School Zone Drug Distribution And Plea Agreements
- September 22, 2013
- No comments
In State v. Gerns, the New Jersey Supreme Court set forth certain principles pertaining to plea agreements. Gerns was indicted for 3rd degree distribution of marijuana within 1,000 feet of school property (N.J.S.A. 2C:35-7); 3rd degree possession of marijuana with intent to distribute (N.J.S.A. 2C:35-5a11 and N.J.S.A. 2C:35-5b(11); 3rd degree possession of marijuana with intent to distribute within 1,000 feet of school property (N.J.S.A. 2C:35-7) and two counts of 4th degree distribution of marijuana (N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12). The plea required cooperation with police in the apprehension of other drug offenders in exchange for softer sentencing. The Confidential Informer Contract called for a reduction in the defendant’s sentence based on the degree of cooperation received by the prosecutor. Gerns made efforts to cooperate but was unsuccessful as his arrest was known the others and he was assumed to be an informant and the prosecutor withheld any positive recommendation due to Gerns failure to offer valuable information. Gerns appealed the sentence as it was far in excess of the term promised in the plea agreement. The New Jersey Appellate Division found that the prosecutor acted in an arbitrary and capricious manner and remanded for resentencing. The Comprehensive Drug Reform Act of 1986, N.J.S.A 2C:35-1 to 36-9 (Drug Act) includes provisions for the protection of children from dealers in school zone cases and carries a presumption of mandatory imprisonment. However, a provision is also included, N.J.S.A. 2C:35-12, giving prosecutors authority to recommend lesser sentences in exchange for cooperation with law enforcement. Because of the great discretion given prosecutors, there is potential for abuse as well so prosecutors are required to place the reasons for their sentencing recommendations on the record at sentencing. The State defined cooperation as assistance from defendant resulting in valuable information to the State and refused to waive any mandatory minimums while Gerns argued he made a good faith effort to cooperate and also that the plea agreement did not define cooperation nor was the plea agreement specific as to the sentence it would recommend for cooperation. The state is required to define cooperation so the defendant’s plea may be voluntary, knowing and intelligently provided. A defendant is required to disclose all criminal activities known to them and partial performance may be considered if of tangible benefit to the prosecutor. It the prosecutor fails to reduce the sentence offered, the defendant has the right to explain the result in an effort to demonstrate the prosecutor’s decision was arbitrary and capricious. In Gerns, the NJ Appellate Division held that, when there is a reasonable misunderstanding, the defendant may 1) withdraw the guilty plea; 2) have a hearing to determine the level of benefit the state obtained from defendant’s cooperation; or 3) negotiate another plea. If you are facing criminal charges and believe a plea agreement is in your best interest, you should always review any agreement with an experienced criminal defense attorney to insure you are protected by its terms. Additionally, if you have accepted a plea under certain beliefs only to later find the prosecution was not offering what you thought or is now trying to modify the terms of the bargain you should consult with an attorney to protect your rights. For more information about plea offers, possession, distribution, distribution in a school zone, intent to distribute, drug charges or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.