offense, the court must explain to defendant what the
State must prove to establish a capital crime before
accepting a plea. State v. Jackson, 118 N.J. 484 (1990).
Defendants need not be advised of the effect of a plea on
future, uncommitted crimes. State v. Wilkerson, 321 N.J.
Super. 219 (App. Div. 1999).
A guilty plea need not be vacated when a defendant
is not advised, prior to entering into the plea, of the
potential merger of separate offenses, when the merger
issue had not yet been resolved at the time of the plea.
State v. Crawley, 149 N.J. 310 (1997). A defendant need
not be advised that any statements made in connection
with the plea can be used in a subsequent perjury
prosecution even if the plea is withdrawn. State v.
Rodriguez, 280 N.J. Super. 590 (App. Div. 1995). In
State v. Simon, 161 N.J. at 442-46, the Supreme Court
found that defendant’s guilty plea to capital murder was
voluntary despite the alleged threats made to defendant
and his family.
II. PLEA BARGAINS GENERALLY
The process of plea bargaining is beneficial to both
defendant and the State -- defendant benefits from a
reduced penalty and the State benefits from the certainty
of some punishment and the conservation of resources.
See State v. Barboza, 115 N.J. 415 (1989); State v.
Williams, 277 N.J. Super. 40 (App. Div. 1994). R. 3:9-
3(a) permits the prosecutor and defense counsel to
engage in discussions relating to pleas, sentences, and
other matters that will promote a fair and expeditious
disposition of the case. The judge is not to take part in
such negotiations, and should only have advance
knowledge of the negotiations if the parties either ask the
court whether it will concur in a tentative agreement or
ask what maximum sentence it would impose if
defendant were to plead guilty. R. 3:9-3(c). The court
may not, however, dismiss or downgrade any charges
without the prosecutor’s consent. R. 3:9-3(c). The full
agreement between the parties should be placed on the
record in open court at the time the plea is entered. R.
3:9-3(b) and (c). The terms of the agreement should be
meticulously observed and, if the sentencing judge in the
interests of justice cannot accept the terms, the accused
should be permitted to withdraw the plea. R. 3:9-3(e).
The decision whether to engage in plea bargaining rests
solely with the prosecutor, and defendant cannot
demand a plea offer or compel the prosecutor to engage
in plea negotiations. State v. Williams, 277 N.J. Super. at
- A plea offer is an all-or-nothing arrangement, and if
the offer is rejected by either party or the court the parties
must be returned to their pre-bargaining positions. State
v. Pennington, 154 N.J. 344 (1998).
An admission by an unrepresented defendant which
is made as a result of a prosecutorial promise regarding
sentencing is treated as a statement made during plea
negotiations and is not admissible in court. State v.
Watford, 261 N.J. Super. 151 (App. Div. 1992). A
defendant’s acceptance of a proposed plea bargain does
not create a constitutional right to have the bargain
specifically enforced. Mabry v. Johnson, 467 U.S. at 510-
11 (1984); State v. Matos, 273 N.J. Super. 6 (App. Div.
1994). Likewise, if the plea agreement is rejected by the
sentencing judge, defendant is not entitled to specific
performance but, rather, only to withdraw the plea. State
v. Brockington, 140 N.J. Super. 422 (App. Div.), certif.
denied, 71 N.J. 364; cert. denied, 429 U.S. 940 (1976).
A defendant has no right to accept a plea offer that has
lapsed, been withdrawn, or that has been previously
rejected by him or her unless the State re-offers it. A court
therefore cannot enter a plea based on a lapsed,
withdrawn, or rejected offer. State v. Williams, 277 N.J.
Super. at 47-49. A court may not reject a negotiated plea
simply because it disagrees with the prosecutor’s exercise
of a discretion so long as the exercise is not arbitrary or an
abuse of office. State v. Muller, 246 N.J. Super. 518 (App.
Div. 1991).Upon acceptance of a guilty plea by the trial judge,
he or she, “for good cause shown,” may order that the plea
cannot be used as evidence in any civil proceeding. R.
3:9-2. However, mere exposure to devastating civil
liability does not per se constitute good cause as to invoke
the protection of this rule. State v. Schlanger, 203 N.J.
Super. 289 (Law Div. 1985).Once accepted, the terms of the plea agreement must
be meticulously adhered to, and defendant’s reasonable
expectations from the negotiations should be accorded
deference. State v. D.S., 289 N.J. Super. 413 (App. Div.),
certif. denied, 146 N.J. 69 (1996). Thus, the Supreme
Court in State v. Jones, 66 N.J. 524 (1975), remanded the
matter to the sentencing judge for reconsideration of the
consecutive terms imposed in view of the prosecutor’s
inadvertent failure to make a promised recommendation
of concurrent sentences.Entry of a knowing and voluntary unconditional plea
of guilty constitutes a waiver of non-jurisdictional
constitutional challenges. State v. DeLane, 207 N.J.
Super. 45 (App. Div. 1986) (Miranda issue waived).
However, a defendant may preserve the right of an
appellate challenge to the denial of a suppression motion
despite the entry of a plea of guilty. R. 3:5-7(d); State v.
Keegan, 188 N.J. Super. 471 (App. Div.), certif. denied, 93
N.J. 320 (1983). To preserve other issues on appeal, a