(dissenting). The issue in this case is not defendant’s guilt or innocence. Were culpability in fact the critical concern, it is difficult to conceive of a situation in which a plea of guilt might be withdrawn, attended as it is by the safeguards imposed by R. 3:9-2 and R. 3:21— 4(b).
Rather than guilt or innocence, the issue is whether an accused may be held to a plea of guilt entered by him in the performance of a plea agreement induced as a result of misinformation supplied him as to the number of charges of which he might be convicted, the maximum sentences to which he would be subject were he convicted and the benefits he might expect to receive in return for the plea. Compare State v. Thomas, 61 N. J. 314, 320 (1972).
It is undisputed that, prior to entering into the plea agreement, defendant was mistakenly informed that he was subject to conviction not only of felony-murder but of armed robbery, the underlying felony, as well — notwithstanding that the well-settled law of this State was to the contrary. State v. Mowser, 92 N. J. L. 474 (E. & A. 1919); State v. Currie, 41 N. J. 531, 536-538 (1964); State v. Fitzsimmons, 60 N. J. Super. 230 (Cty. Ct. 1960), cert. den. 364 U. S. 875, 81 S. Ct. 120, 5 L. Ed. 2d 97 (1960). He was also advised that the maximum terms of incarcera^ tion authorized to be imposed were: felony murder, life imprisonment; robbery, 15 years; being armed, 10 years. *209In addition he was told that, should he be convicted of all the charges, the sanctions imposed on the underlying felony charges could be made to run consecutively to the sentence on the murder charge and to one another, and that the prosecutor intended to press for consecutive sentences.
Thus misled into believing that he faced a possible maximum sentence of life plus 25 years imprisonment, defendant undertook to plead non vult to the murder charge and guilty to the armed robbery charges in return for the undertaking of the prosecutor to recommend to the court a life sentence on the murder charge and that any sentences imposed on the armed robbery charges be made concurrent with the sentence imposed on the murder charge. Both defendant and the State performed their respective undertakings. The judge sentenced defendant to life imprisonment for the murder, and to terms of 10 to 12 years and 2 to 3 years, respectively, on the charges of robbery, while armed, the latter to be served concurrently with the sentence of life imprisonment. On appeal the convictions on the armed robbery charges were vacated; the sentence of life imprisonment for murder was affirmed.
Having negotiated a waiver of his constitutional protections in exchange for what he misconceived to be lenient treatment, defendant instead received the most stringent sentence possible. A plea agreement founded upon such a false premise is no agreement at all, however unintentional the misinformation. Consideration flowed only in one direction —• from defendant to the State. There was a complete absence of consideration moving from the State to defendant.
Whatever the disparate views as to the propriety, desirability and effectiveness of plea negotiation, the process has been approved and is in use in a number of jurisdictions, including New Jersey. In all of these jurisdictions it is recognized that scrupulous fairness both to defendant and to the State is basic to the proper administration of plea *210negotiation, procedures. Santobello v. New York, 404 U. S. 257, 261, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Taylor, 49 N. J. 440, 455-456 (1967). “If plea bargaining is to fulfill its intended purpose, it must be conducted fairly on both sides and the results must not disappoint the reasonable expectations of either.” State v. Thomas, 61 N. J. 314, 321 (1972). See Newman, Convictions: The Determination of Quilt or Innocence Without Trial, 32-56 (1966); Goldstein, “Eor Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain,” 84 Yale L. J. 683 (1975); A. B. A. Minimum Standards of Criminal Justice: Pleas of Guilty (1968), Part III.
There can be little question but that, from the perspective of an accused, the principal purpose (if not the sole end) of plea negotiation is leniency of treatment, whether by sentence concession, charge reductions or charge dismissals. The accused negotiates for concessions acceptable to him which, when agreed upon by both the government and the accused, form the inducement for his undertaking to plead guilty. Where, as here, defendant’s negotiations are predicated upon erroneous information as to the maximum sanctions that could be imposed upon conviction (25 years imprisonment in excess of the maximum actually authorized), the leniency of treatment for which he negotiated as the quid pro quo of his pleas was illusory indeed.
Had defendant been aware that a conviction on the murder charge would have barred conviction on the armed robbery charges and that, in such event, the maximum sentence of incarceration that could have been imposed was life imprisonment, he would have negotiated for some sentence less than life imprisonment in exchange for his non vult plea. Based as it was on the erroneous information supplied by counsel, the plea agreement in fact negotiated fell far short of fulfilling defendant’s reasonable expecta*211tions — then only 21 years of age and without any prior adult criminal record.
Even without regard to the serious question of effective representation by counsel, the waiver by defendant of his constitutional rights to trial, to confront the witnesses against him, and to refrain from self-incrimination, effected by the entry of his ploas, hardly may he said to have been either knowing or intelligent. It was instead the product of misinformation and misunderstanding. Fairness requires that defendant he relieved of his undertaking and the stains quo be restored by permitting him to withdraw his plea. To do otherwise is to stultify the law and to make the court, prosecutor and defense counsel party to deception (albeit unintentional), unfair to defendant and unacceptable to any system of justice that is truly just. State v. Thomas, supra; Cooks v. United States, 461 F. 2d 530 (5 Cir. 1972); Moore v. State, 54 Ala. App. 463, 309 So. 2d 500 (Ala. Cr. App., 1975). See, generally, Annotation, “Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof,” 97 A. L. R. 2d 549 (1964). Compare State v. Rhein, 117 N. J. Super. 112 (App. Div. 1971).
Under such circumstances, prejudice or lack of prejudice to the State by withdrawal of the plea is not and should not he a controlling consideration. See State v. Thomas, supra.1 In any event, there would appear to be no prejudice to the State were the plea withdrawn. All of the evidence and witnesses available to the State at the time of the entry of the *212pleas are still available. Indeed, the chief of detectives was unable to point to any prejudice other than the loss of “control” over the witness DeShields — a codefendant who, in consideration of a sentence of 8 to 10 years, agreed to testify against this defendant. That claim of prejudice is speculative at best. It presupposes that the witness might be uncooperative or might have a memory lapse even though there had been no communication with him, and disregards the normal “control” that the State has over any witness — here reinforced by the signed statement of DeShields, as well as the transcript of the statements made by him on the occasions of his plea and his sentencing.
Be this as it may and even assuming that prejudice to the State would result from withdrawal of the plea, whatever that prejudice may be it is the product solely of the passage of time. And that lapse of time was occasioned by the delay in discovering that defendant had been misinformed as to matters critical to a knowing and intelligent decision and the delay necessarily incident to these curative proceedings — for which defendant was in no way responsible or chargeable.
Eor these reasons I would reverse the order of the Law Division and would (1) permit defendant to withdraw his plea of non vult to the murder charge, (2) reinstate the charges of robbery, while armed, (3) direct that defendant plead anew to all three charges, and (4) direct that all three charges proceed to trial expeditiously, unless earlier disposed of by plea.
In Thomas the court held the State bound by a plea agreement whereby defendant pleaded guilty to atrocious assault and battery some three months before the victim died from injuries received from the assault, which occurred during the theft of her purse — and dismissed the subsequent murder indictment notwithstanding there was no bar to the murder indictment by reason of double jeopardy and despite the circumstanc that, at the time of the plea, defendant was well aware (but the State was unaware) that the death of the victim was both likely and imminent.