(dissenting). This is a companion case to State v. Gibson, 68 N. J. 499 (1975), decided today, and also presents the question whether a criminal defendant may be required to waive his right of appeal as part of a plea bargain.
On October 21, 1971, defendant Ernest Bryant was indicted together with Jacklyn Gibson for armed robbery in violation of N. J. S. A. 2A:141-1 and N. J. S. A. 2A:151-5. On January 27, 1972, an additional indictment was returned against Bryant charging him with malicious destruction of county property in violation of N. J. S. A. 2A:122-1. Finally, Bryant was also charged with sodomy contrary to N. J. S. A. 2A:143-1.1
Bryant pleaded not guilty to the robbery charges but was convicted with Gibson by a jury on December 16, 1971. On July 28, 1972, Bryant was sentenced to a term of ten to twelve years in the State Prison on the robbery conviction with a concurrent two to three year term for the armed feature.2
*539Some time after his conviction, Bryant entered into plea negotiations with the prosecutor’s office concerning the remaining two charges pending against him. Although the record does not disclose the date of the agreement and the terms of the bargain are not expressly set forth, testimony at Bryant’s subsequent post-conviction relief hearing disclosed the following:
It seems to me that Mr. Bryant was offered the same plea bargain. [as Gibson] — that is, he had outstanding charges pending at the time that he was sentenced for the conviction of armed robbery. The plea bargain was to the effect that if you do not take a direct appeal from this conviction, we will dismiss the outstanding charges you have against you; I think one of which was sodomy.3
On September 27, 1973, Bryant filed a petition for post-conviction relief, and on February 1, 1974, the application was heard by the same judge who had tried and sentenced both Gibson and Bryant. At his hearing, Bryant advanced several grounds for relief, including the claim that the plea bargain involving his right to appeal was illegal, and that he had not received proper credit for time served prior to sentencing. Only these two contentions are the subject of this appeal.
After considering Bryant’s arguments, the trial court denied his application for relief. With respect to the plea bargain, the trial court stated that the reasons for denying Gibson’s application were equally applicable to Bryant. The court then added:
The defendant is not a — in spite of Ms age — is not a novice in court proceedings. He bad been in court a number of times *540before; he was not appalled by being in the courtroom — he knew what was going on. Whatever plea bargains were conducted at that time, insofar as taking an appeal is concerned, or refraining from taking an appeal upon the dismissal of the other charges, certainly the state lived up to its part of the bargain. The defendant, if he made such a bargain, knew what bargain he was making; he’s not a novice. He’s not a little boy who doesn’t know what it’s all about. In spite of his age, he has more presence of mind in the courtroom and is less flustered by being in this criminal courtroom than most anybody I’ve seen in the courtroom — regardless of their age. And the application based on that basis is denied.
Tlie court also declined to grant Bryant relief on the time credit aspect of his petition since “he was in custody at the time; not as a result of any action by this court.”
Bryant’s petition was dismissed by order dated February 1, 1974, and on February 27, 1974 he filed a notice of. appeal to the Appellate Division. On February 19, 1975, we certified the appeal on our own motion pursuant to B. 2:2~1 for consideration along with State v. Gibson, supra, 67 N. J. 103 (1975).
Unlike my colleagues, I find the present record adequate to support a finding that the plea agreement entered into by . Bryant was substantially similar to the one involved in State v. Gibson, supra, and included a provision whereby Bryant agreed not to exercise his right of appeal. For the reasons given in my separate dissenting opinion in State v. Gibson, supra, I believe that all such agreements are illegal. While I do not reach the question of the voluntariness with which Bryant entered into the agreement, I find the observations concerning his supposed knowledge of the judicial process to be ingenuous. Not only do such observations ignore the youthful immaturity and fear which defendant brought to bear in his decision, but they fail to meet the inherent defects in the terms of the resulting agreement. Moreover, as the United States Supreme Court noted on another occasion when individual rights were in limbo, a waiver of basic rights should never be upheld on such evanescent considerations as the state of a defendant’s knowledge:
*541Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation, . . . [Miranda v. Arizona, 384 U. S. 436, 468-69, 86 S. Ct. 1602, 1625, 16 L. Ed. 2d 694, 720 (1966)].
In this regard, I similarly fail to see the utility of the provision of legal assistance when the plea bargain as to which the attorney is supposedly offering advice is in itself illegal. Moreover, the assistance of an attorney during the post-conviction period may be of little solace to a defendant who cannot appreciate the enormity of his decision until some time after it is made. Accordingly, I would vacate Bryant’s plea bargain and reinstate those charges which had been dismissed in exchange for Bryant’s waiver of his right of appeal.
Since, in my view, the appropriate remedy in these circumstances is granting Bryant leave to appeal his robbery conviction out of time, I also find no occasion to consider his second contention, e. g., that he was improperly denied time credit for time served while awaiting sentencing on his armed robbery conviction. This argument would be a more appropriate matter for the reviewing court on direct appeal.
I would reverse.
As in State v. Gibson, supra, the record does not indicate the date of the sodomy indictment.
Bryant has since been transferred to the New Jersey Correctional Institution at Bordentown.
The record conflicts as to tbe ultimate disposition of the remaining two charges. Apparently, the sodomy charge was dismissed on October 16, 1972. With respect to tbe malicious destruction of property charge, Bryant’s counsel states that both charges against him were dismissed pursuant to the plea bargain. The State, however, maintains that both Gibson and Bryant pleaded guilty to the latter charge.