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CrimDefense, CriminalDefenseAtty
Category: Criminal Law
Satisfied Customers: 27591
Experience:  10+ years defending Misdemeanor and Felony cases.
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This case is in NJ. I made a plea deal with the prosecution

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This case is in NJ. I made a plea deal with the prosecution in September 2013. Under the terms of the plea, we agreed to reduce the charge for a 2nd degree felony (bad check which was in a business situation) to a DP. Sentencing is in August 2014. Prior to sentencing, I am suppossed to make restitution.

The prosecution failed to disclose to us that the only witness in the case (and effectively their whole case) passed away in June 2013. Had we known, we could have moved for dismissal and would have most probably had our motion granted. The prosecution was aware that the witness had passed away and failed to disclose is to us.

My question is in two parts:-

1) Based on the above information, can the plea be taken back (sentencing has not taken place)?. Is this prosecutorial misconduct?

2) If I default on the plea (i.e. do not make restitution), what remedies does the judge have?. Can he revoke the plea and set th case for trial or can he just sentence me. Which one is more likely.

Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good afternoon. I certainly understand the situation and your concern. How did you find out about this person passing away? Also, did the plea agreement which you signed and entered into state what the consequences were of failing to comply? Is the only thing you have to do is pay restitution?
Customer: replied 3 years ago.

I found out about his passing away a few days ago by googling his name.


In the NJ Judiciary plea form that I signed, it says "If the defendant does not make restitution payments, State has the right to withdraw from Plea Agreement"


Yes. Restitution is the only thing I have to do before sentencing.

It would only be misconduct if the State knew about his passing and withheld this information from you, acting in bad faith. If you truly believe that the victim is the only piece of evidence which they have which could lead to a conviction, then you may want to try to either vacate the plea and see if the Judge would accept it, based upon this newly discovered evidence or in the alternative, fail to comply with the plea agreement and go before the Judge. If the State does withdraw the plea, you just need to make sure that you still have the option to go to trial or if there is an alternative sentence which would just be imposed.

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Customer: replied 3 years ago.

The State 100% knew that the witness had passed away and we can prove that. My question is if we present this evidence to the judge what is the likelihood that he will vacate the plea?

If we can prove that the prosecutor knew 100% that the witness had passed away and we can establish that this was the jist of the case, does this rise to prosecutorial misconduct?

I think there would be good cause presented to vacate the plea. As far as misconduct, the State may have decided to proceed anyway, based upon the evidence. This certainly needed to be disclosed, so you would want to show that they 100% knew.
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