providing that municipal prosecutors may recommend
the court to accept a plea to a lesser or other offense and
may move to amend the original charge in those cases).
III. PLEA BARGAINING UNDER THE CODE
N.J.S.A. 2C:43-6c, commonly referred to as the
Graves Act, requires that any defendant convicted under
N.J.S.A. 2C:39-4a (possession of a fireman with a
purpose to use it unlawfully against the person of
another), N.J.S.A. 2C:11-3 (murder), N.J.S.A. 2C:11-4
(manslaughter), N.J.S.A. 2C:12-1b (aggravated assault),
N.J.S.A. 2C:13-1 (kidnapping), N.J.S.A. 2C:14-2a
(aggravated sexual assault), N.J.S.A. 2C:14-3a (aggra-
vated criminal sexual contact), N.J.S.A. 2C:15-1
(robbery), N.J.S.A. 2C:18-2 (burglary), or N.J.S.A.
2C:29-5 (escape) who, while committing or attempting
to commit the crime, used or was in possession of a
firearm as defined in N.J.S.A. 2C:39-1f, “shall be
sentenced to a term of imprisonment by the court”
including a minimum term during which defendant
shall be ineligible for parole. The minimum term shall
be fixed at, or between, one-third and one-half of the
sentence imposed by the court or 3 years, whichever is
greater, or 18 months in the case of a fourth degree crime.
The Graves Act also provides for extended terms for repeat
Graves Act offenders.
On April 27, 1981, in an attempt to assure that the
mandatory three year prison term was strictly enforced in
accordance with the legislative intent, our Supreme
Court issued a memorandum directing all trial judges
that approval may not be given to negotiated pleas which
involve the dismissal of offenses carrying mandatory
custodial terms under the Graves Act. The only
exceptions are if the prosecutor represents on the record
that there is insufficient evidence to warrant a conviction,
or that the possibility of acquittal is so great that dismissal
is warranted in the interests of justice; or that the plea
being entered by defendant either includes the parole
ineligibility term under the Graves Act or defendant
acknowledges that a parole ineligibility term is to be
imposed at least equal in length to that which would have
been required under the Graves Act for the offense being
dismissed; or that the prosecutor states on the record,
either in camera or in open court, that the plea bargain is
essential to assure defendant’s cooperation with the
prosecution.
This memorandum further directed the trial judge to
ascertain at the time of the entry of the plea or at
sentencing whether a firearm was used or possessed in
connection with an offense to be dismissed pursuant to a
plea bargain. Such a finding is required since neither use
nor possession of a firearm is a necessary element of a
Graves Act offense. These same requirements apply to the
dismissal or downgrading of an indictment or counts
therein.N.J.S.A. 2C:43-6.2 provides a limited exception to
the Graves Act mandatory minimum. Under that
section, a prosecutor may move before the assignment
judge and urge that imposition of the mandatory
minimum under N.J.S.A. 2C:43-6c on a first-time
Graves Act offender does not serve the interests of justice.There has been some question regarding the ability
of prosecutors to enter into plea bargains in capital cases
because of the language of N.J.S.A. 2C:11-3. That
statute provides that the “conviction” of certain persons
for purposeful or knowing murder shall require the court
to “conduct a separate sentencing proceeding,” N.J.S.A.
2C:11-3c(1), and that the sentencing proceedings...
shall not be waived by the prosecuting attorney,”
N.J.S.A. 2C:11-3d. However, these provisions do not
prohibit a prosecutor from choosing to indict a defendant
for a lesser-included offense, felony murder, or non-
capital knowing or purposeful homicide. The law only
prohibits waiver of the sentencing phase by the
prosecutor, and that phase is triggered by a conviction of
knowing and purposeful homicide committed by
defendant’s own conduct, in a murder for hire situation,
or at the command of a leader of a narcotics trafficking
network in furtherance of a conspiracy. N.J.S.A. 2C:11-
3c; R. 3:7-3(b). Thus, prior to conviction, N.J.S.A.
2C:11-3d is not applicable.Persons convicted of certain violations of the
Comprehensive Drug Reform Act are subject to
mandatory minimum terms and parole disqualifiers.
N.J.S.A. 2C:35-1 et seq. Prosecutors may waive the
mandatory minimums by entering into a negotiated plea
agreement or post-conviction agreement with defendant.
N.J.S.A. 2C:35-12. The statute does not unconstitu-
tionally penalize a defendant for exercising his or her right
to a jury trial. State v. Brown, 227 N.J. Super. 429 (Law
Div. 1988); State v. Morales, 224 N.J. Super. 72 (Law Div.
1987). The prosecutor’s exercise of discretion is subject
to judicial review, and he or she should state on the record
the reasons for waiving or not waiving the mandatory
term and penalty. A defendant who can establish by clear
and convincing evidence that the prosecutor’s exercise of
discretion was arbitrary and capricious is entitled to
relief. State v. Vasquez, 129 N.J. 189 (1992).