*1 PLAINTIFF-APPELLANT, JERSEY, STATE OF NEW MARZOLF, JAMES DEFENDANT-RESPONDENT. February
Argued 1979. October 1978 Decided *3 Greco, argued Assistant Prosecutor Fitzgibbon Ms. Carole John Degnan, Attorney appellant (Mr. the cause for Coburn, Donald Mr. 8. attorney; of Yew Jersey, General Prosecutor, counsel). Essex County curiae, amicus Association, Prosecutors’ Jersey The Yew J ames (Mr. appellant filed on joined the brief behalf O’UaTloran, Prosecutor, T. attorney). *4 County Hudson for Alan respondent.
Mr. Süber the cause argued of the court was opinion delivered Handler, J. case This concerns the of a validity custodial defendant, James for upon Marzolf, the imposed a marijuana, following of possession plea bargain pursuant a to which of with intent charge, possession marijuana second distribute, to had been dismissed. In the six imposing sentence, custodial the court took into months consideration involved, of marijuana the the inference quantity drawing was “commercial” possession that in nature. The Division, in a J. Appellate reported opinion, 47, reversed and It remanded. held the offender for as first the sentencing simple posses- sion of not marijuana should have considered the of quantity or, marijuana involved should not alternatively, accepted if he to sentence defendant on the plea bargain intended basis of the count of with intent to dismissed possession J. distribute. 75 N. 585 (1977). We certification. granted were indicted Defendant Marzolf Levine and one Richard 24:21-20) on the criminal (N.J.S.A. charges possession A. 24:21- and possession with intent to distribute (N. Levine trial
19) Prior to twenty-five pounds marijuana. office,plead- entered into a with prosecutor’s plea bargain testify to to and ing guilty agreeing the count possession for dismissal in exchange defendant’s trial noncustodial of a the intent a recommendation charge days and several sentence. commenced Marzolf’s trial then but be- later, jury been submitted after the matter had State entered fore a and the rendered, verdict had been guilty undertook plead into Defendant plea bargain. dis- in turn possession; proposed
the count of the State intent to distribute the count miss of possession from defendant’s no agreed perjury charges stemming testimony at trial would be made no recom- brought; it mendation as to Before sentencing. plea, accepting trial court examined to his possession satisfied itself marijuana and that defendant knew that court not party agreement, the court could promise noncustodial term probationary that de- fendant could to a maximum of sentenced five years State Prison and be subjected $15,000. to a fine of The judge then accepted the the count guilty to *5 the matter sched- mistrial. Bail was continued
declared a uled for sentencing. of defendant’s
At in to the knowledge addition sentencing, a full available trial, court had acquired crime the during its "official to According presentence report. investigation Bureau of Nar- version”, County Essex of the detectives quantity marijuana. buy to arranged by telephone cotics a.m. 2:00 At meeting, and location of arranged the time Police in a car Citgo approached. Station South Orange, them- identify officers out and asked to passengers get Levine, selves. defendant or had occupants, Neither of In back seat of the car next the car. registration de- questioned a duffle When police bag. defendant the found out fell clothing said it contained Some laundry. fendant what were able to see appeared and the bag police then were arrested. blocks of The two marijuana. occupants be Another marijuana. The duffle contained bricks of bag half to contain brick a clear which plastic bag appeared analysis also found. chemical marijuana Subsequent were of 819.9 grams showed that one the bricks was composed was 25 The total ounces) marijuana. weight pounds (29.2 $30,000. The included with a retail market value of report in the characterization of defendant as a dealer large-scale the court objected agreed to which defendant drug, also con- report information. The presentence disregard that crime, he ac- in which defendant’s version of the tained were arrested at approximately that he and Levine knowledged driven 2:00 a.m. car had been Orange South New Defend- Union, from Jersey. en route Pennsylvania mari- ant disclaimed for the distribution responsibility However, fully only he aware juana. obviously its but also of the automobile presence marijuana handled distribution, which, claimed, was to intended Levine. term in the an 18-month sentenced defendant to The court Center, months of which were to Correctional six County subject balance suspended pro- served in with the custody, *6 The ex $500. bation with a fine of together reasoning pressed To a great the at sentencing important. is extent, it is in the between the court and colloquy reflected counsel, defense as well as assistant which prosecutor, the 22 focused years old) whether defendant upon (then entitled be for to considered sentencing purposes youth as ful, first-time offender marijuana with the charged only marijuana. counsel that simple possession of Defense stressed defendant should be regarded so and accorded the benefit lenient, of a noncustodial the views ex following in State v. 57 (1970) our 75 pressed by courts and Brennan, State v. N. J. (App. 1971) with of marijuana the of a first-time (dealing sentencing The fender). judge voiced as of applicability doubt to the either of these eases to situation commercial over having tones. Defense counsel then stated: * * * suggesting you’re dealing But I’m what the to when Court is marijuana, place, everybody
with marijuana in the first who is involved with voluntary thing is involved on a no basis. There’s such physical you’re dealing as a hind of addiction when with hind that phenomenon. Court, of social The for whether it commercial or noncommercial, you’re dealing young people, college age when with great promise, with the Court want to as much would exercise leniency possible. thought might suggestion, The that there abe despite simple possession the fact that there was of of possession intent, and a dismissal of the Prosecutor’s of office spite I would in the hate thinh of fact the defendant that has pleaded simple possession possession and to a with intent being is distribute dismissed that the defendant would be sentenced pleaded guilty possession as if he with intent to distribute.
To which the court rejoined: you No, telling considering quantity I I’m that am sirvWhat marijuana possession determining of in whether there suggestion
was a of commercialism order to follow the dictates telling you. of I’m Ward Brennan or That’s what not. The what judge emphasized he saw as the commercial aspect of offense: possession actively [sic] and was out obtained went You probation department pounds marijuana indicates of which $5,000 of $20 and a value about retail
has a wholesale value of using you very $25,000. had intentions I doubt much whether suspect very personal marijuana your any X use. own marijuana you strongly only make obtained your age. expense people profit own other others of both defendant deterrence stressed court On custodial sentence. months as basis for six imposing noted reasons the judge actual conviction judgment for the sentence imposed: committed, punish crime has To for the serious *7 punishment upon both he the so that
to inflict sufficient defendant committing inclined, like crimes others so deterred from and will be defendant, attempt future, the to rehabilitate in the to reform crime, any life on and to not more of his so that will waste defendant, by imposition custodial sen- the the of a demonstrate to tence, to resort to such is in for him should he continue what store criminal conduct. mani- On that his was argued appeal to a noncustodial festly excessive and should be reduced or, in the im- alternative, sentencing term since the judge a of with sentence based the count posed upon possession dismissal, its intent to distribute the notwithstanding plea his for was violated and conviction and sentence bargain him should set aside allow to proceed be possession on The Division vacated sen- trial both counts. the Appellate to allow tence and remanded the matter the trial judge, option, either to resentence the disregarding commercial intent possessed any amount or to the bargain characterized vacate possession, plea of indictment for trial. schedule both counts presented The Division stated the question Appellate was as follows: a for on the appeal “May judge sentencing possession consider amount and the simple possessed in intent with which the sen- possessed determining it 152 N. J. imposed?” at 49. State’s Super, tence for petition certification same question: restated the “Must a judge sentencing possession of controlled dangerous ignore substances possessed amount intent with which it was possessed of determining quantum sentence?” The if Appellate Division also ruled that amount of the controlled an substance dangerous suggests distribute, intent as distinguished from for the possession use, defendant’s own a trial should not plea agree if bargain charge dismissal more serious involving the amount he could ignore probable such that existence such an intent to distribute sentence. imposing 152 N. J. at 50. two thus inter- Super, appeal presents This issues, related sentence of a namely, whether custodial youthful, first-time offender with the charged with substantial large quantity marijuana monetary value, use, not intended for his own obviously can con- excessive; and, not, sidered if whether the im- manifestly position sentence, such custodial into account the taking quantity marijuana deemed of a possessed, may be violative plea bargain which for the involved of guilty posses- sion of the and the dismissal of a marijuana second count charging possession marijuana intent to dis- tribute.
I *8 Defendant contends that the custodial sentence is mani festly because, excessive as a first offender convicted of only simple of possession marijuana, he was entitled to receive a noncustodial term. This maximum sentence, argues, is
.mandated State v. by supra Brennan, and State v. In
supra. connection with this argument, the State raises a threshold issue, that disputing defendant a is first of fender. status a
Defendant’s as first offender was raised before The judge. sentencing presentence report noted that de- a fendant had conviction for prior possession of under 25 counsel out the sen- pointed Defense grams marijuana. in- however, presentence report that tencing judge, in super- Defendant’s offense had resulted prior correct. N. J. S. A. a 24:21-27 and pursuant treatment visory a The rather than conviction. discharge improvement, and ap- this defense counsel accepted by correction a defendant to be “first offender”. parently considered a assumed that defendant was simply Division Appellate N. J. at 49. Super, offender. 152 first defendant, a record reveals only We whose agree treatment and a conditional dis received supervisory that he arrest, regarded should be prior drug generally charge N. J. S. A. first for sentencing purposes. offender as as of a sentence twice as imposition 24:21-29 allows severe N. J. 8. A. can be offender. 24:21- which given first * * “* treatment Imposition supervisory provides: 27(b) not deemed a conviction for the shall be this section under a second or whether of determining subsequent purposes 29 of this law of any under section act fense occurred has would That statutory policy undoubtedly State.” this not such treatment and supervisory furthered regarding to a as tantamount conviction for gen conditional discharge is not inconsistent This with the eral sentencing purposes. A. 24:21-27(b) J. 8. directive such statutory once for conditional only proceedings. is discharge eligible 153 N. J. Occhipinti, (Law . Cf 1977). first as a regarded Although follow that it has offender, does infraction which treatment all loses relevance for supervisory resulted It well have a sentencing purposes. bearing upon and awareness of the criminal culpability defendant’s factors conduct, ¡relating amenability implications well as the appropriateness deterrence. rehabilitation there should be “the fullest informa sentencing presented At concerning the life character tion possible York, New Williams v. 337 U. S. 69 Ct. istics.”
177 Ed. 1079, 1083, 1337, 93 1342 (1949). L. The defendant’s offenses, arrests or including juvenile background, prior even no exposed, though be convictions fully should 8, e. v. 71 N. J. 13 See, g., Sayko, (1976); ensued. State Green, v. v. 547, State N. J. 561-572 62 State (1973); Alston, N. J. 71 136 456 aff’d (App. 1975), Moore, J.N. 1 also Idaho 454 P. (1976); see 93 State, 51 2d 1969); Ct. Waddell v. 2d (Sup. Wis. Annot.,
But there rule initial possessors marijuana. question here the exercise dis- drug cretion in favor of a seller-user under favorable re- prospects aspect presented. no commercialism is habilitative where Super, (Emphasis supplied). [115 407]. N. J. 71 N. J. 373 Milligan, State v. (1976).
Cf. Defendant stresses that he was convicted only posses- — sion marijuana refers this as “simple possession”, although is not to he found in expression the statutory — of the crime, definition and that has this become drug Therefore, acceptable is not virulent narcotic. socially *11 to defendant, according the quantity drug possessed of the should have been determinative factor in sentencing.
The Division Appellate apparently accepted his characterization of his offense “simple possession” is contention that a quantity custodial sentence based upon with has inappropriate possession unless intent to distribute also been charged and sustained. We disagree. which to the principles generally are acceptable
sentencing of criminal defendants remain applicable per sons offenses. We charged drug stated fixing [i]n gravity sentence should consider of the appropriate punishment therefor, deterrence, crime and protection of public, any rehabilitation factors other or circumstances particular Jones, relevant to the 563, [State situation. v. 66 J. (1975)]. 568 Most recently these were precepts restated in State v. Leg geadrini, 75 N. 150 J. (1977). It is a tenet in sentencing that, where defendant is young without a record, prior the courts will strive for his reformation. Incarceration of (cid:127) the young, immature and criminally uninitiated defendant with less nefarious charged drug offenses is to be shunned order avoid the pernicious lasting, effects of prison. McBride, See, State v. 66 N. 577, J. 580 State v. (1975); Brennan, State v. supra; supra. 180 nor his offense should be
Yet, neither the defendant “whole person”, of sentence. The for purposes fictionalized selected personal history versions of not censored an be addressed in character, fashioning is to of his facets Green, v. Sayko, supra; v. State State sentence. appropriate fully totality should assess the A supra. sentencing judge offense”, v. State details circumstances, “including Johnson, 459; v. Alston, see State N. J. Super, 136 supra, Milligan, v. 1975); Div. State 27 (App. 137 N. cf. for simple so-called In imposing supra. considered narcotics, generally amount involved Thomas, v. See, e. g., People of obvious import.
factor Morales, v. Colo., State 1975); Ct. P. 1249 (Sup. 543 2d 1971); Ryles 841 Ct. (Sup. N. W. 2d 650, Wis. 2d 187 51 Basurlo, v. State, 1956); Cr. State v. P. 449 (Okl. 303 2d 1972); P. 970 (Ct. App. Ariz. 2d 342, 18 501 App. cf. Villa, 1975); P. 363 Ct. 371, (Sup. Ariz. 530 2d State v. 111 P. 698 Ct. (Sup. 509 2d 361, v. Ariz. 109 Shing, A. State, 401, 356 2d v. 31 Md. App. Couser 1973); Warren, 2d v. 79 Misc. People 1976); (Ct. Spec. App. nom., People sub 1974), Ct. aff’d 360 N. 961 (Sup. Y. 2d N. Y. S. 2d (App. A. D. 2d Apted, 51 Arnnot., “Review excessiveness 1976). generally, See R. case”, 55 A. 3d (1974). L. sentence in narcotics *12 from sentencing swing pendulum alone the Quantity may v. with supra State Compare severity. to leniency State, 83 year 561 P. 2d Cr. (Okl. 1977) (one v. Gray of of 60 on conviction days possession sentence reduced to amount” of “very marijuana seized) where small marijuana Warren, of v. to People supra (guilty plea charge with marijuana; sentencing of possession criminal attempted in 75 of mari that brought pounds defendant noted judge “form of that will imposed punishment and therefore juana reality.”). him back into jolt of a amount of call defendant’s substantial possession
To is of a marijuana “simple possession” something valuable
181 shorthand to distin It serve as convenient misnomer. 24:21-20, N. A. J. S. statutory charge possession, the of
guish distribute, intent sell or of with possession from the charge J. of N. A. Nevertheless there are gradations 8. 24:21-19. distribute, parallel from the intent to which possession, apart Hashish: “Marijuana and Degnan, of See degrees culpability. -, -,Q.
A 6 Crim. Just. Proposal”, Decriminalization Jester, 87 v. 68 N. J. 5, 26); State (1979) (ms. pp. cf. Ruiz, Davis, v. N. 69 v. State 68 J. State (1975); (1975); 68 J. Abuse and the State Hyland, “Drug 54 (1975); Modes Alternatives to System: Existing Criminal Justice Q. Thus, 167 Treatment”, (1974). Grim. Just. posses- sion so rarely is should not be drug “simple” surrounding circumstances solely considered because sustain a reasonable beyond not or justified might not doubt more associated with distribution. serious charges DiLuzio, (Law State 130 N. 230-231 v. Cf. following motion 1974) (on suspend proceedings can reliable charge heroin, court consider possession even drugs that was seller lof indicating evidence if defendant not with intent charged with possession Thomas, did People judge distribute); supra (sentencing heroin not consider balloons of additional improperly their sup- disclosed in presentence notwithstanding report, at pression as evidence trial).
Defendant’s in this ease possession simple was Even he was not of the more innocuous. though distribute, intent serious offense — involved conceded that amount approximately “[t]he — associated with larger normally than pounds use. It cannot denied the facts as personal developed trial, commercial motive in suggest drew possession.” inescapable sentencing marijuana inference from quantity possessed not held for his it was own use. solely Although court interest in the marijuana believed that defendant’s commercial, the fundamental is that point quantity
alone served to make possession much more serious and matter than would the dangerous possession lesser amount. Possession of substantial of a amount controlled dangerous substance be properly regarded with more deserving proportionately stringent punishment commensurate pur- accorded to the deterrent weight being in this poses The term sentencing. six-months custodial case, factors, which an abuse of these was not emphasized discretion or manifestly excessive.
II The Division Appellate held sentence imposed upon defendant was violative of It believed plea bargain. that defendant, who was convicted of the possession marijuana, had in effect been sentenced for the more serious which, charge possession with intent to distribute according to the dismissed. was to bargain,
Plea bargains
administered have
properly
been approved
as a useful aid to the efficient and fair administration of
Allison,
criminal
justice. Blackledge v.
431 U.
63,
S. Ct. 1621, 52 L. Ed.
2d
(1977); Santobello v. New
York, U. S.
92 S. Ct.
183 aof and the risk to defendant an both counts on acquittal a mistrial following A trial both counts. second conviction on the And, plea bargain avoided. since by jury a hung in fact to the evidence of guilt be based upon had to 3:9-2, the R. of the trial fairness judge, satisfaction the sound administra- defendant, society, the interests of and served. justice tion of criminal were If is to an effective instrument plea bargaining * * * agreement terms of a justice, plea criminal “[t]he * * * by sentencing judge honored a meticulously should be his ‘reasonable expecta a defendant should he accorded
and Thomas, J. v. 314, v. N. 322 State (1972).” State 61 tions’, Jackson, Div. Where 431, 1976). 138 N. 434 Super. (App. J. are defeated, plea reasonable expectations
the accused’s fairness, failed has one of its essential purposes, bargain See, a should to withdraw permitted plea. defendant Allison, Machibroda supra; e. v. v. United g., Blackledge States, L. Ed. 487, 510, U. S. 87 Ct. 7 2d 473 (1962); 368 Nuss, 1974); State v. 131 N. 504 Super. 502, (App. Div. Jones, Thomas, v. 66 J. 524 State v. State (1975), cf. Poli, N. J. 1970). v. 112 374 (App. State
supra; however, expectations between reason difference, There is wishful bargain the terms ably grounded plea hope Defendants in the thinking. frequently plea bargain That their are not lesser sentence. wishes receiving fulfilled, however, automatically plea. will not invalidate States, v. Brady U. S. S. Ct. See United 25 L. Ed. 2d This whether (1970). depends upon honored whether plea terms of the been agreement from sentence was to be anticipated the lesser reasonably Jackson, State bargain. supra. See plea that he argues Defendant here reasonably expected from to be noncustodial term. plea granted bargain was not As Clearly expectation this reasonable. we pointed v. Ward and out, dealing cases with succeeding drug reflect strong policy leniency offenders noncustodial with only respect young persons, terms previously convicted, of small amounts of possessed marijuana for their own use no commercialism or suggestion wide-scale to others. Defendant distribution could not reasonably expect to be the of that beneficiary policy.
Defendant, moreover, cannot claim expressed that the terms of his were bargain defeated plea sentence imposed. The trial crystal made it clear to on the voir dire examination preceding acceptance could receive custodial sentence. There *15 is no basis in the that at record the time the plea of bargain, defendant, the and the prosecutor court labored any under that tripartite mistake the circumstances the of crime would rule the out custodial term. possibility State v. Cf. 140 N. J. 422 Brockington, (App. Div.), certif. den. 345, 71 cert. 940, den. 429 U. S. 357, 97 S. Ct. 50 Ed. L. 310 (1976). 2d we no
Similarly find substance to the that argument the violated the bargain and defendant’s under plea him “elements” its terms the standing by sentencing upon count, dismissed the namely, marijuana possession with intent to distribute. The it judge made sentencing explicit, response to direct defense counsel imputation by to the contrary, that he was not defendant for sentencing distribute. possession intent The court did not in fact the or impose assumption that upon finding defendant had to that pleaded count stood con victed of The charge. judge pointed out he was considering marijuana quantity possessed and inference it was not possessed solely own use to determine whether the sentence should as matter discretion sound follow the v. pattern State supra Brennan, v. and State supra, as defense counsel insisted. The court’s conclusion that defendant’s tinged with commercialism was based upon facts which defendant himself not and which dispute does he never requested, at time of plea bargain, disregarded court.
185 was not court to wear avoid required blinders to consideration of the character of defendant’s possession merely because those to some circumstances encompassed degree some of the elements to sustain a conviction under necessary Roberts, the dismissed v. Neb. 363, 193 227 charge.
N. W. 577 2d State v. Neb. (1975); Holzapfel, 672, 223 State, W.N. 2d 670 Couser v. (1974); supra; People cf. Mashaw, A. D. 376 N. Y. 2d 2d (App. Castano, State v. 89 Ariz.
1975); 360 P. 2d (Sup. Ct. 1961). Where uncontroverted facts two such overlap crimes, as as defendant is not sentenced as long though guilty and convicted of the dismissed the court is charge, put the election, outlined by Division, either Appellate disregard the facts totally upon the dismissed bearing charge, obvious notwithstanding their and direct relevance to crime to which defendant has pled or to guilty, permit withdrawal of the plea bargain a trial of require both That charges. option unrealistic and impractical and would undermine the utility of needed tool bargaining sound, fair and efficient administration of criminal justice. It assuredly is not dictated secure for a fairness criminal defendant, since plea bargain would not be unless a accepted has had the advice of counsel *16 and has satisfied the court that is a there factual basis his he understands plea fully its consequences especially its sentencing ramifications.
Defendant in this case was not confused, or mis- misled taken. His counsel’s claim that he believed a non-custodial term would flow as a matter of course has a hollow ring light the undisputed circumstances of De- the crime.
fendant knowingly pleaded to the crime guilty of possession of a substantial and valuable amount of assuredly marijuana, a trivial possession; pursuant his he se- plea bargain cured the dismissal and escaped conviction of more serious charge possession with to distribute avoided a intent more severe on penalty his with charge; sentence its custodial feature was not excessive and did not violate the from the plea reasonably flowing of or expectations
terms bargain. is Division of the Appellate
Accordingly, judgment rein- are conviction reversed and defendant’s stated. ashman, J., pleaded
P I Defendant dissent. dissenting. which prohibits a 8. A. 24:21-20 guilty to violation of N. J. substance. dangerous of a controlled knowing possession of, convicted to, nor was he Defendant did not plead guilty . . . dis intent “with separate possession offense Notwithstanding, A. . . . .” N. 24:21-19. tribute J. 8. well (as trial custodial sentence a six-month judge imposed, he believed that because as 12 months fine) probation possession sug the circumstances defendant’s surrounding — coupled is, possession “commercial” overtones gested he in effect an In so doing, “intent distribute.” free from due to be process right eviscerated defendant’s unless the for the commission of offense punishment specific every beyond each and' element' of that offense State proves Ct. In U. 90 S. reasonable doubt. See re Winship, Moreover, L. Ed. consideration 2d (1970). ex directly this factor contravened reasonable of his to plead created the terms pectations agreement count. he should possession Consequently, or, al consideration of commercialism resentenced without and stand ternatively, to withdraw permitted trial.
I 8. A. makes 24:21-19 unlawful the possession . . . substance “with dis- controlled dangerous intent 24:21-20, statute, N. J. 8. A. tribute . . .” A separate . criminalizes the such substance. “possession” mere a clear of each of distinct is provisions enactment .these whose those illegal declaration legislative
187 threat a aspects greater with commercial coupled pose are of more severe and hence deserving societal well-being, a who controlled punishment, merely possess than those Hence, pleads guilty an individual who substance. dangerous A. N. J. 24:21-19 is convicted 8. or violation than that a harsher sentence should receive ordinarily pleads individual who out situated similarly meted A. of N. J. 8. 24:21- convicted a violation See, J. State 20. State v. 57 N. e.g., (1970); Brennan, In order 1971). (App. for this more sentence to be potential severe appropriate, however, reasonable doubt must prove beyond to . . . in with an “intent fact coupled . . . distribute .” burden of of its relieves the State today
The majority is, element. additional That to this proof respect failure or the State’s notwithstanding majority rules 24:21-19, N. J. S. A. under a conviction to secure inability was in fact if a conviction can be such imposed sentence the sen- can convince obtained, as as the long prosecutor a de- circumstances surrounding tencing over- “commercial of marijuana suggest fendant’s possession tones.” under due
Such a nullifies right holding a crim to be from sanctions imposed clause free process the State a reasonable doubt beyond inal statute unless proves each element every that the defendant has committed 90 S. Ct. offense. In re 397 U. S. Winship, should be L. Ed. 2d 368 this case Consequently, (1970). in without imposed remanded order that sentence regard overtones. commercial any due conveniently ignores process The majority impli- cations of the below its discus- imposed by focusing — e., i. here at issue a matter which is not sion upon' whether, take into ac- general, sentencing judge aby defendant. quantity marijuana possessed count the is, however, a much issue this ease presented precise *18 188 — can be con- factor quantity whether
narrower question "commercial existence io determine the order sidered in of overtones.” N. J. of for a violation sentence
Clearly, imposing judge marijuana of quantity S. A. consider may 24:21-20 demonstrates, the main caselaw As possessed. are: (1) of sentence choice judge’s trial goals underlying of so deterrence; rehabilitation; protection (3) (2) aof particular conduct on the part from criminal future ciety See, 150, 157- 75 N. J. v. Leggeadrini, e. State g., defendant. Jones, In N. J. 568 (1975). v. (1977); N. J. violated the case offenders found to have of youthful goals A. these among 24:21-20, emphasized we have Ward, 57 v. See State rehabilitation is the important. most Brennan, supra, N. J. See also State 82-83 ,(1970). is con 115 N. as quantity 406-407. As Super, long at can factor criteria, sidered above this only as it relates to the ag all other in properly considered combination bearing upon circumstances gravating mitigating defendant. seriousness of the crime the character a defendant possessed Thus, marijuana the amount laws drug to violate his propensity be relevant may sen- impose particular and hence the need future See, e. g., supra, recidivism. in order prevent tence when large a heavier sentence out N. J. 82-83. Meting from wholesale deter others also may are involved quantities Finally, possession substance. of a dangerous use controlled tran- indicate that may quantities large extent, hence to a greater bounds statutory scended one who than possesses more deserving punishment, a smaller amount. merely take into account ordinarily
Therefore, may trial for violation imposing factor quantity however, he is con- J. S. A. 24:21-20. What do> assess whether factor in order to sider this For would in with a commercial motive. to do so coupled of a of- a defendant statutory effect to adjudge for which has not been convicted. fense
II majority’s Even conclusion the correctness assuming “commercial over- ordinarily a consider the judge may N. J. tones” when sentence for violation present imposing 8. A. factor should 24:21-20, clearly in the this present case *19 not have been was originally taken into account. Defendant A. 24:21-20) on J. 8. indicted both charges (N. 8. A. J. 24:21- possession with to distribute (N. intent the verdict, Before rendered a defendant and
19). jury the the guilty State defendant would to agreed plead pos- that session count and intent distribute would charge that the to be dismissed. plea The trial the judge, accepting bargain, did, notes, the tell that custodial majority not, ante 184. sentence See at He did imposed. might however, in sentence would be based way indicate the any the overtones.”1 upon presence absence “commercial Our have now as a accepted plea bargaining legiti courts mate and respectable adjunct to the administration of the See, Bordenkircher g., criminal laws. e. v. 434 U. S. Hayes, L. Ed. 357, 663, 98 S. Ct. 2d 604 (1978); Thomas, 61 N. 314, J. We have (1972). emphasized, however, that if fulfill plea is to its bargaining pur intended must be conducted on both sides “the re poses, fairly it must reasonable disappoint expectations sults not the of either Thomas, see, State v. 321; 61 N. J. [party].” supra, at e. g., York, Santobello v. New 404 U. S. 92 Ct. 30 L. 1Although possibility defendant was thus informed as to the of a sentence, might expected (1) custodial well have his chances probation charge would be much if better commercialism the were dropped (2) any might custodial sentence he receive would be present. Thus, despite judge’s shorter than if commercialism were the justifiable warning, might expectations there well have existed on part by which were frustrated the ultimate sentence. A to guilty partic-
Ed. 2d 427 defendant who pleads (1971). fundamental the (1) ular three rights: offense relinquishes to con- (2) right of his by peers; be tried right jury himself. witnesses; not to incriminate right front and (3) a defendant is there- By agreeing plea bargain, to particular honored, lest expectations reasonable fore entitled to his Santobello, unwary. “trap” become procedure Thomas, supra; State v. 61 N. J. at 322. supra, A to honor a plea bargain negotiated bound If by the he feels of its terms will acceptance prosecutor. not serve ends of he remains free justice, reject See, allow bargain the defendant withdraw plea. Thomas, e. g., 322; State v. supra, 61 State v. 140 N. J. Brockington, He (App. 1976). not, however, may accept the and then impose sentence in violation of its terms. case,
In the
present
reasonably
believed that
to the
possession count,
pleading
would
without
imposed
regard
any commercial overtones that
have been
This belief
present.
was justifiably derived
from the fact that
charge
possession with intent
sell
State,
was dismissed as
part
See
plea.
Brown v.
*20
For Pashman- —-1. affirmance—Justice JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW WETTERING, SIMON, ROBERT AND ROBERT VAN JR. HAUSSMANN, JR., FRANK P. DEFENDANTS-APPEL LANTS. February
Argued September 26, 1978 Decided 1979.