defendant must enter a conditional plea pursuant to R.
3:9-3(f) with the approval of the court and consent of the
prosecuting attorney. See State v. Morales, 182 N.J. Super.
502 (App. Div. 1981), certif. denied, 89 N.J. 421 (1982).
A court may not accept a negotiated plea subsequent
to the pretrial conference and setting of a trial date
without the approval of the criminal presiding judge
based on a material change of circumstances or the need
to avoid a protracted trial or a manifest injustice. R. 3:9-
3(g).
Failure to raise on defendant’s first appeal the issue
that restitution was not contemplated by the plea
agreement barred relitigation of the scope of the plea
agreement on subsequent appeal. State v. Rhoda, 206
N.J. Super. 584 (App. Div.), certif. denied, 105 N.J. 524
(1986).
In State v. Thomas, 61 N.J. 314 (1974), the Supreme
Court ordered dismissal of a murder indictment which
issued after defendant had entered into a plea bargain
regarding a charge of atrocious assault and battery upon
the same victim. At the time of the plea, the victim had
not yet died, and defense counsel advised his client that
a plea to the assault would probably preclude a possible
subsequent charge of murder. Dismissal of the murder
indictment was deemed necessary to fulfill defendant’s
reasonable expectation that the plea bargain would
terminate his criminal liability for the incident.
In Ohio v. Johnson, 467 U.S. 493 (1984), the United
States Supreme Court held that the double jeopardy
clause was not violated when a state continued to
prosecute a defendant on charges of murder and
aggravated robbery where defendant, who was indicted
on four related charges arising out of a murder and
robbery, pled guilty to the lesser offenses of involuntary
manslaughter and grand theft as charged but pled not
guilty to the more serious offenses of murder and
aggravated robbery.
In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the
United States Supreme Court held that it was permissible
for a prosecutor to threaten to reindict defendant on a
more serious charge, for which defendant was clearly
subject, while negotiating a plea bargain. A prosecutor
may also condition a plea agreement on its acceptance by
codefendants. State v. Smith, 306 N.J. Super. 370 (App.
Div. 1997).
In State v. Fort, 101 N.J. 123 (1985), our Supreme
Court held that plea agreements cannot prohibit
codefendants from testifying on each others’ behalf. This
“no testimony” agreement violated defendant’s constitu-
tional rights to due process and compulsory process.In Rickets v. Adamson, 483 U.S. 1 (1987), a plea
agreement was entered into between the State and
defendant wherein defendant would plead guilty to
second degree murder and testify against his
codefendants in return for a specified prison term. In
addition, the agreement also provided that if defendant
refused to testify “this entire agreement is null and void
and the original charge (first-degree murder) will be
automatically reinstated.” Id. at 3-4. This plea
agreement was accepted by the trial court, and defendant
testified against his codefendants who were eventually
convicted. Co-defendants’ convictions were later
reversed by the Arizona State Supreme Court, and at
codefendants’ second trial defendant refused to testify,
claiming that his obligation to testify under the
agreement terminated when he was sentenced. The State
then filed a new information charging him with first-
degree murder, and his resulting conviction was affirmed
on appeal. Id. at 4-7. The Court in Rickets held that
defendant’s prosecution for first-degree murder did not
violate the constitutional prohibition against double
jeopardy. His breach of the plea agreement removed the
double jeopardy bar that otherwise would prevail,
assuming that second-degree murder is a lesser-included
offense of first-degree murder. Id. at 8.As long as the trial court adheres to the applicable
sentencing provisions of the Code, a plea agreement
permitting the trial court to increase the sentence for
defendant’s failure to appear at sentencing is enforceable.
State v. Subin, 222 N.J. Super. 227 (App. Div.), certif.
denied, 111 N.J. 580 (1988). Also, plea agreements that
require a defendant to appear voluntarily for sentencing
as a condition of the State’s waiver of a mandatory
minimum term are enforceable. State v. Shaw, 131 N.J.
1 (1993). A prosecutor may not, however, reserve the
right to withdraw from the plea agreement if the judge
imposes a lesser sentence than that which was negotiated.
State v. Warren, 115 N.J. 433 (1989).Defense counsel’s failure to inform defendant of a
favorable plea bargain amounts to a prima facie case of
ineffective assistance. State v. Powell, 294 N.J. Super. 557
(App. Div. 1996).Plea negotiations are prohibited in drunk driving
cases. R. 7:6-2(d); State v. Hessen, 145 N.J. 441 (1996).
But see L. 2000, c. 75 (creating offense of driving or
operating a motor vehicle in an unsafe manner and