion.
Defendant testified that, initially, the State had decided to terminate his plea agreement because he had been a victim of a kidnapping and, in the prosecution of the persons allegedly responsible for that offense, the State would have to reveal that defendant was cooperating in a drug investigation. Defendant stated, however, that in October 2006, ...