State v. Gerns

• Decision Date: 09 July 1996
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Charles E. GERNS, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 216

145 N.J. 216

678 A.2d 634

STATE of New Jersey, Plaintiff-Appellant, v. Charles E. GERNS, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 2, 1996.

Decided July 9, 1996.

James L. McConnell, Assistant Prosecutor, for appellant (Nicholas L. Bissell, Jr., Somerset County Prosecutor, attorney).

Susan C. Green, Assistant Deputy Public Defender, for respondent (Susan L. Reisner, Public Defender, attorney).

Richard W. Berg, Deputy Attorney General, for amicus curiae, Attorney General of New Jersey (Deborah T. Poritz, Attorney General, attorney).

The opinion of the Court was delivered by

COLEMAN, J.

The primary issue in this appeal is whether a school-zone drug offender who signs a plea agreement that calls for "cooperation" in State drug investigations and prosecutions in exchange for a favorable recommendation at sentencing satisfies the plea agreement by good faith efforts that produce nothing of value to the State. We hold that under the Attorney General Guidelines promulgated pursuant to State v. Vasquez, 129 N.J. 189, 609 A.2d 29 (1992), a defendant's cooperation agreement can be satisfied only if his or her efforts are of substantial value to the State.

I

During an undercover narcotics investigation conducted by the Narcotics Strike Force of the Somerset County Prosecutor's Office, defendant, Charles Gerns, sold marijuana to an undercover detective. The sales occurred on September 12, 1993, when defendant sold one quarter of an ounce and on December 28, 1993, when he sold an additional one eighth of an ounce. Both sales occurred from his home which was located in a school zone. When defendant was arrested at his home on January 14, 1994, for those two sales, a consent search of his bedroom uncovered eight additional ounces of marijuana, $1660 in cash, and drug paraphernalia, such as plastic baggies and a scale.

Defendant was indicted on two counts of fourth-degree distribution of marijuana, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12); third-degree distribution of marijuana within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7; third-degree possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11); and third-degree possession of marijuana with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7.

As part of a plea agreement, defendant executed a "Confidential Informer Contract of Cooperation" on June 27, 1994. That contract provided, among other things, that:

The Somerset County Prosecutor's Office has agreed to evaluate the information supplied [by defendant]. Any recommendation will be based upon the nature and extent of the informer's cooperation as determined solely by the Somerset County Prosecutor.... The Somerset County Prosecutor's Office will be the sole determinator [sic] as to any violation(s)/interpretation of this contract.

...

I understand that I will be required to maintain close communications with the Somerset County Narcotic Task Force. Specifically, I must make contact, either in person or by telephone, with Officer Colucci or Officer Buckman at this department at least once every other day until I am informed by a law enforcement officer that such communication is no longer required.

On July 5, 1994, defendant pled guilty to the indictment. In exchange for the guilty pleas, the State promised to recommend a term of four years imprisonment with a three-year parole disqualifier. The State also agreed to make known to the sentencing judge the extent of any cooperative efforts made by defendant on behalf of the State. Defendant informed the court during the plea hearing that he understood the plea agreement and that he was satisfied with his attorney. It was the clear understanding of the State and defendant that his cooperation could result in an unspecified shorter sentence, both in the base sentence and the term of parole disqualification, on application of the prosecutor pursuant to N.J.S.A. 2C:35-12.

Approximately three days prior to the September 2, 1994, sentencing hearing, the prosecutor sent a letter to the sentencing court, without sending a copy to defendant's attorney, informing the court that defendant had not cooperated with the State "in any way, shape or form." At the court's direction, a copy of the letter was given to defense counsel in open court. Defense counsel rejected an offer by the court to permit counsel to consult with defendant before proceeding further and stated:

We're aware of the situation here, Judge. Just with regard to the letter here, I was present with Mr. Gerns when he spoke with the detective, provided various information. Unfortunately because of his arrest and his knowledge of the people that he knew that were involved in things that he was trying to assist them, he was unsuccessful in getting anyone to deal with him.

I don't think it was a purposeful failure to cooperate. I think he's just unable to cooperate because of circumstances. I don't think it should be considered negatively, or unfortunately, positively in regard to his sentencing.

Because the prosecutor concluded that defendant had not cooperated, the prosecutor withheld any recommendation that defendant's term of parole ineligibility be less than the three years specified in N.J.S.A. 2C:35-7. After merging all but two offenses, the court sentenced defendant to concurrent custodial terms of four years with a three-year period of parole ineligibility.

Defendant appealed, contending that the prosecutor did not follow the guidelines adopted by the Attorney General in response to State v. Vasquez, supra, 129 N.J. at 195-97, 609 A.2d 29, to implement N.J.S.A. 2C:35-12. The Appellate Division in an unpublished opinion held that the prosecutor exercised his discretion in an arbitrary and capricious manner in not waiving the three-year term of parole ineligibility. The case was remanded for resentencing as if the prosecutor had waived the entire mandatory term. We granted the State's petition for certification. 142 N.J. 453, 663 A.2d 1360 (1995).

II

Central to the disposition of this appeal are N.J.S.A. 2C:35-7 and -12 and guidelines promulgated to advise prosecutors in the exercise of their discretion in waiving parole disqualification in school-zone drug offenses.

The Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 to 36-9 (Drug Act), was promulgated as an integral part of the Legislature's effort to reevaluate the State's criminal laws in order to "ensure a uniform, consistent and predictable system for the sentencing of convicted offenders." N.J.S.A. 2C:35-1.1a. That goal was deemed to be "an essential prerequisite to any rational deterrent scheme designed ultimately to reduce the incidence of crime." Ibid. The Legislature also made clear its intention to afford "special protection to children from the perils of drug trafficking ... [by providing] especially stern punishment for those drug offenders who operate on or near schools and school buses...." N.J.S.A. 2C:35-1.1c; State v. Vasquez, supra, 129 N.J. at 197, 609 A.2d 29; State v. Dillihay, 127 N.J. 42, 53, 601 A.2d 1149 (1992). The Legislature's firm stance against drug trafficking in school zones is expressed in N.J.S.A. 2C:35-7 that provides:

Any person who violates subsection a. of N.J.S.A. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance ... while on any school property ... or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S.A. 2C:35-12, be sentenced by the court to a term of imprisonment. Where the violation involves less than one ounce of marijuana, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or one year, whichever is greater, during which the defendant shall be ineligible for parole. In all other cases, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole.

[ N.J.S.A. 2C:35-7

(emphasis added).]

The Legislature recognized, however, that drug distribution occurs through a complex chain of distributors and that it is necessary to encourage offenders to cooperate with law enforcement efforts to apprehend well-insulated drug traffickers. State v. Bridges, 131 N.J. 402, 408, 621 A.2d 1 (1993); State v. Shaw, 131 N.J. 1, 11, 618 A.2d 294 (1993); State v. Vasquez, supra, 129 N.J. at 204, 609 A.2d 29 (citing Cannel, New Jersey Criminal Code Annotated, 1987 Legislative Commentary on N.J.S.A. 2C:35-12 (1992)). The Legislature, therefore, contemporaneously enacted N.J.S.A. 2C:35-12 to permit the prosecutor to recommend relaxation of the mandatory term of parole ineligibility required by N.J.S.A. 2C:35-7 in cases in which a defendant has entered into an agreement with the State. The agreement may take the form of a negotiated plea agreement or a post-verdict agreement. N.J.S.A. 2C:35-12. Either way, the agreement may provide for a lesser base term or a lesser term of parole ineligibility, or both, as well as a specified fine or other disposition. Ibid. Consequently, section 12 transforms section 7's mandatory sentencing provision into "a hybrid, combining mandatory and discretionary features and delegating sentencing authority to both the courts and the prosecutors." State v. Vasquez, supra, 129 N.J. at 199, 609 A.2d 29.

Section 12 permits a waiver of the section 7 mandatory sentencing provision only at the option of the prosecutor. The statutory scheme manifested in sections 7 and 12 removes most of a sentencing court's discretionary power. See N.J.S.A. 2C:35-12; State v. Bridges, supra, 131...