In a case titled, State v. Veney, the Appellate Division was asked to address the question of whether the government could rescind a plea offer where it made a mistake in determining the seriousness of the crime committed by the defendant, as well as his available sentencing exposure.  In that case, the defendant was charged with, among other things, possession of cocaine with the intent to distribute and possession of cocaine with intent to distribute within 1000 feet of a school.

Ultimately, a plea agreement produced an arrangement where the defendant agreed to plea to a third degree school zone offense with a recommendation of a three year term of imprisonment, subject to a 22 month parole disqualifier.  All of the other charges where dismissed.

Before sentencing, however, the government sought to vacate the agreement.  It contended that the lab report produced information that indicated that the defendant had committed a second degree offense and that it had miscalculated the Brimage Guideline’s Worksheet.  The trial court denied the application and the government appealed.  Notwithstanding, the defendant commenced serving his custodial term.

On appeal, the court first observed that as a result of the defendant’s incarceration, the state’s appeal was barred by principles of double jeopardy and that was so, even though the government contended that the sentence was illegal.  On this contention, the court observed that the sentence was not illegal because New Jersey’s Criminal Code allowed defendant to plea to a lesser term and offense under a negotiated plea agreement. 

In closing its thoughts, the Appellate Division noted that in the future, if a trial judge learns that the  government made an honest mistake in determining a plea offer, the government should be afforded the opportunity to withdraw the offer.  That type of request, however, must be made before sentencing.