Professional Documents
Culture Documents
(d) Plea Agreements. Plea agreements may be entered into only pursuant to the
Guidelines and accompanying Comment issued by the Supreme Court, both of
which are annexed as an Appendix to Part VII, provided, however, that:
(1) the complaint is prosecuted by the municipal prosecutor, the county prosecutor,
or the Attorney General; and
(2) the defendant is either represented by counsel or knowingly waives the right to
counsel on the record; and
(3) the prosecuting attorney represents to the court that the complaining witness
and the victim, if the victim is present at the hearing, have been consulted about
the agreement; and
(4) the plea agreement involves a matter within the jurisdiction of the municipal
court and does not result in the downgrade or disposition of indictable offenses
without the consent of the county prosecutor, which consent shall be noted on the
record; and
(5) the sentence recommendations, if any, do not circumvent minimum sentences
required by law for the offense.
When a plea agreement is reached, its terms and the factual basis that supports the
charge(s) shall be fully set forth on the record pursuant to section (a)(1) of this rule.
If the judge determines that the interest of justice would not be served by accepting
the agreement, the judge shall so state, and the defendant shall be informed of the
right to withdraw the plea if already entered.
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
2
all reasonable efforts to dispose of the case without trial have been made and it
appears that further negotiations or an additional status conference will not result in
disposition of the case, or progress toward disposition of the case, the judge shall
conduct a pretrial conference. The conference shall be conducted in open court with
the prosecutor, defense counsel and the defendant present. Unless objected to by a
party, the court shall ask the prosecutor to describe, without prejudice, the case
including the salient facts and anticipated proofs and shall address the defendant to
determine that the defendant understands: (1) the State's final plea offer, if one
exists; (2) the sentencing exposure for the offenses charged, if convicted; (3) that
ordinarily a negotiated plea will not be accepted after the pretrial conference and a
trial date has been set; (4) the nature, meaning and consequences of the fact that a
negotiated plea will not be accepted after the pretrial conference has been
conducted and a trial date has been set; and (5) that the defendant has a right to
reject the plea offer and go to trial and that if the defendant goes to trial the State
must prove the case beyond a reasonable doubt. If the case is not otherwise
disposed of, a pretrial memorandum shall be prepared in a form prescribed by the
Administrative Director of the Courts. The pretrial memorandum shall be reviewed
on the record with counsel and the defendant present and shall be signed by the
judge who, in consultation with counsel, shall fix the trial date. No admissions made
by the defendant or defendant's attorney at the conference shall be used against
the defendant unless the admissions are reduced to writing and signed by the
defendant and defendant's attorney. The court shall also inform the defendant of the
right to be present at trial, the trial date set, and the consequences of a failure to
appear for trial, including the possibility that the trial will take place in defendant's
absence.
3:9-2. Pleas
A defendant may plead only guilty or not guilty to an offense. The court, in its
discretion, may refuse to accept a plea of guilty and shall not accept such plea
without first addressing the defendant personally and determining by inquiry of the
defendant and others, in the court's discretion, that there is a factual basis for the
plea and that the plea is made voluntarily, not as a result of any threats or of any
promises or inducements not disclosed on the record, and with an understanding of
the nature of the charge and the consequences of the plea. When the defendant is
charged with a crime punishable by death, no factual basis shall be required from
the defendant before entry of a plea of guilty to a capital offense or to a lesser
included offense, provided the court is satisfied from the proofs presented that there
is a factual basis for the plea. For good cause shown the court may, in accepting a
plea of guilty, order that such plea not be evidential in any civil proceeding. If a plea
of guilty is refused, no admission made by the defendant shall be admissible in
evidence against the defendant at trial. If a defendant refuses to plead or stands
mute, or if the court refuses to accept a plea of guilty, a plea of not guilty shall be
entered. Before accepting a plea of guilty, the court shall require the defendant to
complete, insofar as applicable, and sign the appropriate form prescribed by the
Administrative Director of the Courts, which shall then be filed with the criminal
division manager's office.
6
court's previous indications of sentence, the court may vacate the plea or the
defendant shall be permitted to withdraw the plea.
(f) Conditional Pleas. With the approval of the court and the consent of the
prosecuting attorney, a defendant may enter a conditional plea of guilty reserving
on the record the right to appeal from the adverse determination of any specified
pretrial motion. If the defendant prevails on appeal, the defendant shall be afforded
the opportunity to withdraw his or her plea. Nothing in this rule shall be construed
as limiting the right of appeal provided for in R. 3:5-7(d).
(g) Plea Cut Off. After the pretrial conference has been conducted and a trial date
set, the court shall not accept negotiated pleas absent the approval of the Criminal
Presiding Judge based on a material change of circumstance, or the need to avoid a
protracted trial or a manifest injustice.
Supreme Court Commentary
A "material change of circumstance" means a change occurring after the
pretrial conference that strengthens or weakens the case of either the prosecution
or the defense sufficiently to warrant a change in their plea-bargaining position. It
may be either a change in fact or in the knowledge of counsel. Some typical
examples that may constitute material change of circumstance are when new
charges are filed after the plea cut-off has been imposed, a justifiable change of
attorney has occurred, a witness becomes no longer available, a mistrial or hung
jury occurs, or some evidence is newly discovered. However, a change that would
ordinarily have been anticipated by a reasonably competent prosecutor or defense
attorney, including some of the foregoing examples, is not material, nor is a change
that results from counsel's lack of ordinary
diligence. A "protracted trial" is one that will probably last two weeks or more. One
example of manifest injustice is a sexual assault case in which the victim is a child:
if the trial is likely to have a substantial adverse impact on the child, the court may
grant waiver. "Manifest injustice" does not exist simply because the parties are able
and willing to enter into a plea bargain on or before the date of trial.
A plea cut-off rule was recommended by twelve members of the Supreme
Court Criminal Practice Committee in a dissent filed with the 1992-94 Criminal
Practice Committee Recommendations on Rules Necessary to Implement the
Criminal Division Operating Standards. See 137 N.J.L.J. 54, 76-77. That
recommendation was adopted and further modified by the Supreme Court as set
forth above.
PLEA FORM in Criminal Indictable matters
You need to read, discuss with Your Attorney, then sign and initial each line
DEFENDANTS NAME
before Judge __________
1. List the charges to which you are pleading guilty:
Statutory Maximum
Ind./Acc./Comp. # Count Nature of Offense Degree Time Fine VCCB Assmt
Your total exposure as the result of this plea is: TOTAL __________
8
APPROPRIATE ANSWER
2 a. Did you commit the offense(s) to which you are pleading guilty? ___
2.b. Do you understand that before the judge can find you guilty, you will have to
tell the judge what you did that makes you guilty of the particular offense(s)? ___
3. Do you understand what the charges mean? ___
Do you understand that by pleading guilty you are giving up certain rights? Among
them are:
a. The right to a jury trial in which the State must prove you guilty beyond a
reasonable doubt?
b. The right to remain silent?
4. c. The right to confront the witnesses against you?
Do you understand that if you plead guilty:
a. You will have a criminal record?
b. Unless the plea agreement provides otherwise, you could be sentenced to serve
the maximum time in confinement, to pay the maximum fine and to pay the
maximum Violent Crimes Compensation Board Assessment?
c. You must pay a minimum Violent Crimes Compensation Board assessment of $50
($100 minimum if you are convicted of a crime of violence) for each count to which
you plead guilty? (Penalty is $30 if offense occurred between January 9, 1986 and
December 22, 1991 inclusive. $25 if offense occurred before January 1, 1986.)
5. d. If the offense occurred on or after February 1, 1993 but was before March 13,
1995, and you are being sentenced to probation or a State correctional facility, you
must pay a transaction fee of up to $1.00 for each occasion when a payment or
installment payment is made? If the offense occurred on or after March 13, 1995
and the sentence is to probation, or the sentence otherwise requires payments of
financial obligations to the probation division, you must pay a transaction fee of up
to $2.00 for each occasion when a payment or installment payment is made?
* VIOLENT CRIMES COMPENSATION BOARD ASSESSMENT
e. If the offense occurred on or after August 2, 1993 you must pay a $75 Safe
Neighborhood Services Fund assessment for each conviction?
f. If the offense occurred on or after January 5, 1994 and you agreeing sentenced to
probation, you must pay a fee of up to $25 per month for the term of probation?
g. If the crime occurred on or after January 9, 1997 you must pay a Law
Enforcement Officers Training and Equipment Fund penalty of $30?
9
5. h. You will be required to provide a DNA sample, which could be used by law
enforcement for the investigation of criminal activity, and pay for the cost of
testing?
6. Do you understand that the court could, in its discretion, impose a minimum time
in confinement to be served before you become eligible for parole, which period
could be as long as one half of the period of the custodial sentenced imposed?
Did you enter a plea of guilty to any charges that require a mandatory period of
parole ineligibility or a mandatory extended term?
7. a. If you are pleading guilty to such a charge, the minimum mandatory period of
parole ineligibility is years and months (fill in the number of years/months) and the
maximum period of parole ineligibility can be years and months (fill in the number
of years/months) and this period cannot be reduced by good time, work, or
minimum custody credits.
8. Are you pleading guilty to a crime that contains a presumption of imprisonment
which means that it is almost certain that you will go to state prison?
Are you presently on probation or parole?
9. a. Do you realize that a guilty plea may result in a violation of your probation or
parole?
[N/A]
Are you presently serving a custodial sentence on another charge?
10. a. Do you understand that a guilty plea may affect your parole eligibility?
[N/A]
11. Do you understand that if you have plead guilty to, or have been found guilty on
other charges, or are presently serving a custodial term and the plea agreement is
silent on the issue, the court may require that all sentences be made to run
consecutively?
[N/A]
List any charges the prosecutor has agreed to recommend for dismissal:
Ind./Acc./Compl. # Count Nature of Offense and Degree
12.
13. Specify any sentence the prosecutor has agreed to recommend:
Has the prosecutor promised that he or she will NOT:
a. Speak at sentencing?
b. Seek an extended term of confinement?
14. c. Seek a stipulation of parole ineligibility?
10
15. Are you aware that you must pay restitution if the court finds there is a victim
who has suffered a loss and if the court finds that you are able or will be able in the
future to pay restitution?
16. Do you understand that if you are a public office holder or employee, you can be
required to forfeit your office or job by virtue of your plea of guilty?
17. Do you understand that if you are not a United States citizen or national, you
may be deported by virtue of your plea of guilty?
18. Have you discussed with your attorney the legal doctrine of merger?
19. Are you giving up your right at sentence to argue that there are charges you
pleaded guilty to for which you cannot be given a separate sentence?
20. List any other promises or representations that have been made by you, the
prosecutor, your defense attorney, or anyone else as a part of this plea of guilty:
21. Have any promises other than those mentioned on this form, or any threats,
been made in order to cause you to plead guilty?
22. a. Do you understand that the judge is not bound by any promises or
recommendations of the prosecutor and that the judge has the right to reject the
plea before sentencing you and the right to impose a more severe sentence?
b. Do you understand that if the judge decides to impose a more severe sentence
than recommended by the prosecutor, that you may take back your plea?
c. Do you understand that if you are permitted to take back your plea of guilty
because of the judges sentence, that anything you say in furtherance of the guilty
plea cannot be used against you at trial?
23. Are you satisfied with the advice you have received from your lawyer?
24. Do you have any questions concerning this plea?
11