STATE OF NEW JERSEY v. JAMES P. HYSON, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5124-03T45124-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES P. HYSON, JR.,

Defendant-Appellant.

___________________________

 

Submitted May 31, 2006 - Decided July 19, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Criminal Part,

Atlantic County, 03-12-2381.

Yvonne Smith Segars, Public Defender,

attorney for appellant (J. Stewart Borrow,

Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent

(Jack J. Lipari, Assistant County

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order vacating a guilty plea entered pursuant to a plea agreement and from the sentence imposed on a conviction resulting from a plea entered pursuant to a second plea agreement. We affirm.

Defendant was indicted on eleven drug-related charges. Count Two of the indictment alleged second-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2). Count Eleven charged first-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). The difference in the degree of the crimes is a function of the quantity of controlled dangerous substance involved. On February 9, 2004, defendant pled guilty to Count Two of the indictment. Before he was sentenced, the State moved to vacate the guilty plea. The stipulated facts on which that motion was based are not contained in the record but the prosecutor explained them to the judge:

Both counsel and I did review the files, we had the files opened, and we both had the same lab report that we were reviewing which, in fact, noted that the substances had not reached the first-degree threshold. When I had taken the case back to the office, reviewing it further, finding underneath paperwork, that there had, in fact, been subsequent labs submitted and on that date I did, in fact, notify counsel of what had occurred.

The judge granted the motion and explained his rationale:

The issue here is that the State was unmindful of other lab reports at that point in time with the quantity of the drugs involved exceeding 5 ounces.

The Court would hold that everyone in this case acted with good faith, that the error in question was on the State's side. There was no misleading by the defense or the defendant, although what the defendant knew or should have known may be one thing, but he's entitled to basically put the State to its proofs and [if] he knows he did more than they indicate they're able to prove, he can take advantage of that from the defendant's point of view. What happened was that the State - there were other - other lab reports not provided in the discovery. So basically what happened, Mr. Kelly goes to the prosecutor, say, hey, listen, second-degree weight. Prosecutor checks her file, what she's got and what she had available second-degree weight. Ultimately it turns out that it was more than that, and as soon as the error was discovered the prosecutor made the applicable motion.

The Court does believe that the matter is controlled by the language in State v. Veney, 327 N.J. Super. 458, [461 (App. Div. 2000)] which says in pertinent part,

"Therefore, if a judge is satisfied that the State has made an honest mistake in determining the terms of a plea offer, there is no reason why the State should not be permitted to withdraw the offer provided the application is made before the date of sentence."

Now there are some factual distinctions between this case and Veney, but I believe that Veney sets forth the applicable law. Bona fide conduct on behalf of the defense, an honest mistake on behalf of the prosecution, and here we are.

That being so, the Court would allow the State to withdraw from the negotiated plea agreement in advance of the sentence.

Although the defendant argues the oversight is not the "honest mistake" contemplated by Veney, we agree with the judge's resolution of this issue and affirm his order vacating the guilty plea for the reasons set forth in his April 8, 2004, oral opinion.

Thereafter, pursuant to a second plea agreement, defendant pled guilty to Count Eleven, charging first-degree distribution of a controlled dangerous substance. Pursuant to the plea agreement, defendant was sentenced, as if to a second-degree crime in accordance with the Brimage guidelines, to a seven-year term with a thirty-month period of parole ineligibility. Defendant does not suggest the sentence is excessive. Indeed, accepting the plea agreement forecloses that argument. State v. Soto, __ N.J. Super. __ (App. Div. 2006)(slip op. at 9). Nor does defendant assert that the sentence was imposed in violation of the instructions of State v. Natale, 184 N.J. Super. 458 (2005). That argument was foreclosed because defendant received the then-presumptive term for a second-degree offense.

Defendant's sole argument respecting sentence is that the judge failed to analyze the aggravating and mitigating factors, referring to them only by number. The Judgment of Conviction relates that "the court finds that aggravating factors three and nine and mitigating factors seven and nine apply to this sentence . . . Defendant is an addict in denial who will remain lawless unless the addiction is dealt with effectively."

This last sentence fully explains the judge's reliance on aggravating factor three, N.J.S.A. 2C:44-1a(3) (risk of recidivism). The nature of the crime fully justified the judge's reliance on aggravating factor nine, N.J.S.A. 2C:44-1a(9) (need to deter). Under these circumstances, the judge's reference to the aggravating and mitigating factors was sufficient to discharge his obligations.

Affirmed.

 

State v. Brimage, 153 N.J. 1 (1998).

(continued)

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A-5124-03T4

July 19, 2006