STATE OF NEW JERSEY v. CORNELL BOOKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2899-03T12899-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CORNELL BOOKER,

Defendant-Appellant.

____________________________________________________________

 

Submitted September 13, 2005 - Decided

Before Judges Coburn and Collester.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, 02-05-00578.

Yvonne Smith Segars, Public Defender, attorney

for appellant (David M. Quirk, Designated Counsel,

on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

In this criminal case, Cornell Booker appeals from a post-judgment order denying him the benefit of a material financial term of his plea agreement with the State. Since the terms and conditions of a plea bargain must be meticulously carried out, we reverse and remand for enforcement of the agreement.

Booker faced charges contained in three Middlesex County indictments: 02-01-00069-I, 02-02-00271-I, and 02-05-00578-I. In return for his guilty pleas to Count Four of 02-01-0069-I (charging distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-5a and 2C:35-7.1) and Count Three of 02-02-0271 (charging possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-5a and 2C:35-7), the State agreed in writing to dismiss the other counts of those indictments and 02-05-00578 (charging contempt, N.J.S.A. 2C:29-9). The written agreement further provided that the sentences would be concurrent with the State's recommendation for an aggregate term of imprisonment of five years, thirty-three months to be served without parole, plus imposition of the required statutory penalties. Finally, the written agreement provided for "Return of Money Seized" on the dismissed indictment and emphasized this point by noting that the only money forfeited would be the "money seized under the other indictments and that the money seized under [the dismissed indictment was] to be returned to D[efendant]." This written agreement was confirmed on the record when the judge asked Booker if he understood that the money forfeited would be that seized during the arrests on the indictments to which he was pleading guilty.

On September 27, 2002, judgments were entered in accordance with the plea agreement, except that no mention was made about the return of the money seized under the dismissed indictment.

Although Booker did not appeal, he filed a motion in 2003 seeking the return of the money seized under the dismissed indictment. The State replied in writing, noting that Booker's trust account maintained by the Department of Corrections showed outstanding monetary penalties totaling $4,435, resulting from the indictments to which he had pled guilty. The letter concluded by noting that the New Brunswick Police Department was holding $3,449 seized under the dismissed indictment and asked that the money "be ordered to be deposited into defendant's aforementioned trust account and that the Department of Corrections be ordered to apply them to payment of the outstanding obligations mentioned above." On October 27, 2003, the trial court, without making findings of fact or engaging in legal analysis, entered the order submitted by the State, thus enforcing the State's position. More specifically, the order provided for the New Brunswick Police Department to transfer $3,444 to "the Prosecutor's Seized Asset Trust Account maintained by the Treasurer of the County of Middlesex" and for the money to be sent thereafter to the Department of Corrections for deposit into Booker's trust account, where it was to be "applied totally to the reduction of court imposed fines and penalties." Booker filed an appeal on December 5, 2003, without seeking or obtaining a stay of the trial court's order. The record does not reveal whether the order was executed.

The overarching principle of law is clear: "the terms and conditions of a plea bargain must be meticulously carried out."
State v. Jones, 66 N.J. 524, 525-26 (1975) (citations omitted). In this case, the critical term was that the State was to return to Booker the $3,444. The State's first argument is that it met its obligation. But transferring the money to Booker's State imposed trustee, the Department of Corrections, with an order that it transfer the money back to the State, is not a return of the money to Booker and does not satisfy the agreement in question.

Next, the State argues that the judgment of convictions on the indictments to which Booker pled guilty were filed with the Superior Court and were subject to writs of execution issued pursuant to R. 4:59, and it contends that the order was, in effect, a writ of execution. At the same time, the State concedes that the order violates N.J.S.A. 2A:17-19 by failing to provide for the $1,000 exemption from execution called for by the statute. Were the State's position sound, it could have given Booker the check and served him with the "writ of execution" at the time of sentencing, but that would be entirely inconsistent with the agreement, which allowed for the imposition of the statutory penalties on the indictments to which Booker pled guilty, while promising him return of the money seized under the dismissed indictment.

Relying on Department of Correction regulations, the State also contends that N.J.A.C. 10A:3-6.6(a)(5)(d) prohibits the State from "simply send[ing] a check to defendant once he was a State-prison inmate, because personal checks are contraband and are immediately deposited to the inmate, trust account." But that subsection refers only to "cash received through the mail," which, by the way, it states "shall not be accepted by the facility for deposit in inmate accounts." Subsection (5)(c) concerns "personal checks" and provides that they "shall not be accepted by the facility for deposit in inmate accounts." And subsection (5)(g)(1) provides that "[p]ersonal checks received through the mail shall be returned to the sender, at the correctional facility's expense." While money orders and certified checks can be brought into the facility "for deposit in an inmate account," subsection (5)(b), there is no requirement that they be so deposited. It is doubtful that the Department of Corrections would consider an institutional check a personal check, but whether it would or would not, there is simply nothing in the regulations that appears to forbid an inmate from receiving a check from an institution, such as the State, endorsing it, and sending it to whomever or wherever he pleases for deposit. Even if there were such a regulation, it would be improper to use it to deny Booker the benefit of a legal plea agreement, which, as we have said, must be meticulously carried out.

Therefore, we reverse the order of October 27, 2003, and remand for further proceedings, which shall result in an order transferring the money to Booker completely free of any claim by the State based on the indictments to which Booker pled guilty.

 
Reversed and remanded.

(continued)

(continued)

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A-2899-03T4

September 21, 2005