State v. Jimenez

• Decision Date: 29 July 1993
• Citation: 630 A.2d 348,266 N.J.Super. 560
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Gerardo JIMENEZ, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 560

266 N.J.Super. 560

630 A.2d 348

STATE of New Jersey, Plaintiff-Appellant, v. Gerardo JIMENEZ, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Submitted June 15, 1993.

Decided July 29, 1993.

Robert J. Del Tufo, Atty. Gen., for appellant (Arthur S. Safir, Deputy Atty. Gen., of counsel and on the brief).

Zulima V. Farber, Public Defender, for respondent (Susan Green, Asst. Deputy Public Defender, of counsel and on the brief).

Before Judges MICHELS, BILDER and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

The State appeals from the Law Division's order granting defendant's petition for post-conviction relief and vacating the remainder of his parole ineligibility term imposed under N.J.S.A. 2C:35-7. The Law Division held that the prosecutor abused his discretion by failing to engage in post-conviction negotiations with defendant under N.J.S.A. 2C:35-12 and by refusing to waive the mandatory period of parole ineligibility. The Law Division also held that the guidelines adopted by the Attorney General and the county prosecutors in response to the Supreme Court's opinion in State v. Vasquez, 129 N.J. 189, 609 A.2d 29 (1992) and our decision in State v. Gonzalez, 254 N.J.Super. 300, 603 A.2d 516 (App.Div.1992) are arbitrary and capricious because they permit a waiver of a mandatory sentence following a conviction only if the defendant cooperates with law enforcement officials in ferreting out criminal conduct. We are thoroughly convinced that the prosecutors' guidelines, both facially and as applied here, comport with constitutional requirements and that defendant failed to satisfy the heavy burden of proving the State's failure to offer leniency constituted an arbitrary and capricious exercise of discretion. ¹

I.

Tried by a jury, defendant was convicted of possession of cocaine with intent to distribute ( N.J.S.A. 2C:35-5a(1) and 5b(3)), possession of the same drug with intent to distribute near a school zone ( N.J.S.A. 2C:35-7), distribution of the same drug ( N.J.S.A. 2C:35-5a(1) and 5b(3)), distribution of the same drug near a school zone ( N.J.S.A. 2C:35-7), and possession of the same drug ( N.J.S.A. 2C:35-10a(1)). After merging the conviction for simple possession, the trial judge imposed a concurrent four year sentence on each count. On the convictions for possession of cocaine with intent to distribute and distribution of the same drug near a school zone, separate concurrent three year parole disqualifiers were imposed pursuant to N.J.S.A. 2C:35-7. In an unreported opinion, we affirmed defendant's convictions, but merged the separate counts. The Supreme Court subsequently denied certification.

Defendant then filed a petition for post-conviction relief in which he contended, among other things, that the prosecutor improperly failed to engage in post-conviction negotiations and did not state his reasons for refusing to waive the mandatory period of parole ineligibility required by N.J.S.A. 2C:35-7. ² It was also argued that the prosecutors' guidelines were not existent at the time of the original sentencing hearing and that their later promulgation violated the ex post facto prohibition. In response, the prosecutor argued that it was not incumbent upon him to engage in post-verdict negotiations or to waive the mandatory sentence. Pointing to defendant's undisputed eleven year history of drug abuse and his failure at any time to cooperate with law enforcement authorities, the prosecutor asserted that his refusal to waive the mandatory term required by N.J.S.A. 2C:35-7 did not constitute an arbitrary and capricious exercise of discretion.

The Law Division granted defendant's petition on the ground that the prosecutor's refusal to grant lenity under N.J.S.A. 2C:35-12 was unfair and improper. In a letter opinion issued in response to the State's motion for reconsideration, the Law Division reaffirmed its prior decision, finding that the prosecutor's refusal to consider anything other than an offer to cooperate once the defendant was convicted by a jury constituted arbitrary and capricious conduct. The Law Division observed that prosecutorial guidelines permitted the State to consider a broad array of mitigating factors in deciding whether to enter a plea agreement, but focused too narrowly on the defendant's willingness to cooperate following a conviction. The court suggested that the defendant's amenability to treatment and rehabilitation should generally be considered by a prosecutor in deciding whether to grant lenity. Citing defendant's drug addiction, lack of a criminal record, and family background, the court vacated the remainder of his parole ineligibility term.

It is against this backdrop that we consider the issues presented.

II.

We commence our analysis with a brief description of the Comprehensive Drug Reform Act of 1986 ( N.J.S.A. 2C:35-1 through -23) and recent judicial decisions construing its provisions. The articulated objectives of the Act are set forth in the Legislature's declaration of policy and findings, and include the "imposition of a uniform, consistent and predictable sentence for a given offense ... [as] an essential prerequisite to [a] rational deterrent scheme designed ultimately to reduce the incidence of crime." N.J.S.A. 2C:35-1.1a. The Legislature also declared it to be the policy of this state 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...." N.J.S.A. 2C:35-1.1c. To implement these policies, the Legislature enacted N.J.S.A. 2C:35-7, which was designed to "create[ ] a drug 'safety zone' around schoolyards." 1987 Legislative Assembly Judiciary Committee Commentary to the Comprehensive Drug Reform Act (L.1987, c. 101, § 1), reprinted in Cannel, New Jersey Criminal Code Annotated, comment 1 to N.J.S.A. 2C:35-7 (1992-93). That statute prohibits the possession of a controlled dangerous substance with intent to distribute or the distribution of the same drug within 1,000 feet of school property used for school purposes. N.J.S.A. 2C:35-7; see State v. Thomas, 132 N.J. 247, 252, 624 A.2d 975 (1993). With minor exceptions inapplicable here, any person who violates this section must be sentenced to a term of imprisonment and may not be paroled for three years. N.J.S.A. 2C:35-7.

While adopting these mandatory penalties, the Legislature clearly wished to accord the State some flexibility, and thus allowed for plea bargaining and post-verdict negotiations. See Cannel, New Jersey Criminal Code Annotated, comment to N.J.S.A. 2C:35-12 (1992-93). Although N.J.S.A. 2C:35-7 provides for a mandatory sentence and period of parole ineligibility for distribution-type offenses that occur near school property, N.J.S.A. 2C:35-12 permits a sentencing judge to relax that requirement where there has been a plea agreement or a post-verdict agreement between the prosecutor and the defendant. Significantly, the primary objective of the Legislature in enacting this section was to provide an incentive to offenders to assist law enforcement efforts in the war against illegal drugs. The Legislature's comments leave no room for doubt as to this point:

It is essential in drug cases that prosecutors be able to secure the cooperation (in the form of confidential information and testimony) of certain lower and middle level drug offenders to be able to identify, apprehend, prosecute and convict the more culpable, higher echelon members in a given drug distribution network. For this reason, one of the key objectives of this section and of the act is to provide persons engaged in illicit drug activities with strong incentives to cooperate with law enforcement to overcome the perceived and substantial risks associated with turning State's evidence and exposing their superiors, suppliers and affiliates.

* * * * * *

This section expressly recognizes that a plea agreement is essentially a form of contract between the State and a defendant which is ratified and enforced by the courts. Under current law, it is established that the court may not impose a sentence greater than that contemplated by a plea agreement, since this would be deemed to violate the defendant's understanding of his agreement to enter a guilty plea. Courts are free under current law, however, to impose a lesser sentence than that contemplated by a negotiated agreement, and may even elect to suspend the imposition of sentence altogether. This section expressly precludes a court from imposing a lesser prison term or fine than that expressly mandated by a plea agreement.

* * * * * *

A post-conviction agreement is also authorized by this section, which may be consummated at any time after a guilty verdict, including after the imposition of sentence. An offender who is sentenced to prison, for example, could belatedly decide to cooperate with law enforcement. In such event, where the prosecutor consents and joins in the application, and provided that the court does not find that the interests of justice would not be served by effectuating the terms of the post-conviction agreement, the defendant would be entitled to be resentenced by the court to any term which could originally have been imposed pursuant to a negotiated plea agreement. [1987 Legislative Assembly Judiciary Committee Commentary to the Comprehensive Drug Reform Act (L.1987, c. 106, § 1), reprinted in, Cannel, New Jersey Criminal Code Annotated, comment to N.J.S.A. 2C:35-12 (1992-93) ].

Thus, while the Legislature tempered its professed goal of strict punishment and sentence uniformity by authorizing waiver of the mandatory minimum prison term in N.J.S.A. 2C:35-12, the flexibility so accorded was designed to aid law enforcement efforts to penetrate the drug-trafficking hierarchy by securing cooperation of lower and middle level drug offenders. See State v. Bridges, 131 N.J. 402, 408, 621 A.2d 1...