STATE OF NEW JERSEY v. JESUS A. VEGA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6854-03T26854-03T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESUS A. VEGA,

Defendant-Appellant.

_________________________________

 

Argued October 24, 2005 - Decided

Before Judges Lintner and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County,

03-09-01650-I.

Scott E. Becker argued the cause for appellant.

Jack J. Lipari, Assistant County Prosecutor, argued the cause for respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the brief).

PER CURIAM

Defendant, Jesus Vega, appeals from an order permitting him to withdraw his guilty plea but denying his motion to be sentenced to a seven-year term in accordance with a Brimage agreement entered into with the Atlantic County Prosecutor's Office. We affirm.

On December 10, 2003, defendant pled guilty to two counts of a fourteen-count Atlantic County indictment, specifically: first-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (Count 10) and second-degree possession with intent to distribute cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count 13). The State's offer to waive mandatory minimums, N.J.S.A. 2C:35-12, under the Brimage guidelines, conditioned upon defendant entering into a cooperation agreement with the Atlantic County Prosecutor's Office was accepted by defendant. Under paragraphs A.1 and A.2 of the written agreement, defendant entered an unconditional plea, accepting a sentence recommendation of twelve years with five years of parole ineligibility. The agreement provided that defendant would make controlled buys from certain individuals listed as targets, wear a wire, and testify at all proceedings pursuant to the Prosecutor's request. If defendant failed to make buys from all the individuals listed, the state would recommend a ten-year sentence with a three-year period of parole ineligibility. The agreement also provided that:

1. If the extent and quality of defendant's cooperation, as above described is found to be satisfactory by the A.C.P.O., the following sentencing consideration will be recommended to the court: not to exceed 7 years N.J.S.P. (flat) forf[eiture] of all money/property seized. State will provide for protective custody for def[endant] in the event of any state prison sent[ence].

2. If the extent and quality of defendant's cooperation, as above described is found not to be satisfactory by the A.C.P.O., the sentence recommendation to the court will be as stated in paragraph A.2 of this agreement.

Defendant's cooperation was conditioned in part upon his agreement that he would not "break any laws or commit any crimes while working as a confidential informant."

Defendant signed the agreement on December 10, 2003. Following two meetings with detectives of the Prosecutor's Office, the Prosecutor's Office decided not to utilize defendant in the undercover investigation. Defendant moved to be sentenced in accordance with the agreement to a term of seven years or, in the alternative, to withdraw his plea. A plenary hearing was held on defendant's motion after which the judge permitted defendant to withdraw his plea. Eventually, defendant entered into a second plea agreement, pled guilty, and was sentenced to a ten-year term with four years of parole ineligibility. Defendant raises the following points on appeal:

I. THE COURT SHOULD HAVE IMPOSED THE SENTENCE CONTAINED IN THE COOPERATION CONTRACT BECAUSE THE PROSECUTOR CONCEDED THAT THE DEFENDANT DID NOT FAIL TO COOPERATE.

II. THE SENTENCE OF 10 YEARS INCARCERATION WITH A FOUR YEAR PERIOD OF PAROLE INELIGIBILITY IS EXCESSIVE.

At the plenary hearing, the following relevant facts were established. The initial meeting was held on December 15, 2003, between defendant and investigators, at which time they discussed the identity of certain targeted individuals. In attendance were Keith Carmack, a detective with the Atlantic County Prosecutor's Office, and Sergeant Robert Kelly of the County's Narcotic Strike Force. Also present was Edward Armstrong, a private detective retained by defendant. Carmack, Kelly, and Armstrong all testified that defendant stated at the initial meeting that he had purchased four and a half ounces of cocaine within the last week. Defendant also admitted advising them that he had purchased cocaine around December 14 or 15 for use during Christmas and New Years.

The second meeting was held on January 29, 2005. At the January meeting, defendant was presented with the Prosecutor's Office's Confidential Informant Advisement Form, which among other things advised defendant that he could not engage in illegal activity on his own and that all drug purchases would have to be made under the auspices of the State. Although defendant responded that he would follow the investigators directions, would no longer continue to buy drugs on his own, and would enter into such transactions only at the direction of the Prosecutor's Office, Carmack's supervisors decided not to use defendant in the undercover operation because they suspected, based upon the interview of December 15, that he was still active in the drug trade.

After hearing the testimony of Carmack, Kelly, Armstrong, and defendant, the judge made the following findings regarding the appropriateness of the Prosecutor's decision to terminate its arrangement with defendant:

The situation here is one where I believe what the State is saying is that there has been no breach of the contract in terms of performance, but a bona fide good faith reason on the part of the State to suspect or expect that there would be in futuro, if you will.

And if it's not that, then perhaps ongoing between the signing of the contract, some illegality, that from the State's point of view made any operation that came out of the cooperation untenable in terms of being able to prove the case in court because of obligations to divulge arguably exculpatory testimony, but certainly impeachment testimony if not exculpatory testimony, and as a practical matter, just place the entire integrity of the operation under a cloud.

And in my view absolutely the right thing to do on the part of the State to have cut bait at this point . . . . their oaths or office and the obligation they have as the people wearing the white hat . . . . You know, this is a concern that they rightfully have. And, again, under their obligations, I think [they] did the absolute, unquestionable proper thing here.

Concluding that defendant's reasonable expectations were not fulfilled, the motion judge essentially found that defendant would be prejudiced by not being permitted to withdraw his plea and the interest of justice would not be served by effecting the plea agreement.

Defendant argues that because he did not breach the agreement, he should have been afforded the benefit of the bargain, the seven-year flat term. Generally, a defendant seeking to vacate a plea must show that he was either "misinformed of the terms of the agreement" or that his "reasonable expectations were violated." State v. Bellamy, 178 N.J. 127, 135 (2003); State v. Howard, 110 N.J. 113, 123 (1988); see State v. Simon, 161 N.J. 416, 444 (1999). Where the accused's reasonable expectations are defeated, the plea bargain is deemed to have failed in one of its essentials, fairness, and a defendant should be permitted to withdraw the plea. To vacate a plea, a defendant must show that enforcement of the agreement would result in prejudice. Howard, supra, 110 N.J. at 123.

A defendant's right to withdraw a guilty plea rests with the broad discretion of the trial court. Bellamy, supra, 178 N.J. at 135. "As an appellate court, we are required to give great 'deference to those findings of the trial [court] [that] are substantially influenced by [its] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Simon, supra, 161 N.J. at 445 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)) (alterations in original). The standard for vacating a plea agreement and permitting an accused to withdraw a plea is a finding that "'the interests of justice' will not be served by effecting the plea agreement." State v. Salentre, 242 N.J. Super. 108, 112 (App. Div. 1990), certif. denied, 138 N.J. 269 (1994).

Firstly, we agree with the judge's findings that the State was justified in terminating the undercover operation. Defendant signed the agreement to cooperate in the undercover narcotics investigation on December 10. Sometime between signing the agreement and his initial meeting on December 15, defendant purchased four and a half ounces of cocaine. He revealed this unsupervised illegal activity to the detectives for the first time at the December 15 meeting. At the time he made the purchase, he had not yet started his work as a confidential informant. Although not technically in violation of the express condition not to engage in criminal activity "while working as a confidential informant," defendant nevertheless was in violation of the spirit of his accord with the State. Moreover, there is nothing in the record to indicate that he was misinformed of the terms of the agreement. Indeed, defendant not only agreed not to break the law while working for the State but also promised "not to initiate any action or investigation" on behalf of the Prosecutor's Office without prior approval. Under the circumstances, the Prosecutor's Office was fully warranted in terminating the agreement, albeit belatedly, after the second meeting. As an aside, we note that the State has not cross-appealed the judge's decision to permit defendant to withdraw his initial plea. We nevertheless consider the judge's decision to permit defendant to withdraw his plea.

The judge found that defendant's reasonable expectations were not realized in part due to his own activity prior to the commencement of undercover activities and the State's decision to terminate the agreement. The judge appropriately concluded that because defendant never fully participated in the undercover narcotics operation, which included the making of controlled buys, he was facing a recommended sentence substantially in excess of the sentence he expected had he successfully assisted the State. By violating the spirit of the agreement, defendant jeopardized his benefit of the bargain, specifically his promise to cooperate satisfactorily in the undercover operation in return for a recommended sentence not to exceed seven years. By the same token, defendant's reasonable expectations were defeated by the State's early termination of the cooperation agreement. We are satisfied that under these circumstances the interest of justice would not have been served by enforcing the plea agreement for either side. The judge did not mistakenly use his discretion in granting defendant's alternative relief, the vacation of his guilty plea.

In Point II of his appellate brief, defendant contends that the judge erred following his subsequent guilty plea by imposing a ten-year term with four years of parole ineligibility. He argues again that he did not breach the agreement and was thus entitled to a seven-year term. We need not repeat what we have already discussed. Simply stated, defendant's Point II contention is without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

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

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A-6854-03T2

November 2, 2005