The Appellate Division continued: As recognized by the Court in State v. Vasquez, “when the Legislature chooses to prescribe a mandatory sentence for certain offenses, it is strongly motivated by substantial law enforcement concerns. When that intent and expression are clear and unmistakable, the Court will construe such sentencing schemes to effectuate fully their obvious penal purposes.” We view the intent and expression of the Legislature in enacting the JLA to be clear and unmistakable-to impose substantial mandatory minimum sentences with no parole eligibility for this extremely serious crime perpetrated against children.
We recognize that “while it is within the sole power of the legislature to determine what acts constitute crime and to prescribe punishment for those acts, it cannot give the prosecuting attorney the authority, after a conviction, to decide what the punishment shall be. That is a judicial function. The parties to a plea agreement can only agree to a sentence that the prosecutor will recommend to the court and are not empowered to negotiate a sentence which is binding on the court. The determination of a criminal sentence is always and solely committed to the discretion of the trial court to be exercised within the standards prescribed by the Code of Criminal Justice. Hence, separate prosecutorial discretion cannot be superimposed on the court’s sentencing discretion.”
With these principles in mind, the issue becomes whether N.J.S.A. 2C:14-2 “preserves the ultimate sentencing decision to the court rather than the prosecutor.” We conclude the trial court retains the ultimate sentencing decision when sentencing under the JLA because it “may accept the negotiated plea agreement” at its discretion. Here, the word “may” is used permissively. The trial court may reject the plea “if at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement.” Consequently, the plea agreement is not binding on the trial court, as the statute “reserves to the judiciary the power to approve or reject any agreement between the defendant and the State.” For this reason, defendant’s separation of powers argument fails.
There is no rule that requires the prosecutor to offer a plea-bargain in any case. If the prosecutor is free to make no offer, the prosecutor should be free to make a harsh offer.
