State v. Martines

• Decision Date: 17 December 1991
• Citation: 252 N.J.Super. 404,599 A.2d 1289
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. George MARTINES, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 404

252 N.J.Super. 404

599 A.2d 1289

STATE of New Jersey, Plaintiff-Respondent, v. George MARTINES, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Nov. 19, 1991.

Decided Dec. 17, 1991.

J. Michael Blake, Asst. Deputy Public Defender, for defendant-appellant (Wilfredo Caraballo, Public Defender, attorney; J. Michael Blake on the brief and reply letter brief).

Robin A. Hamett, Asst. Prosecutor, for plaintiff-respondent (Edward F. Borden, Jr., Camden County Prosecutor, attorney; Frederick H. Martin, Asst. Prosecutor, of counsel and on the brief).

Before Judges PRESSLER, SHEBELL and SKILLMAN.

PER CURIAM.

Pursuant to N.J.S.A. 2C:35-12, defendant George Martines entered into a plea agreement with the State, agreeing to plead guilty to a third-degree charge of distribution of a controlled dangerous substance within 1,000 feet of a school in return for the prosecutor's undertaking to waive the three-year mandatory parole ineligibility term prescribed by N.J.S.A. 2C:35-7 and to recommend a four-year probationary term subject to a 364-day jail condition. The agreement further provided that if defendant, who had been released on his own recognizance, failed to appear at sentencing, the State would withdraw from its waiver stipulation and the mandatory minimum term would be imposed. Defendant did not appear but turned himself in two months after the scheduled sentencing date. He was sentenced to a four-year term with a three-year parole ineligibility period, and now appeals.

For the reasons stated by us in State v. Shaw, 253 N.J.Super. 187, 601 A.2d 709 (App.Div.1991), we conclude that defendant's appearance at sentencing was an improper condition of the prosecutorial agreement to waive the mandatory minimum sentence. We also agree with the holding in Shaw that defendant's non-appearance is an appropriate factor for the court to consider in determining whether to sentence in accordance with the waiver agreement or to reject the plea altogether. However, as in Shaw, our review of the record here satisfies us that the sentencing judge "automatically applied the non-appearance condition and sentenced defendant to the statutory mandatory term." Id. at 195, 601 A.2d at 713. Indeed, the judge stated that he found defendant's explanation of his non-appearance "sympathetic" if not "compelling," ¹ and that despite the non-appearance, he would be willing to sentence in accordance with the original waiver stipulation if the prosecutor were to so agree. The prosecutor, however, refused to do so.

In view of the foregoing, and considering further the judge's identification of deterrence as the only aggravating factor, defendant's prior criminal record of a single municipal court conviction, and the absence of any representation by the State that defendant's cooperation would be helpful to it in other prosecutions, we have opted, as in Shaw, to exercise our original jurisdiction in order to relieve defendant of the mandatory minimum term. ²

Because we have accorded defendant the relief sought by him on appeal, we need not address his contention that the sentencing discretion accorded the prosecutor by N.J.S.A. 2C:35-12 violates the separation of powers principles of the state constitution and due process provisions of both the state and federal constitutions by impermissibly encroaching upon the inherent sentencing power of the judiciary. We have, however, serious concerns about the constitutionality of section 12. See State v. Cengiz, 241 N.J.Super. 482, 488-498, 575 A.2d 504 (App.Div.1990). But see State v. Todd, 238 N.J.Super. 445, 570 A.2d 20 (App.Div.1990). We note the apparent anomalies of a scheme in which the judicial sentencing discretion may be subject to virtual prosecutorial dictation, in which the effective power of granting leniency is afforded to the prosecutor but withheld from the judge, and in which there...