On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-08-1618.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Skillman and Roe.
Defendant was indicted for six armed robberies and related offenses committed in Atlantic City between April 7 and 24, 2005. Defendant was also charged in a separate indictment with two armed robberies and related offenses committed in Egg Harbor on April 24 and 25, 2005. After the trial court rejected plea bargains that would have encompassed the charges in both indictments, defendant was tried before a jury on the indictment arising out of the Egg Harbor robberies and found guilty of all but one of the charges. The trial court sentenced defendant to consecutive sixteen-year terms of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the two armed robberies, committed in violation of N.J.S.A. 2C:15-1. In addition, the court sentenced defendant to consecutive five-year terms of imprisonment for aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(2), and two counts of possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b). For the other offenses defendant was found to have committed, the trial court either imposed concurrent terms or merged the convictions. Thus, defendant's aggregate term is forty-seven years imprisonment, with thirty-two of those years subject to NERA parole ineligibility.
Defendant subsequently entered into a plea bargain with respect to the indictment for the six armed robberies committed in Atlantic City, under which he pled guilty to one robbery, for which he was sentenced to a six-year term of imprisonment, subject to NERA ineligibility, to be served consecutively to his sentence for the Egg Harbor robberies, and the charges based on the other five robberies were dismissed.
The first of the robberies the jury found defendant to have committed occurred around 2 a.m. on April 24, 2005 in the Egg Harbor Econo Lodge. The front desk clerk, Richard Bennett, was in the back office when defendant and his confederate, Basim Reid, entered the lobby. After he saw defendant enter the hotel by viewing the monitor of the motel security camera, Reid came out front and saw defendant standing behind the counter with a gun. Defendant ordered Bennett to his knees and began rifling through the cabinets and cash register. After finding little money in the cash register, defendant became very aggravated and demanded the money from Bennett's wallet. Thereafter, defendant took the money from Bennett's wallet and hit Bennett on the side of his head with the gun he was wielding, causing Bennett to lose a tooth. Defendant and Reid fled with a total of approximately $2100.
The second of the robberies the jury found defendant to have committed occurred around 3:30 a.m. on April 25, 2005 in the Egg Harbor Ramada Limited. Defendant first entered the motel at approximately 2:30 a.m. with a "large wad" of cash in his hands, and asked about room rates. However, when the front desk clerk, Andrew King, told defendant he had to produce identification, defendant declined to rent a room. Around an hour later, defendant returned to the motel and pointed a gun at King as he ran towards the front desk. King fell on the floor for his own protection, and defendant then jumped over the desk, after which Reid joined him. Defendant demanded to know the location of the money on the premises, and King told him. Defendant and Reid removed about $380 from a cash drawer and safe, and fled.
At trial, Bennett identified defendant as one of the persons who robbed him, and although King was unable to identify defendant as one of the perpetrators of the Ramada robbery, he did identify him as the person who had entered the motel at 2:30 a.m. and asked to rent a room. In addition, the State introduced videotapes of both robberies recorded by security cameras and defendant's tape-recorded confession to commission of the robberies. The State also presented the testimony of two fingerprint experts who concluded that latent fingerprints found behind the counter of the Econo Lodge were defendant's fingerprints.
Defendant took the stand and denied he had committed either robbery. Defendant also testified that his confession to the robberies was the product of police coercion.
Defendant also presented the testimony of his sister and two brothers that defendant was with them in Atlantic City from 9:30 p.m. until around 11:30 p.m. on the nights of both Egg Harbor robberies. However, these witnesses could not vouch for defendant's whereabouts around the time of the robberies.
On appeal, defendant argues under Point I of his brief that the trial court's rejection of plea bargains offered by the State was arbitrary and capricious, thereby denying defendant his constitutional right to due process.
If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea.
In determining whether to reject a plea bargain under Rule 3:9-3(e), a trial court has "wide discretion." State v. Madan, 366 N.J. Super. 98, 108 (App. Div. 2004). "One reason for permitting wide discretion in the sentencing judge is that at the time a plea is entered the judge ordinarily has before him only the offense. A fuller picture of the offender does not emerge until sentencing, when the judge has had the benefit of a defendant's presentence report." State v. Brockington, 140 N.J. Super. 422, 427 (App. Div.), certif. denied, 71 N.J. 345, cert. denied, 429 U.S. 940, 97 S. Ct. 357, 50 L. Ed. 2d 310 (1976). However, in determining whether to accept a plea bargain, a trial court is not limited to consideration of information in the presentence report that is contrary to representations made during the plea hearing. State v. Daniels, 276 N.J. Super. 483, 487 (App. Div. 1994), certif. denied, 139 N.J. 443 (1995); State v. Salentre, 275 N.J. Super. 410, 418-20 (App. Div.), certif. denied, 138 N.J. 269 (1994). Rather, the court may consider all relevant circumstances in determining whether "the interests of justice would be . . . served by effectuating the agreement reached by the prosecutor and defense counsel." R. 3:9-3(e).
In this case, the trial court tentatively indicated on May 22, 2006 that it would accept a plea bargain under which defendant would plead guilty to the two Egg Harbor and six Atlantic City robberies and the State would recommend a maximum aggregate sentence of sixteen years imprisonment, subject to NERA. At the plea hearing, defendant provided a factual basis for his pleas to each of the eight robberies. The factual basis that defendant provided for one of the robberies only established commission of a second-degree robbery because defendant denied using or threatening the use of a gun in that robbery. However, in view of the fact that defendant had provided an adequate basis for his pleas to seven other armed robberies, the prosecutor indicated that the indictment could be amended to reflect that the eighth robbery was a second-degree offense. The trial court then tentatively accepted the plea ...