On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-10-415.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued August 31, 2010
Before Judges Simonelli and Waugh.
Defendant Michael H. Boesch pled guilty to first-degree possession of marijuana with intent to manufacture, involving fifty or more plants, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(10)(a); and second-degree possession of a weapon in the course of committing a drug offense, contrary to N.J.S.A. 2C:39- 4.1(a). Pursuant to a plea bargain governed by the Attorney General's Brimage Guidelines,*fn1 he was sentenced to twelve years in prison with a forty-five month period of parole ineligibility on the first-degree offense, and a consecutive five years flat on the second-degree offense. The remaining three counts were dismissed as part of the plea agreement.*fn2
The indictment arose out of Boesch's arrest on July 9, 2007, after aerial and ground surveillance disclosed that he was growing marijuana on his property in Warren County. At the time of the arrest, the police found approximately 250 marijuana plants growing on Boesch's property. During the search of his home after his arrest, Boesch assisted the police in locating a shotgun, which he asserted he had used in the past for hunting.
At the time of his plea, July 10, 2008, Boesch also entered into a cooperation agreement with the State. The cooperation agreement contained the following provisions:
3. The defendant has agreed to cooperate with the State. The defendant understands that cooperation does not merely mean good faith effort but rather includes and is not limited to making telephone calls, introducing undercover police officers, and controlled buys of dangerous substances while wearing an audio intelligence recording device. The defendant agrees the complete performance of the conditions of this agreement is the only acceptable conclusion contemplated by this agreement. Partial performances and good faith efforts will not be accepted and will not be considered as fulfillment of the terms of this agreement. The State's evaluation of the defendant's performance is final. Partial credit for any work completed by the defendant is entirely within the State's sole discretion. Good faith efforts by the defendant are irrelevant unless the State chooses to allow credit thereof.
4. If the defendant's cooperation does not produce results of substantial value to law enforcement, as determined by the Warren County Prosecutor's Office, the defendant will be sentenced in accordance with paragraph 2 of this agreement.
5. The State agrees that, in the event that the defendant assists in an investigation that results in a first degree arrest, the State will recommend that the defendant receive a 12 month credit on the mandatory minimum of 45 months that the defendant is exposed to on a Brimage plea offer.
Pursuant to the agreement, sentencing was to be deferred for sixty days.
The sentencing took place on November 7, 2008. Although he had received more than the required sixty-day period between the plea and sentencing, Boesch sought an adjournment of the sentencing to allow further time for cooperation. Despite the requirements of Rule 1:2-1, the adjournment application took place during an off-the-record conference in the judge's chambers. The State opposed the adjournment and the judge denied the request.
Defense counsel acknowledged that the sentencing judge's hands were somewhat tied, if not completely and only tied with regard to the forty-five-month stip that you have to give him.
And that's what I have to say about his sentence. I ask, Judge, most respectfully, that he be allowed to spend some . . . more time with his family. I know he's had a lot of time. He hasn't gotten in any trouble while he's been out. So he can spend, . . . at ...