Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey

Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey

APPENDIX TO PART VII

GUIDELINES FOR OPERATION OF PLEA AGREEMENTS

IN THE MUNICIPAL COURTS OF NEW JERSEY

GUIDELINE 1. PURPOSE

The purpose of these Guidelines is to allow for flexibility in the definitions and

exclusions relating to the plea agreement process as that process evolves and certain

offenses come to demand lesser or greater scrutiny.

GUIDELINE 2. DEFINITIONS

For the purpose of these Guidelines, a plea agreement occurs in a Municipal Court matter

whenever the prosecutor and the defense agree as to the offense or offenses to which a

defendant will plead guilty on condition that any or all of the following occur:

(a) the prosecutor will recommend to the court that another offense or offenses be

dismissed,

(b) the prosecutor will recommend to the court that it accept a plea to a lesser or

other offense (whether included or not) than that originally charged,

(c) the prosecutor will recommend a sentence(s), not to exceed the maximum

permitted, to the court or remain silent at sentencing.

GUIDELINE 3. PROSECUTOR’S RESPONSIBILITIES

Nothing in these Guidelines should be construed to affect in any way the

prosecutor's discretion in any case to move unilaterally for an amendment to the original

charge or a dismissal of the charges pending against a defendant if the prosecutor

determines and personally represents on the record the reasons in support of the motion.

The prosecutor shall also appear in person to set forth any proposed plea agreement on the

record. However, with the approval of the municipal court judge, in lieu of appearing on

the record, the prosecutor may submit to the court a Request to Approve Plea Agreement,

on a form approved by the Administrative Director of the Courts, signed by the prosecutor

and by the defendant. Nothing in this Guideline shall be construed to limit the court's ability

to order the prosecutor to appear at any time during the proceedings.

GUIDELINE 4. LIMITATION.

No plea agreements whatsoever will be allowed in drunken driving or certain drug

offenses. Those offenses are:

A. Driving while under the influence of liquor or drugs (N.J.S.A. 39:4-50) and

B. Possession of marijuana or hashish (N.J.S.A. 2C:35-10a(4)), being under the

influence of a controlled dangerous substance or its analog (N.J.S.A. 2C:35-10b), and

use, possession or intent to use or possess drug paraphernalia, etc. (N.J.S.A. 2C:36-2).

No plea agreements will be allowed in which a defendant charged for a violation

of N.J.S.A. 39:4-50 with a blood alcohol concentration of 0.10% or higher seeks to plead

guilty and be sentenced under section a(1)(i) of that statute (blood alcohol concentration

of .08% or higher, but less than 0.10%).

If a defendant is charged with a second or subsequent offense of driving while

under the influence of liquor or drugs (N.J.S.A. 39:4-50) and refusal to provide a breath

sample (N.J.S.A. 39:4-50.2) arising out of the same factual transaction, and the defendant

pleads guilty to the N.J.S.A. 39:4-50 offense, the judge, on recommendation of the

prosecutor, may dismiss the refusal charge. A refusal charge in connection with a first

offense N.J.S.A. 39:4-50 charge shall not be dismissed by a plea agreement, although a

plea to a concurrent sentence for such charges is permissible.

Except in cases involving an accident or those that occur when school properties

are being utilized, if a defendant is charged with driving while under the influence of

liquor or drugs (N.J.S.A. 39:4-50(a)) and a school zone or school crossing violation under

N.J.S.A. 39:4-50(g), arising out of the same factual transaction, and the defendant pleads

guilty to the N.J.S.A. 39:4-50(a) offense, the judge, on the recommendation of the

prosecutor, may dismiss the N.J.S.A. 39:4-50(g) charge.

If a defendant is charged with more than one violation under Chapter 35 or 36 of

the Code of Criminal Justice arising from the same factual transaction and pleads guilty

to one charge or seeks a conditional discharge under N.J.S.A. 2C:36A-1, all remaining

Chapter 35 or 36 charges arising from the same factual transaction may be dismissed by

the judge on the recommendation of the prosecutor.

Nothing contained in these limitations shall prohibit the judge from considering a

plea agreement as to the collateral charges arising out of the same factual transaction

connected with any of the above enumerated offenses in Sections A and B of this

Guideline.

The judge may, for certain other offenses subject to minimum mandatory

penalties, refuse to accept a plea agreement unless the prosecuting attorney represents

that the possibility of conviction is so remote that the interests of justice requires the

acceptance of a plea to a lesser offense.

SUPREME COURT COMMENT (JUNE 29, 1990)

Over the years, various unique practices and procedures have evolved in connection with

the disposition of Municipal Court cases. Thus, it is the intent of these Guidelines to

define regulated plea agreements as including every common practice that has evolved as

a subterfuge for plea agreements. Therefore, for the purpose of these Guidelines, a plea

agreement shall include all of those traditional practices, utilized by prosecutors and

defense counsel, including "merger", "dismissal", "downgrade" or "amendment."

Generally, "mergers" involve the dismissal of lesser-included or related offenses when a

defendant pleads to the most serious offense. "Dismissals" involve motions to dismiss a

pending charge or plea agreement when the municipal prosecutor determines, for cause

(usually for insufficient evidence), that the charge should be dismissed. "Downgrades" or

"amendments" involve the taking of a plea to a lesser or included offense to that

originally charged.

Plea agreements are to be distinguished from the discretion of a prosecutor to charge or

unilaterally move to dismiss, amend or otherwise dispose of a matter. It is recognized that

it is not the municipal prosecutor's function merely to seek convictions in all cases. The

prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to

defendants, the State and the public to see that justice is done and truth is revealed in each

individual case. The goal should be to achieve individual justice in individual cases.

In discharging the diverse responsibilities of that office, a prosecutor must have some

latitude to exercise the prosecutorial discretion demanded of that position. It is well

established, for example, that a prosecutor should not prosecute when the evidence does

not support the State's charges. Further, the prosecutor should have the ability to amend

the charges to conform to the proofs.

Note: Guidelines and Comment adopted June 29, 1990, simultaneously with former Rule

7:4-8 ("Plea Agreements") to be effective immediately; as part of 1997 recodification of

Part VII rules, re-adopted without change as Appendix to Part VII and referenced by Rule

7:6-2 ("Pleas, Plea Agreements"), October 6, 1997 to be effective February 1, 1998;

Guideline 4 amended July 5, 2000 to be effective September 5, 2000; Guidelines 3 and 4

amended July 28, 2004 to be effective September 1, 2004; Guideline 4 amended June 7,

2005 to be effective July 1, 2005; Guideline 4 amended June 15, 2007 to be effective

September 1, 2007; Guideline 3 amended July 16, 2009 to be effective September 1, 2009.