the mandatory minimum term and recommend that
defendant receive probation with 364 days in jail.
Defendant claimed that the court had discretion under
section 12 to reduce the custodial part of his sentence.
The Supreme Court rejected defendant’s claim and held
that where a negotiated plea agreement provides for a
specified term of imprisonment, the sentencing court
may not impose a lesser term than provided for in the
agreement because it would undermine the clear
legislative purpose expressed in N.J.S.A. 2C:35-12.
Therefore, to promote cooperation between drug
offenders and law enforcement, section 12 must be read
to limit a court’s discretion to sentence below the agreed-
upon term of imprisonment. Accord, State v. Leslie, 269
N.J. Super. 78 (App. Div.), certif. denied, 136 N.J. 29
(1993). But see State v. Cengiz, 241 N.J. Super. 482 (App.
Div.), certif. denied, 122 N.J. 402 (1990), in which
defendant, who pled guilty to various drug offenses
including distribution within a school zone, was entitled
to a remand on whether there was an agreement with the
State regarding relief from the mandatory parole
ineligibility, and whether the agreement was breached.
State v. Barber, 262 N.J. Super. 157 (App. Div.),
certif. denied, 133 N.J. 441 (1993), held that because
first-degree possession with intent to distribute
statutorily mandates a period of parole ineligibility,
N.J.S.A. 2C:35-5(b)(1), the trial judge is required to
impose a period of parole ineligibility despite
downgrading defendant’s sentence to a second-degree
offense and imposing a five-year term.
6. Extended Terms
State v. Irrizary, 328 N.J. Super. 198 (App. Div.),
certif. denied, 164 N.J. 562 (2000) - the sentencing court
is statutorily required to impose an extended term
sentence on defendant as a repeat drug offender pursuant
to N.J.S.A. 2C:43-6f. In accordance with the Attorney
General Guidelines, however, waiver of the extended
term is authorized where the prior conviction is
“extremely remote.” But see State v. Kirk, 145 N.J. 159
(1996).
State v. Hill, 327 N.J. Super. 33 (App. Div. 2000),
held that N.J.S.A. 2C:43-6f, the provision mandating
enhanced sentence for repeat drug offenders, does not
require chronological order of convictions, and therefore
is applicable so long as defendant was previously
convicted of the predicate offense at the time of
sentencing.
7. Accomplice
In State v. Bram, 246 N.J. Super. 200 (Law Div.
1990), the court held that an individual convicted as an
accomplice in the commission of a drug offense is subject
to the mandatory penalties authorized under the Act as
if he were the principal perpetrator. But see State in Interest
of W.M., 237 N.J. Super. 111 (App. Div. 1989), where
it was held that imposition of the mandatory penalties for
a drug offense cannot be based on conviction or
delinquency adjudication for conspiracy to commit a
drug offense.B. Plea Agreements/Attorney General Guidelines/Cooperation Agreements
In State v. Lagares, 127 N.J. 20 (1992), the Supreme
Court considered a separation of powers challenge to
N.J.S.A. 2C:43-6f, which requires a court to impose an
extended term with a period of parole ineligibility for a
repeat drug offender. Although the sentence is
mandatory under the statute, whether an extended term
is imposed depended upon the prosecutor because
section 6f takes effect only on his or her application. The
defendant asserted that the statute impermissibly
delegated judicial sentencing powers to the prosecutor.
The Supreme Court stated that as it was currently
written, section 6f would be unconstitutional because it
lacked any guidelines and avenues for effective judicial
review. To cure the constitutional defect, the Supreme
Court interpreted the statute to require that guidelines
be adopted to assist prosecutorial decision-making with
respect to applications for enhanced sentences under
N.J.S.A. 2C:43-6f. Also, to permit effective review of
prosecutorial sentencing decisions, prosecutors were
required to state on the trial record the reasons for seeking
an extended term. Further, to protect against arbitrary
action, the Court held that an extended term may be
denied or vacated where defendant has established that
the prosecutor’s decision to seek the enhanced sentence
was an arbitrary and capricious exercise of prosecutorial
discretion. Defendants must show clearly and
convincingly their entitlement to relief under that
standard. See also State v. Press, 278 N.J. Super. 589 (App.
Div.), certif. denied, 140 N.J. 328-29 (1995), appeal
dismissed, 144 N.J. 373 (1996).State v. Vasquez, 129 N.J. 189 (1992); State v. Peters,
129 N.J. 210 (1992) - In these companion cases, the
Supreme Court addressed whether the court on
resentencing a defendant for violation of probation
resulting from a conviction for distributing drugs in a
school zone is required to impose a mandatory period of