STATE OF NEW JERSEY VS. AHMAD J. MUHAMMAD (17-07-0820, 18-05-0743, AND 18-05-0744, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3856-18
A-5278-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AHMAD J. MUHAMMAD,
Defendant-Appellant.
_______________________
STATE OF NEW JERSEY,
Plaintiff-Appellant/
Cross-Respondent,
v.
AHMAD J. MUHAMMAD,
Defendant-Respondent/
Cross-Appellant.
________________________
Argued (A-5278-18) and Submitted (A-3856-18)1
January 11, 2021 – Decided March 12, 2021
Before Judges Sabatino, Gooden Brown, and
DeAlmeida on A-5278-18.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 17-07-
0820, 18-05-0743 and 18-05-0744.
John P. Flynn, Assistant Deputy Public Defender,
argued the cause for appellant/cross-appellant (Joseph
E. Krakora, Public Defender, attorney; John P. Flynn,
of counsel and on the briefs).
Joie D. Piderit, Assistant Prosecutor, argued the cause
for respondent/cross-respondent (Yolanda Ciccone,
Middlesex County Prosecutor, attorney; Eric M.
Snyder, Assistant Prosecutor, of counsel and on the
brief; Joie D. Piderit, on the briefs).
PER CURIAM
These back-to-back appeals and cross-appeal, which we consolidate solely
for purposes of issuing a single opinion, involve defendant's entry of guilty pleas
to offenses charged in unrelated indictments. In Docket No. A-5278-18, the
State appeals from the July 23, 2019 Law Division order denying its motion to
reconsider enforcing a plea agreement the State rescinded prior to its entry on
the record, which agreement involved the dismissal of charges contained in
1
A-3856-18 was submitted before Judges Sabatino and Gooden Brown only.
A-3856-18
2
Indictment Nos. 18-05-0743 and 18-05-0744 (743 and 744). In that appeal, the
State raises the following point for our consideration:
BECAUSE NEW JERSEY COURT RULE 3:9-3(C)
EXPLICITLY PROHIBITS A COURT FROM
DISMISSING ANY COUNTS OR INDICTMENTS
WITHOUT THE CONSENT OF THE PROSECUTOR,
THE TRIAL COURT ABUSED ITS DISCRETION BY
ENFORCING A PLEA OFFER THAT WAS
EXPLICITLY WITHDRAWN WEEKS PRIOR TO
BEING ENTERED AND DISMISSING AN ENTIRE
INDICTMENT WITHOUT THE STATE'S CONSENT.
In the cross-appeal in Docket No. 5278-18, defendant appeals from the
motion judge's December 11, 2018 decision denying his motion to suppress the
evidence seized following a motor vehicle stop, which evidence formed the
evidential basis for 743 and 744. In that cross-appeal, defendant raises the
following point for our consideration:
ALL THE EVIDENCE SEIZED FROM THE CAR
SHOULD HAVE BEEN SUPPRESSED BECAUSE
THE OFFICER IMPERMISSIBLY EXTENDED THE
SCOPE OF THE TRAFFIC STOP BEFORE
ALLEGEDLY SEEING A GUN.
In Docket No. A-3856-18, defendant appeals from the December 13, 2018
Law Division order denying his pre-sentence motion to withdraw his guilty plea
and the April 4, 2019 conforming judgment of conviction (JOC) imposing the
A-3856-18
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negotiated sentence in connection with Indictment Nos. 17-07-0820 and 17-07-
0821. Defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING [DEFENDANT]'S MOTION TO
WITHDRAW HIS GUILTY PLEA PRIOR TO
SENTENCING BECAUSE WITHDRAWAL WAS IN
THE "INTERESTS OF JUSTICE" UNDER RULE 3:9-
3(E).
POINT II
IF [DEFENDANT]'S PLEA IS NOT VACATED, THE
MATTER SHOULD BE REMANDED FOR
RESENTENCING BECAUSE THE COURT
IGNORED MITIGATING FACTORS PRESENT IN
THE RECORD AND INAPPROPRIATELY
IMPOSED CONSECUTIVE SENTENCES FOR
OFFENSES ARISING FROM THE SAME
CONDUCT.
For the reasons that follow, in Docket No. A-5278-18, we affirm in both the
appeal and the cross-appeal. In Docket No. A-3856-18, we affirm defendant's
convictions and sentence but remand solely for correction of the JOC.
I.
A. Docket No. A-3856-18 Overview
A-3856-18
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In Docket No. A-3856-18, on July 20, 2017, defendant was charged in
Middlesex County Indictment No. 17-07-0820 with first-degree maintaining a
controlled dangerous substance (CDS) production facility, N.J.S.A. 2C:35 -4
(count one); third-degree fortifying a CDS production facility, N.J.S.A. 2C:35-
4.1(c) (count two); third-degree possession of CDS, namely heroin, with intent
to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count three); third-degree
possession of CDS, namely marijuana, with intent to distribute, N.J.S.A. 2C:35 -
5(a)(1), (b)(11) (count four); fourth-degree possession of drug paraphernalia
with intent to distribute, N.J.S.A. 2C:36-3 (count five); three counts of second-
degree possession of a firearm during a CDS offense, N.J.S.A. 2C:39 -4.1(a)
(counts six, seven, and eight); and three counts of second-degree possession of
a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts nine, ten, and
eleven). On the same date, July 20, 2017, defendant was charged in Middlesex
County Indictment No. 17-07-0821 with three counts of second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(b), (counts one, two, and three),
arising from the same incident.
The charges stemmed from the execution of a search warrant on July 7,
2016, for defendant's person and residence located in Piscataway. The search
warrant affidavit submitted in support of the application averred that there was
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"probable cause to believe" that defendant was "utilizing the [Piscataway]
premises . . . to store and distribute . . . methylenedioxymethamphetamine
(MDMA)" and sought authorization to seize "[CDS], monies, paperwork,
paraphernalia" and other items related to narcotics trafficking. In support, the
affidavit detailed an extensive undercover investigation initiated after the affiant
received a tip from a confidential informant (CI) about defendant's drug dealing
activities.
The affidavit specified that although the CI was "providing information to
[law] enforcement for the first time," during the course of the investigation, the
CI purchased suspected MDMA "directly from [defendant]" at the residence on
three separate occasions. The affiant sought a "no-knock warrant" due to "an
elevated risk to officer safety" based on defendant's "extensive criminal history"
which included "firearms/weapons related offenses," the CI's observation of
defendant repeatedly "display[ing] a handgun" at the residence, and the presence
of "surveillance cameras on the exterior of the residence and front door" to
detect people approaching.
The search resulted in the seizure of approximately two-and-one-half
grams of heroin; over one ounce of marijuana; a .40 caliber handgun with two
magazines; a .44 caliber revolver; a 12-gauge shotgun; a stun gun; multiple
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boxes of ammunition; a bulletproof vest; assorted drug paraphernalia, including
packaging materials, heat sealers, digital scales, a blender; and mail addressed
to defendant at the Piscataway residence. No MDMA was recovered.
Defendant was arrested and gave an incriminating statement after he was
administered Miranda2 warnings. In the statement, defendant admitted selling
drugs at the Piscataway residence, but not as much as he had in the past. He
acknowledged possessing all of the contraband seized from the residence and
explained the source of some of the items, particularly the firearms, their
location in the house, and the extent of his drug inventory. He stated he moved
out of his parents' house and had been renting and living at the Piscataway
residence since "December" because he needed more room with his other
businesses.3 Defendant expressly exonerated the other occupants of the
residence of any wrongdoing, specifically his brother and his roommate.
On February 9, 2018, defendant entered a negotiated guilty plea to three
counts of Indictment No. 17-07-0820: maintaining a CDS production facility
(count one); fortifying a CDS production facility (count two); and possession of
a firearm for an unlawful purpose (count nine). Under the terms of the plea
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Defendant stated that he had a T-shirt, a photography, and a music business.
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agreement, the State agreed to recommend an aggregate sentence of seventeen
years' imprisonment, with nine-and-one-half years of parole ineligibility, and
move to dismiss the remaining counts of Indictment No. 17-07-0820 as well as
Indictment No. 17-07-0821 in its entirety. After entering the plea, defendant,
who was not detained at the time, requested an extended sentencing date to get
his affairs in order. The trial judge granted defendant's request and scheduled
sentencing for June 1, 2018.
However, on March 12, 2018, defendant filed a pro se motion and
supporting brief to withdraw his guilty pleas, claiming "ineffective counsel, lack
of evidence[,] and probable cause among other things." Notably, in his pro se
submission, defendant did not assert his innocence. Defendant was assigned
new counsel who submitted a brief and supporting certification "assert[ing
defendant's] innocence" and detailing legal challenges and defenses overlooked
by prior counsel but uncovered during her investigation of the case.
Specifically, defense counsel explained that defendant had a reasonable basis to
challenge the probable cause underlying the issuance of the search warrant based
on the unreliability of the CI and the absence of independent corroboration.
Further, according to defense counsel, the fact that defendant did not own the
residence as well as the fact that other residents and business invitees had
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"access to the premises where drugs and weapons were located" would "support
a defense to the charges."
Additionally, defense counsel asserted defendant had "a reasonable basis"
to "challenge his understanding of the [Miranda] warnings" that preceded his
confession as well as the knowing and intelligent nature of his guilty plea based
on "a learning disability that impacts [defendant's] ability to comprehend and
process information appropriately." In support, defense counsel provided a June
12, 1996 neuropsychological examination conducted when defendant was
twenty-two years old in connection with his participation in the intensive
supervision program (ISP) on unrelated charges. While the evaluation found
defendant's "general reasoning and thinking capacity [to be] good," defendant
was diagnosed with a "Learning Disorder Not Otherwise Specified" based on a
"[v]erbal-memory deficit."
Following oral argument, the judge denied the motion and entered a
memorializing order on December 13, 2018. In an oral opinion rendered on
December 11, 2018, the judge analyzed each of the four factors enunciated in
State v. Slater, 198 N.J. 145, 157-58 (2009): "(1) whether the defendant has
asserted a colorable claim of innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4)
A-3856-18
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whether withdrawal would result in unfair prejudice to the State or unfai r
advantage to the accused."
As to the first Slater factor, after reviewing the "statements . . . made by
other people in support of th[e] application," the judge determined there was no
"competent evidence" establishing that other people had the ability to exercise
"ownership or . . . control" over the contraband. Thus, the judge rejected
defendant's claim that the "mere presence" of other individuals at the residence
amounted to a colorable claim of innocence. The judge also noted that "[c]ourts
generally evaluate a colorable claim of innocence by determining whether it
raises a legitimate dispute for the jury to decide," not legal issues such as those
implicated in defendant's challenge to the search warrant or the voluntariness of
his confession.
Turning to the second Slater factor, the judge acknowledged that
"defendant would likely satisfy this factor if he [could] make a plausible
showing of a valid defense against the charges and credibly explain why an
otherwise legitimate defense was overlooked during the plea colloquy."
However, the judge rejected defendant's claim that his challenge to the search
warrant satisfied the second prong, explaining that the supporting affidavit
detailing "three controlled buys" by the CI directly from defendant established
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the requisite probable cause for the issuance of the warrant. See State v.
Sullivan, 169 N.J. 204, 217 (2001) ("The two controlled drug purchases, as well
as the additional police corroboration of the informant's tip, sufficiently
demonstrated probable cause . . . to obtain the [search] warrant."); State v.
Keyes, 184 N.J. 541, 556 (2005) ("Although no corroborating fact, by itself,
conclusively establishes probable cause, a successful controlled buy typically
will be persuasive evidence in establishing probable cause.") (citations and
internal quotation marks omitted). Moreover, according to the judge,
defendant's two-year delay in challenging the search warrant weighed against
him.
As to the third Slater factor, the judge acknowledged that "this factor
should [not] be given great weight in the balanc[ing] . . . process" because "the
vast majority of criminal cases are resolved through plea bargains."
Additionally, the judge was satisfied that "the plea was entered into freely,
knowingly, voluntarily, and intelligently" and rejected defendant's contention
that the 1996 neuropsychological examination undermined the validity of
defendant's plea. On the contrary, the judge explained that based on his "clear
recollection that . . . defendant understood everything that was going on during
the plea" as well as an "independent evaluation of the [plea] transcript,"
A-3856-18
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a [twenty]-year-old evaluation [was] not adequate to
overcome the presumption that the [c]ourt's
determination based on its ability to observe
. . . defendant enter the plea in February of 2018 and
making the determination that it was voluntarily made
[was] incorrect. More importantly, . . . defendant's
own statement at the plea hearing show[s] that he
adequately understood the nature of the plea and the
proceedings.
Regarding the fourth and final Slater factor, because the judge could not
find "that there [would be] any meaningful prejudice to the State or . . . unfair
advantage to . . . defendant if the plea was vacated," the judge determined "the
fourth prong . . . would weigh in [defendant's] favor." Nonetheless, "based on
the totality of the circumstances," the judge concluded "that the reasons to not
vacate the plea . . . far outweigh[ed] the reasons advanced to vacate the plea."
"Ultimately, '[the judge] believe[d] that th[e] application to vacate the plea [was]
nothing more than . . . buyer's remorse.'"
Following the denial of the plea withdrawal motion, over defense
counsel's objection, the prosecutor requested that defendant be sentenced that
day. The judge denied the prosecutor's request and postponed the sentencing to
allow defense counsel to submit a sentencing memo. On March 25, 2019,
defendant was sentenced in accordance with the plea agreement, and this appeal
followed.
A-3856-18
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B. Slater Issues
On appeal, defendant argues the judge mistakenly exercised his discretion
in "weigh[ing] factors one and two" of the Slater test. According to defendant,
"there were viable grounds to challenge the probable cause supporting the search
warrant" and "seek suppression of all the evidence," as well as "evidence that
other people . . . liv[ed] in" and "visited the [Piscataway] residence" to establish
"shared access" where "[s]ome of the contraband was recovered." Defendant
continues that "[w]hen judged under the liberal standard governing pre-
sentencing withdrawal motions, these defenses were colorable" and his
ineffective assistance of counsel claim "credibly showed why these potential
defenses were overlooked" by prior counsel.
Unquestionably, "[a] more relaxed standard applies to plea-withdrawal
motions made before sentencing" than after sentencing. State v. Munroe, 210
N.J. 429, 441 (2012). "Before sentencing, a 'defendant shall be permitted to
withdraw' a guilty plea if 'the interests of justice would not be served by
effectuating the [plea] agreement.'" Ibid. (alteration in original) (quoting R. 3:9-
3(e)). "In such cases, 'courts are to exercise their discretion liberally to allow
A-3856-18
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plea withdrawals,'" and "[i]n a close case, the 'scales should usually tip in favor
of defendant.'" Ibid. (quoting Slater, 198 N.J. at 156).
"However, [l]iberality in exercising discretion does not mean an
abdication of all discretion, and, accordingly, any plea-withdrawal motion
requires a fact-specific analysis[.]" Id. at 441-42 (first alteration in original)
(citations and internal quotation marks omitted). Thus, "[o]n appellate review,
the issue is whether the trial court properly exercised its discretion at the time it
denied the withdrawal motion," and an abuse of discretion only arises "when
'there has been a clear error of judgment.'" Id. at 443, 448 (quoting State v.
Koedatich, 112 N.J. 225, 313 (1988)).
In a plea withdrawal motion, the defendant bears the burden of
establishing and demonstrating "'a plausible basis for his request' and a good-
faith basis for 'asserting a defense on the merits.'" Id. at 442 (quoting Slater,
198 N.J. at 156). In evaluating the first Slater factor, "[a] colorable claim of
innocence is one that rests on 'particular, plausible facts' that, if proven in court,
would lead a reasonable factfinder to determine the claim is meritorious."
Munroe, 210 N.J. at 442 (quoting Slater, 198 N.J. at 158-59). While "[i]t is
more than '[a] bare assertion of innocence,' . . . the motion judge need not be
convinced that it is a winning argument because, in the end, legitimate factual
A-3856-18
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disputes must be resolved by the jury." Ibid. (quoting Slater, 198 N.J. at 158).
However, the trial judge must still distinguish between "a colorable claim of
innocence" and a "bald assertion." State v. Lipa, 219 N.J. 323, 333-34 (2014).
Doing so requires a judge to engage in some weighing of evidence to determine
whether facts are "credible" or "plausible." Ibid.As to the second Slater factor, "[t]he nature and strength of a defendant's
reasons for withdrawal of a plea will necessarily depend on the circumstances
peculiar to the case." Munroe, 210 N.J. at 442. "A defendant will likely satisfy
this factor if he can make a 'plausible showing of a valid defense against the
charges' and credibly explain why an otherwise legitimate defense was
overlooked during the plea colloquy." Id. at 443 (quoting Slater, 198 N.J. at
159-60).
A court should evaluate the validity of the reasons
given for a plea withdrawal with realism, understanding
that some defendants will be attempting to game the
system, but not with skepticism, for the ultimate goal is
to ensure that legitimate disputes about the guilt or
innocence of a criminal defendant are decided by a jury.
[Ibid.]
We divine certain principles applicable to the analysis of the first and
second Slater factors from our Supreme Court's decisions in Slater, Munroe, and
Lipa, where the Court reversed the trial courts' decisions denying the defendants'
A-3856-18
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respective pre-sentence plea withdrawal motions. In Slater, the defendant pled
guilty to possession with intent to distribute cocaine after police discovered
drugs and a scale in a motel room he occupied. 198 N.J. at 152. Less than two
weeks later, Slater sought to withdraw his plea, asserting that he had not rented
the motel room; he was just visiting; he was unaware the drugs were in the room;
and the drugs did not belong to him. Id. at 152-53. Slater's account was
supported by the record evidence that the police approached the motel room in
search of two white men who allegedly possessed cocaine, but Slater was
African American. Id. at 151-52, 163. Also, the State failed to disprove Slater's
claim that he did not rent the room and was only visiting. Additionally, Slater
asserted his innocence claim both in his pro se plea withdrawal motion and in
remarks he made for inclusion in the presentence report. Id. at 163.4
In Munroe, the defendant pled guilty to aggravated manslaughter but
supported a self-defense claim with evidence that the victim, "who had robbed
him in the past," threatened him with a knife and a parked car blocked the
defendant's retreat. 210 N.J. at 445. A police report confirmed that the deceased
4
Here, although defendant expressed his desire "to make a motion to withdraw
his plea" in the presentence report, he never expressly asserted his innocence to
the charges. While he admitted being a "felon" and having "a vest, holster and
gun in a book bag," he claimed "he was coerced into saying things about the
manufacturing facility and fortified premises."
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victim was found with a box cutter in his hand, and the State presented no
witness statements contradicting Munroe's claim he had no room to retreat. Id.
at 445-47. The Court found Munroe's admission in his initial plea colloquy that
he shot the victim at close range was not inconsistent with his later claim of self -
defense. Id. at 445. "[N]ot a word that defendant uttered in court during his
plea colloquy was inconsistent with either the account that he gave to t he
probation officer who prepared his presentence report or his sworn testimony
when he moved to withdraw his guilty plea." Ibid.
In Lipa, the defendant pled guilty to first-degree aggravated sexual
assault. Id. at 326. To support his plea withdrawal motion, he presented
photographic evidence of his knee, which was operated on around the time the
crime was committed, as well as photographs of the exterior of the subject
building, to establish that it was impossible for him to climb into the victim's
second-floor bedroom window, as she had alleged. Id. at 333. The Court noted
that because the victim asserted that Lipa "was inebriated" when he committed
the offenses, "[h]is condition thus would have further hampered his ability to
commit the assault in the manner [the victim] described." Ibid. Lipa also
presented evidence that "a [Division of Youth & Family Services] investigation
A-3856-18
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found that [the victim's] previous accusations of sexual assault against [the]
defendant and a family friend lacked merit." Ibid.
"[M]indful that the admissibility and veracity of [the] defendant's
evidence ha[d] not been tested," the Court determined "the specific facts that
[the] defendant asserted could provide a plausible basis to impeach [the victim's]
testimony and cause a reasonable jury to find reasonable doubt as to [the]
defendant's guilt." Id. at 334. Further, the Court found that the defendant
"presented sufficient reasons to support his request for withdrawal" by
"claim[ing] that his counsel induced him to plead guilty" and by "offer[ing]
some evidence that contradicts the State's charges." Id. at 335.
We draw from these cases the principle that in order to establish the first
Slater factor, evidence corroborating a defendant's claim of innocence must
support the claim's plausibility, as does the State's failure to present evidence on
easily verifiable facts that would undermine the defendant's innocence claims.
Through this lens, we are satisfied defendant's proffer fails to establish the
"colorable claim of innocence" standard countenanced in Slater, Munroe, and
Lipa. Defendant also failed to establish the second Slater factor, which
"dovetails with his assertion of innocence," and requires a "showing of a valid
defense against the charges." 198 N.J at 159-60, 163. We conclude substantially
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for the sound reasons expressed by the judge in his oral decision that defendan t
failed to show that enforcement of the plea agreement would be contrary to the
interests of justice. Hence, the judge did not abuse his discretion in rejecting
defendant's request to withdraw his guilty plea.
C. Sentencing Arguments
In the alternative, defendant argues that his sentence, which was the
sentence recommended under the terms of the plea agreement, should be reduced
because the judge ignored "mitigating factors supported by the record" and
failed to "address[] the Yarbough[5] factors when imposing consecutive
sentences."
We review sentences "in accordance with a deferential standard," State v.
Fuentes, 217 N.J. 57, 70 (2014), and "note that appellate courts should not
'substitute their judgment for those of our sentencing courts.'" State v. Cuff, 239
N.J. 321, 347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we
will
affirm the sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating
factors found by the sentencing court were not based
upon competent and credible evidence in the record; or
(3) "the application of the guidelines to the facts of [the]
5
State v. Yarbough, 100 N.J. 627 (1985).
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case makes the sentence clearly unreasonable so as to
shock the judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]
"While the sentence imposed must be a lawful one, the court's decision to impose
a sentence in accordance with the plea agreement should be given great respect,
since a 'presumption of reasonableness . . . attaches to criminal sentences
imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71
(App. Div. 1996) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)).
"The plea agreement can appropriately be considered and weighed in the
decision to impose consecutive sentences." Ibid. "That said, a trial court is
expected to give 'a separate statement of reasons for its decision to impose
consecutive sentences.'" State v. Molina, 168 N.J. 436, 442 (2001) (quoting
State v. Miller, 108 N.J. 112, 122 (1987)). Certain considerations govern a trial
court's decision to impose consecutive sentences, including whether or not:
(a) the crimes and their objectives were predominantly
independent of each other;
(b) the crimes involved separate acts of violence or
threats of violence;
(c) the crimes were committed at different times or
separate places, rather than being committed so closely
in time and place as to indicate a single period of
aberrant behavior;
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(d) any of the crimes involved multiple victims; [and]
(e) the convictions for which the sentences are to be
imposed are numerous.
[State v. Molina, 168 N.J. 436, 441-42 (2001) (quoting
Yarbough, 100 N.J. at 644).]
Here, the judge found aggravating factors three, six, and nine based on
defendant's extensive prior criminal record in both New Jersey and New York.
See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that . . . defendant will commit another
offense"); N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of . . . defendant's prior criminal
record and the seriousness of the offenses of which he has been convicted"); and
N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring . . . defendant and others from
violating the law"). According to the judge, defendant's record exhibited
"criminal behavior . . . throughout his adult life," including three indictable and
two municipal court convictions in New Jersey alone for both violent and non-
violent offenses for which defendant served multiple prison terms.6
The judge also determined there were no mitigating factors, rejecting
defendant's reliance on mitigating factors four, nine, and eleven. See N.J.S.A.
6
The State "bargained away its right to seek a mandatory extended term [under
N.J.S.A. 2C:43-6(f)] as a part of its negotiated plea agreement with defendant."
State v. Courtney, 243 N.J. 77, 88-89 (2020).
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2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or justify the
defendant’s conduct, though failing to establish a defense"); N.J.S.A. 2C:44-
1(b)(9) ("[t]he character and attitude of the defendant indicate that the defendant
is unlikely to commit another offense"); and N.J.S.A. 2C:44-1(b)(11) ("[t]he
imprisonment of the defendant would entail excessive hardship to the
defendant").
Notwithstanding the overwhelming aggravating factors and dearth of
mitigating factors, the judge found that the plea agreement was "fair and
reasonable" and sentenced defendant in accordance with its terms. The judge
imposed a twelve-year term of imprisonment, with a seventy-two-month period
of parole ineligibility, on count one; a consecutive five-year term of
imprisonment with a forty-two-month period of parole ineligibility, on count
nine;7 and a concurrent flat five-year term of imprisonment on count three.
In imposing a consecutive sentence, the judge explained:
As to [c]ount [nine], the sentence is to be
consecutive . . . . [I]n this case, [c]ount [one] deals with
the issue of packaging and distribution of a [CDS]. The
harm to society is obviously the continued illegal
proliferation of drugs and has a significant negative
impact on society.
7
The sentence imposed on count nine was the minimum legally authorized
sentence. See N.J.S.A. 2C:43-6(c).
A-3856-18
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As to [c]ount [nine], that deals with handguns and
this crime deals with the danger that is posed to society
for the possession of handguns by persons not trained
to handle a handgun or not licensed to possess a
handgun. So, the harm to society between [c]ount [one]
and [c]ount [nine] are significantly different. The dates
of the offense[s] are different. The nature of the crimes
are different and the harm to society is different. So as
a result, this fits precisely into the definition of how this
[c]ourt reads the Yarbough criteria.
Defendant argues that because the proffered mitigating factors were
supported by his "history of substance abuse," "documented cognitive
limitations," and "significant back problems," as well as "character letters
reflecting . . . [his] positive attributes," the judge erred in "fail[ing] to fairly
consider" them. However, our caselaw does "not require . . . that the trial court
explicitly reject each and every mitigating factor argued by a defendant"
particularly when "we can readily deduce from the sentencing transcript" that
the judge "was mindful of and did consider the mitigating factors urged for
defendant." State v. Bieniek, 200 N.J. 601, 609 (2010).
Here, based on the judge's finding of the applicable aggravating factors,
we discern no abuse of discretion in the judge's rejection of the proffered
mitigating factors. See id. at 610 (noting that the applicability of aggravating
factor three undermines a finding of mitigating factor nine); State v. Ghertler,
114 N.J. 383, 390 (1989) (rejecting "defendant's contention that his drug
A-3856-18
23
dependency should be considered a mitigating factor"); State v. Wilson, 421 N.J.
Super. 301, 312 (App. Div. 2011) (upholding the trial court's determination that
mitigating factor eleven based on a medical condition was inapplicable in the
absence of any evidence that satisfactory medical treatment was unavailable in
prison).
Defendant also contends the judge abused his discretion by imposing
consecutive sentences on counts one and nine. While we agree that, contrary to
the judge's statement, the dates of the offenses were the same, we are nonetheless
satisfied that the imposition of a consecutive sentence comports with Yarbough
and is supported by the judge's finding that the crimes have different objectives
and inflict different harms upon society. Indeed, the Yarbough factors "should
be applied qualitatively, not quantitatively" and "a sentencing court may impose
consecutive sentences even though a majority of the Yarbough factors support
concurrent sentences." State v. Carey, 168 N.J. 413, 427-28 (2001).
Applying our deferential standard of review, we are satisfied that the
judge's findings are amply supported by the record, that the sentence comports
with the guidelines enunciated in the Code of Criminal Justice, and that the
aggregate sentence does not reflect an abuse of discretion or shock our judicial
conscience. However, because the judgment of conviction incorrectly recites
A-3856-18
24
the sentence,8 we remand for the JOC to be corrected to reflect the oral sentence
pronounced by the judge. See State v. Abril, 444 N.J. Super. 553, 564 (App.
Div. 2016) ("In the event of a discrepancy between the court's oral
pronouncement of sentence and the sentence described in the [JOC], the
sentencing transcript controls and a corrective judgment is to be entered.").
II.
A. Docket No. A-5278-18 Overview
In Docket No. A-5278-18, on May 11, 2018, while Indictment Nos. 17-
07-0820 and 17-07-0821 were still pending, defendant was charged in
Middlesex County Indictment No. 18-05-0743 with first-degree unlawful
possession of a weapon, a .45 caliber handgun, N.J.S.A. 2C:39-5(b), 2C:39-5(j)
(count one); fourth-degree unlawful possession of a weapon, a buck knife,
N.J.S.A. 2C:39-5(d) (count two); third-degree possession of CDS, oxycodone,
N.J.S.A. 2C:35-10(a)(1) (count three); fourth-degree possession of CDS,
hashish, N.J.S.A. 2C:35-10(a)(3) (count four); third-degree possession of CDS
8
Contrary to the oral sentence, the JOC states as follows: on count two,
defendant is sentenced to a five-year term of imprisonment with a forty-two-
month period of parole ineligibility "to run consecutive to the sentence imposed
on [c]ount [one,]" and, on count nine, to a five-year term of imprisonment with
a forty-two month period of parole ineligibility "to run concurrent to the
sentence imposed on [c]ounts [one and two]."
A-3856-18
25
with intent to distribute, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(3) (count five);
second-degree possession of a firearm while engaged in drug distribution,
N.J.S.A. 2C:39-4.1 (count six); third-degree receiving stolen property, a .45
caliber handgun, N.J.S.A. 2C:20-7 (count seven); and fourth-degree possession
of handgun ammunition, N.J.S.A. 2C:58-3.3 (count eight). On the same date,
May 11, 2018, defendant was charged in Middlesex County Indictment No. 18-
05-0744 with second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7(b)(1) (count one), and fourth-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(a) (count two), arising from the same incident.
The charges arose from a motor vehicle stop conducted on February 21,
2018, twelve days after defendant pled guilty to offenses charged in Indictment
No. 17-07-0820 and was awaiting sentencing. During the stop, police seized a
handgun and other contraband from defendant's vehicle. As a result of the new
charges, defendant was detained. Defendant moved to suppress the evidence
seized during the February 21 motor vehicle stop, and the judge conducted an
evidentiary hearing on October 12 and December 11, 2018, after which the judge
denied the motion in an oral decision placed on the record on December 11,
2018.
A-3856-18
26
On the same date, December 11, 2018, the judge denied defendant's
motion to withdraw his guilty plea in connection with Indictment No. 17-07-
0820 and scheduled sentencing on that indictment as well as a status conference
on the new indictments for January 25, 2019. The prosecutor indicated on the
record that in the interim, she would e-mail the new plea offer on the new
indictments to defense counsel as the prior offer had expired with the
adjudication of the suppression motion.
When the parties appeared on January 25, 2019, defense counsel requested
an adjournment of the sentencing on Indictment No. 17-07-0820 because
defendant had "a doctor's appointment" with "a pain specialist" scheduled for
February 1, 2019, at the county jail to address his "serious back issues." Defense
counsel explained that after a long wait, defendant had finally obtained
"approval" for a specialist to evaluate him at the jail and he would miss his
appointment if he was sentenced because he would be transferred to the custody
of the Department of Corrections. Over the State's objection, the judge
acknowledged that the "delay" in resolving Indictment No. 17-07-0820 was
attributable to "defendant wanting to vacate his guilty plea," but granted the
adjournment request, finding no "meaningful prejudice . . . to the State by
A-3856-18
27
delaying the sentencing a little bit in order for the doctor's appointment to occur
as scheduled."
Turning to the new indictments that are the subjects of this appeal, defense
counsel indicated that defendant had accepted the State's offer, had signed the
paperwork, and was prepared to resolve the cases in accordance with the agreed
upon terms. According to defense counsel, those terms required defendant to
plead guilty to count one of Indictment No. 18-05-0744 in exchange for a
sentencing recommendation of five years' imprisonment, with a five-year period
of parole ineligibility, to run consecutive to his sentence on Indictment No. 17-
07-0820, and dismissal of count two of Indictment No. 18-05-0744 as well as
Indictment No. 18-05-0743 in its entirety.
However, because the judge had granted defendant's request to adjourn
the sentencing on Indictment No. 17-07-0820, the State indicated that it was
rescinding the plea offer on Indictment Nos. 18-05-0743 and 18-05-0744 on the
ground that the offer contemplated "the resolution" of all the cases that day.
Defense counsel protested that under the terms of the plea agreement, "[t]here
was no stipulation . . . that [defendant] had to be sentenced today."
Acknowledging that during "a conference in chambers," the prosecutor stated
"that the plea offer was contingent upon the matter being globally resolved
A-3856-18
28
today," the judge directed defense counsel to "file [a] motion to enforce the plea
agreement" and permitted the prosecutor "to put under [her] signature" on the
plea form, "offer rescinded by State."
On March 11, 2019, defendant filed a motion to enforce the plea
agreement on Indictment Nos. 18-05-0743 and 18-05-0744, which the State
opposed. The parties appeared on March 25, 2019, for sentencing on Indictment
No. 17-07-0820 and oral argument on the motion. The judge granted defense
counsel's request for an adjournment of the motion but proceeded to sentence
defendant on Indictment No. 17-07-0820.
Thereafter, oral argument on the motion was conducted on May 24, 2019,
during which the parties placed their respective positions on the record.
Defendant asserted that "once the plea form was signed" by all the parties, which
execution occurred before the conference in chambers regarding a global
resolution, there "was an enforceable contract" and "the condition of when
sentencing was to occur [was] ancillary to that contract" and "[was] not a
material element of the contract." Further, defendant argued that "there [was]
no provision under the caselaw or the rules that allow[ed] the State to rescind
its offer once it[] entered into an agreement."
A-3856-18
29
The prosecutor countered that there was no enforceable agreement
because by requesting an adjournment of the sentencing on Indictment No. 17-
07-0820, defendant reneged on "a material term" of the agreement. When asked
by the judge why the sentencing on other charges "was so essential to the State,"
the prosecutor responded:
Resources. My office has limited resources. The more
times that we have to come back, the more files that we
have to carry, the more times we have to be prepared
for trial, it's a zero[-]sum game. That means it's to the
exclusion of some other file or some other matter we
can be doing.
Further, for the first time, the prosecutor stated that if defendant's motion was
granted, "the State would[ not] participate . . . in th[e] plea," and "would not
consent to any dismissals of anything." Thus, according to the prosecutor, any
dismissals would be in violation of Rule 3:9-3(c), which "explicitly [states that]
the [c]ourt does not have the authority to dismiss any counts without the State's
permission."
Following oral argument, the judge granted defendant's motion in an order
entered May 24, 2019. In an oral decision on the record, initially, the judge
posited that the issue was whether the condition of setting the date for sentencing
on other charges was "an ancillary issue or as argued by the State, . . . a material
issue" so much so that "if the [c]ourt were to excise out the sentencing date," the
A-3856-18
30
"material terms of the plea[ agreement]" would be "alter[ed.]" The judge found
that "the material terms" of the plea agreement were "what . . . defendant [was]
pleading guilty to and what the recommended sentence of the State would be"
which, "under all the facts and circumstances," the judge deemed "fair and
reasonable." Further, the judge concluded that "the condition of the sentencing
date [was] ancillary to the . . . terms of the contractual agreement." Moreover,
according to the judge, "judicial efficiency and overall fairness" militated in
favor of enforcing the plea agreement.
In expressly rejecting the State's proffered reason for attempting to
condition the plea on the sentencing on other charges, the judge explained:
[M]uch of the [State's] reason for wanting to bring this
matter to closure had to do with the frustration of the
protracted nature of this process, and the [c]ourt can
fully understand that in light of what has transpired
procedurally with this case . . . .
However, ultimately, the [c]ourt feels as though
frustration with the process or the length that it takes is
part of what we do in this court system, and sometimes
things just do take longer because of an emphasis to
always do what is right.
....
The prosecutor also argues that the court date is
to promote the effective use of limited prosecutor
resources. Once again, the [c]ourt struggles with that
line of thinking because there seems to be then a greater
A-3856-18
31
use of prosecutor resources if the matter is . . . returned
to the trial calendar.
In addition, the [c]ourt looks at the issue of
judicial efficiency. And clearly in this case, the
substantive terms . . . were agreeable to both the State
and . . . defendant.
See State v. Warren, 115 N.J. 433, 443 (1989) ("The [plea bargaining] system
enables a defendant to reduce penal exposure and avoid the stress of trial while
assuring the State that the wrongdoer will be convicted and punished, and that
scarce and vital judicial and prosecutorial resources will be conserved through
a speedy resolution of the controversy.").
The judge then conducted a plea hearing during which defendant entered
a guilty plea pursuant to the terms of the plea agreement, which was accepted
by the judge in accordance with Rule 3:9-2. However, the State refused to
participate in the plea colloquy and thereby withheld its consent to the
anticipated dismissal of charges as required under the plea agreement at
sentencing. Acknowledging the State's argument raised for the first time during
oral argument on the motion that Rule 3:9-3(c) precluded the court from
dismissing charges without the consent of the prosecutor, the judge suggested
that the State should seek reconsideration of the motion based on the newly
A-3856-18
32
raised legal argument or seek interlocutory relief from the Appellate Division
prior to the scheduled sentencing date.
Thereafter, the State moved for reconsideration. On July 22, 2019, during
oral argument, the State reiterated its prior arguments that under Rule 3:9-3(c),
the court was not authorized "to dismiss any of the counts that the aborted plea
would require." The judge denied the motion in an order filed on July 23, 2019.
In an oral opinion on the record, the judge found that the State failed to meet the
"high standard" for reconsideration because "the State . . . has not presented any
evidence that the decision was palpably incorrect or irrational." See State v.
Puryear, 441 N.J. Super. 280, 294 (App. Div. 2015) (explaining that
reconsideration is only available when "either 1) the [c]ourt has expressed its
decision based upon a palpably incorrect or irrational basis, or 2) it is obvious
that the [c]ourt either did not consider, or failed to appreciate the significance
of probative, competent evidence." (quoting Palombi v. Palombi, 414 N.J.
Super. 274, 288 (App. Div. 2010))).
Further, the judge concluded that
[Rule 3:9-3(c)] does not apply when the dismissal of
the charges was pursuant to a negotiated plea
agreement. Rather, it appears as though this rule was
intended for a situation where the [c]ourt acts
unilaterally and especially if there's no legitimate basis
for it.
A-3856-18
33
In this case, the [c]ourt did not act unilaterally to
dismiss charges, but rather acted pursuant to . . . the
plea agreement that the [c]ourt finds was a valid plea
agreement . . . .
So that, even though the State is disagreeing that
the agreement is enforceable, once the [c]ourt found
that it is enforceable, the [c]ourt then [i]s authorized to
dismiss the other charges because th[at] was a material
term to the plea agreement. [9]
The judge then sentenced defendant in accordance with the terms of the
plea agreement and dismissed count two of Indictment No. 18-05-0744 as well
as Indictment No. 18-05-0743 in its entirety. In the conforming judgment of
conviction entered on August 22, 2019, the judge noted that in order "to insure
that both the appeal rights of the State and . . . [d]efendant [were] fully preserved
regarding decisions made in this matter," the consecutive sentence imposed on
Indictment No. 18-05-0744 was not to be served until defendant "completed his
sentence on Indictment No. 17-07-0820 to allow any direct appeals to be filed
and considered by the Appellate Division."
B. State's Appeal of Enforcement of Plea Agreement
9
The judge also noted that an evidentiary hearing "to make findings of fact
[was] not necessary" because "the plea agreement itself [was] the contract" that
determined "the terms of the plea agreement." The plea form included in the
record corroborates the judge's reasoning.
A-3856-18
34
On appeal, the State argues that "[b]ecause no case in New Jersey . . . has
ever countenanced enforcing a plea offer that was explicitly rescinded prior to
its entry" and "because the trial court failed to abide by the applicable court rule
that circumscribes the role trial courts may take in plea negotiations," the State's
motion for reconsideration should have been granted and the plea vacated.
Defendant counters that as a threshold matter, "[t]he State's appeal must be
dismissed for lack of jurisdiction." In support, defendant relies on Rule 2:3-1
which "limits the State's right of appeal to . . . narrow circumstances to comport
with the Double Jeopardy Clauses." Defendant asserts that Rule 2:3-1 does "not
authorize the State's appeal from the order denying reconsideration of the trial
court's decision to enforce the plea agreement" when the State failed to seek
interlocutory review under Rule 2:5-6(a) "before the matter became final" with
the imposition of "a legal sentence."
Substantively, defendant asserts that "[i]n accordance with due process
and contract-law principles, the trial court correctly exercised its discretion to
enforce the plea agreement" because "[a]llowing the State to repudiate a signed,
written plea agreement based on unwritten, immaterial terms would offend due
process, frustrate the legitimate expectations of defendants, and weaken the
plea-bargaining system." Further, according to defendant, enforcing the
A-3856-18
35
agreement "under the circumstances of this case did not run afoul of [Rule 3:9-
3(c)]."
Preliminarily, we reject defendant's contention that the State's appeal must
be dismissed for lack of jurisdiction. Rule 2:3-1 governing appeals by the State
in criminal actions allows the State to "appeal or where appropriate, seek leave
to appeal pursuant to [Rule] 2:5-6(a)," from "a judgment of the trial court
dismissing an indictment, accusation or complaint, where not precluded by the
constitution of the United States or of New Jersey." R. 2:3-1(b)(1). In the past,
we have entertained the State's appeal from trial court orders dismissing
indictments without seeking leave of court. See, eg., State v. Salley, 264 N.J.
Super. 91, 93 (App. Div. 1993) ("The State appeals from the Law Division's
order dismissing an indictment . . . . because the State refused to comply with
an order requiring the police to disclose the identity of a confidential
informant."); State v. Childs, 242 N.J. Super. 121, 125 (App. Div. 1990) ("The
State appeals from an order in which the trial judge dismissed this three-count
State grand jury indictment charging thefts, on the ground that a deputy attorney
general infringed upon the grand jury's independent judgment."); State v.
Merlino, 153 N.J. Super. 12, 14-15 (App. Div. 1977) ("The State appeals from
the order of the Assignment Judge of Mercer County dismissing the indictment
A-3856-18
36
as to all defendants because of the denial of the constitutional right to a speedy
trial."). Here, because the reconsideration order relates back to the judge's order
to enforce the plea agreement, including the attendant dismissals, the practical
effect of the order is the dismissal of an indictment.
We also find that defendant has suffered no deprivation of his
constitutional rights as a result of the State's appeal. The Double Jeopardy
Clause states no person "shall . . . be subject for the same offence to be twice
put in jeopardy of life or limb." U.S. Const. amend. V. Our "state constitutional
double jeopardy protection is coextensive" with the federal doctrine. State v.
Cooper, 307 N.J. Super. 196, 201 (App. Div. 1997). In United States v. Scott,
437 U.S. 82, 96, 99 (1978), the Court explained that although "a defendant once
acquitted may not be again subjected to trial without violating the Double
Jeopardy Clause," that situation is "a far cry from" circumstances where a
criminal defendant sought and obtained the dismissal of charges "against him
on a basis unrelated to factual guilt or innocence of the offense of which he is
accused."
New Jersey courts have consistently applied this same principle, even in
circumstances where a defendant has gone to trial, a jury has been impaneled,
and charges have then been dismissed on grounds unrelated to guilt or
A-3856-18
37
innocence. See, eg., State v. Brito, 345 N.J. Super. 228, 230 (App. Div. 2001)
(holding that where trial court's dismissals of criminal complaints "were, in no
sense, a disposition on the merits of the charges" but rather "on procedural
grounds only," the State was "entitled to appeal" under Rule 2:3-1); State in
Interest of S. Z., 177 N.J. Super. 32, 36 (App. Div. 1981) ("[A] defendant who
chooses to seek termination of proceedings against him on a basis unrelated to
factual guilt of the offense of which he has been accused cannot claim injury
cognizable under the double jeopardy concept if the government is permitted to
appeal from such a ruling . . . ."); State v. Barnes, 84 N.J. 362, 371 (1980)
("Where the proceedings against an accused are terminated during trial on a
basis unrelated to factual guilt or innocence, the State may appeal from a ruling
of the trial court in favor of the defendant without offending the princ iples
expressed in the double jeopardy clause."). Indeed, "[t]he mere commencement
of a case does not automatically entitle a defendant to a bar of further
prosecution." S.Z., 177 N.J. Super. at 36. Rather, "[f]airness and reasonable
expectation in the light of constitutional and common law goals should control,
not technicalities." Ibid.Additionally, although defendant may face a harsher sentence if the State
prevails in its appeal, "the critical inquiry in assessing whether principles of due
A-3856-18
38
process and double jeopardy bar imposition of a sentence greater than one
initially imposed is whether the defendant maintains a legitimate expectation of
finality with respect to the sentence." State v. Haliski, 140 N.J. 1, 21 (1995)
(internal quotation omitted). "Finality interests arise after the 'final judgment
and commencement of the sentence.'" State v. Thomas, 459 N.J. Super. 426,
433 (App. Div. 2019) (quoting State v. Veney, 327 N.J. Super. 458, 461 (App.
Div. 2000)).
Here, defendant has not commenced serving the sentence at issue. In fact,
the judge explicitly preserved both the State's and defendant's appeal rights by
noting in the JOC that defendant would not serve the sentence in this case until
he had completed serving the sentence imposed on Indictment No. 17-07-0820,
which has not yet occurred. See State v. Rodriguez, 97 N.J. 263, 270 (1984)
("[T]he commencement of sentence coupled with the defendant's expectation of
finality in his original underlying conviction and sentence combined to raise a
constitutional bar against an increase in that sentence." (citing State v. Ryan, 86
N.J. 1, 9-10 (1981))). Moreover, since the underlying conviction is itself the
subject of attack by virtue of defendant's cross-appeal, in which he seeks
invalidation of the seizure of the evidence upon which the charge is predicated,
"no legitimate expectation of finality could be invested in the underlying
A-3856-18
39
conviction[] or the sentence[] related to [it]." Id. at 271. See United States v.
Jerry, 487 F.2d 600, 606 (3d Cir. 1973) ("[W]here a defendant by his own motion
causes the withdrawal of his guilty plea, he has waived his right not to be put in
jeopardy a second time.").
Turning to the substantive argument, the State asserts the judge violated
Rule 3:9-3, which provides in pertinent part:
(a) Plea Discussions Generally. The prosecutor and
defense attorney may engage in discussions relating to
pleas and sentences and shall engage in discussions
about such matters as will promote a fair and
expeditious disposition of the case, but except as
hereinafter authorized the judge shall take no part in
such discussions.
(b) Entry of Plea. When the prosecutor and defense
counsel reach an agreement concerning the offense or
offenses to which a defendant will plead on condition
that other charges pending against the defendant will be
dismissed or an agreement concerning the sentence that
the prosecutor will recommend, or when pursuant to
paragraph (c) the defendant pleads guilty based on
indications by the court of the maximum sentence to be
imposed, such agreement and such indications shall be
placed on the record in open court at the time the plea
is entered.
(c) Disclosure to Court. On request of the prosecutor
and defense counsel, the court in the presence of both
counsel may permit the disclosure to it of the tentative
agreement and the reasons therefor in advance of the
time for tender of the plea or, if no tentative agreement
has been reached, the status of negotiations toward a
A-3856-18
40
plea agreement. The court may then indicate to the
prosecutor and defense counsel whether it will concur
in the tentative agreement or, if no tentative agreement
has been reached and with the consent of both counsel,
the maximum sentence it would impose in the event the
defendant enters a plea of guilty, assuming, however,
in both cases that the information in the presentence
report at the time of sentence is as has been represented
to the court at the time of the disclosure and supports
its determination that the interests of justice would be
served thereby. If the agreement is reached without
such disclosure or if the court agrees conditionally to
accept the plea agreement as set forth above, or if the
plea is to be based on the court's conditional indication
about the sentence, all the terms of the plea, including
the court's concurrence or its indication concerning
sentence, shall be placed on the record in open court at
the time the plea is entered. Nothing in this Rule shall
be construed to authorize the court to dismiss or
downgrade any charge without the consent of the
prosecutor.
[R. 3:9-3(a) to (c).]
"A plea agreement is . . . governed by contract-law concepts." State v.
Pennington, 154 N.J. 344, 362 (1998). "It requires a meeting of the minds upon
the negotiated pleas and is an executory agreement since it depends on the
approval of the sentencing court." State v. Smith, 306 N.J. Super. 370, 383
(App. Div. 1997).
The essence of a plea agreement is that the parties agree
that defendant will plead guilty to certain offenses in
exchange for the prosecution's recommendation to
dismiss other charges and suggest a certain sentence,
A-3856-18
41
all subject to the right of the court to accept or reject
the agreement in the interest of justice.
[State v. Means, 191 N.J. 610, 622 (2007).]
Under basic contract law principles, "[w]hen two parties reach a meeting of the
minds and consideration is present, the agreement should be enforced." Ibid.While our court Rules expressly authorize a defendant to move to
withdraw a negotiated guilty plea, and we review the trial court's decision on
such an application for abuse of discretion, Munroe, 210 N.J. at 443, "[o]ur
Rules do not contain a corresponding right of the State to withdraw from a plea
agreement." Means, 191 N.J. at 620. Nonetheless, "[i]n proper circumstances
the State may withdraw its agreement after the defendant has accepted," Smith,
306 N.J. Super. at 383, including, for example, when "the prosecutor placed on
the record" that the agreement was contingent on the sentencing court's
acceptance of the plea of multiple defendants and a criminal history report
showing no prior indictable convictions. Id. at 381-82. Significantly, in Smith,
"[e]ach defendant also signed and initialed a plea form indicating that the plea
was based on no prior convictions and contingent on the plea of the co -
defendant." Id. at 382. We held there was no error in the sentencing court's
refusal to enforce the plea agreement when both defendants failed to meet a
specific condition of its terms. Id. at 383.
A-3856-18
42
However, in Means, our Supreme Court held that when "[v]alid
consideration exists to support the agreement," a "unilateral mistake made by
the prosecutor, standing alone," is insufficient "to invalidate the plea
agreement." Id. at 622. There, the mistake made by the prosecutor was the
failure to notify the victims of the plea agreement prior to making the plea offer
to defendant in violation of "the victims' statutory rights and the Attorney
General's guidelines." Id. at 620. After finding "that basis insufficient to vacate
the plea agreement," the Court concluded the trial court erred in "grant[ing] the
State's motion to set aside the plea agreement." Id. at 613, 622. Cf. State v.
Veney, 327 N.J. Super. 458, 459, 461 (App. Div. 2000) (noting that "there is no
reason why the State should not be permitted to withdraw [a plea] offer" before
sentencing based on "an honest mistake" in the calculation of the authorized
Brimage10 plea offer but dismissing the State's appeal of the denial of its plea
withdrawal motion on double jeopardy grounds because the defendant had
"commenced serving the sentence").
Relying on Means, in State v. Conway, 416 N.J. Super. 406, 411 (App.
Div. 2010), we held that the defendant had a right to enforce a plea agreement
"according to its terms, without implying unstated terms favorable to the State
10
State v. Brimage, 153 N.J. 1 (1998).
A-3856-18
43
and unfavorable to the defendant." In Conway, "[t]he written plea form, signed
by defendant and the prosecutor, did not list any special conditions set by either
side" and "[a]t no point during the plea hearing did the prosecuting attorney
indicate that the State was conditioning its acceptance of defendant's plea
agreement on the co-defendants entering into plea agreements." Id. at 408-09.
However, a month after the trial judge in Conway accepted defendant's
plea agreement, "when one of the co-defendants opted to go to trial," the State
moved to vacate the agreement, contending "that the plea deal was conditioned
on all defendants pleading guilty," and the judge granted the State's motion "over
defendant's vigorous objection." Id. at 409-10. We reversed, holding that "the
written plea agreement did not state any conditions that would give the State the
right to withdraw from the deal," and "[i]n the absence of any such explicit
condition, defendant had a right to enforce the plea agreement." Id. at 412-13.
See also State v. Salentre, 242 N.J. Super. 108, 111-12 (App. Div. 1990)
(reversing the trial court's decision to vacate a plea agreement based on the
"unarticulated premise" that the agreement was conditioned on all defendants
accepting a plea bargain).
Guided by these principles, we are satisfied that the judge properly
enforced the plea agreement based on the explicit terms of the agreement.
A-3856-18
44
Although the State maintains that the plea agreement was contingent on
sentencing taking place on and no later than January 25, 2019, no such provision
was included in the written agreement executed by both parties. Had such a
term been included and defendant still requested an adjournment of the
sentencing, without question, the State would have been entitled to rescind the
plea agreement based on defendant breaching a material term of the agreement.
See Conway, 416 N.J. Super. at 411 ("Where we have permitted the State to
withdraw from a plea agreement, that relief was premised on the explicit terms
of the agreement.").
We acknowledge the prosecutor's representation on the record that "the
resolution was to get everything resolved today." However, defendant
vehemently disagreed, asserting that "[t]here was no stipulation on this plea
agreement that he had to be sentenced today," and, significantly, no such term
was contained in the duly executed agreement. The judge's recollection from
the in-chambers conference that "the plea offer was contingent upon the matter
being globally resolved today" does not mandate a contrary outcome. In fact,
the judge's recollection has no bearing on the issue given Rule 3:9-3(a)'s
prohibition against courts taking any part in plea negotiations except as
authorized under Rule 3:9-3(c), which does not apply here. See also State v.
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Williams, 277 N.J. Super. 40, 47-48 (App. Div. 1994) ("What the trial court
clearly may not do . . . is participate in plea negotiations" or "tender a plea
offer."). To give weight to the judge's representation regarding a contract term
absent from the plea agreement that the defense denied was a condition of the
agreement would be contrary to court rules and case law.
The State also argues that there was no enforceable agreement because it
rescinded the plea offer before it was accepted on the record. Although the rules
contemplate both a plea "agreement" and the "enter[ing]" of a plea by the
defendant on the record, the text of the rules clearly indicate that the
"agreement" and the "enter[ing]" are two separate legal events. See R. 3:9-3(b)
("When the prosecutor and defense counsel reach an agreement . . . such
agreement . . . shall be placed on the record in open court at the time the plea is
entered."); R. 3:9-2 (conditioning the court's acceptance of a guilty plea on
"questioning the defendant personally[] under oath" and "determining . . . that
there is a factual basis for the plea and that the plea is made voluntarily, . . . and
with an understanding of the nature of the charge and the consequences of the
plea"). The significance of the schism is that while there must be both an
enforceable "agreement" and the "enter[ing]" of a plea in order for the agreement
to be effective, the former exists separate and apart from the latter. While the
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latter is the subject of court rules, the former is governed by contract principles.
Pennington, 154 N.J. at 362.
Applying contract principles, when defendant accepted the State's offer as
evidenced by the completion and execution of the plea form, containing both
defendant's signature and the signature of the prosecuting attorney as well as the
material terms of the agreement, an enforceable agreement was formed subject
to the entering and the court's acceptance of the plea on the record. Means, 191
N.J. at 612-13. Thus, the State was not justified in relying on an "unstated
term[]" that was not memorialized in the four corners of the agreement to rescind
the plea offer after it was accepted by defendant but before it was formally
entered on the record. Conway, 416 N.J. Super. at 411. See State v. Rosario,
391 N.J. Super. 1, 15 (App. Div. 2007) ("[W]e see no basis in law or equity to
hold that the [State's plea] offer was unenforceable merely because it was not
placed in writing before it was accepted."); see also State v. Chappee, 211 N.J.
Super. 321, 324 (App. Div. 1986) (affirming the judge's refusal to enforce a plea
agreement that was "rescinded" by the State "before it was put on the record and
before [the defendant] accepted or rejected it").
To hold otherwise under the idiosyncratic circumstances of this case
would jeopardize defendant's constitutional rights and would be unfair to
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defendant. "[A]lthough notions of fairness apply to each side, the State as well
as the defendant, the defendant's constitutional rights and interests weigh more
heavily in the scale." Warren, 115 N.J. at 443. "Due process concerns as well
inhibit the ability of the prosecutor to withdraw from a guilty plea." Id. at 445.
See State v. Antieri, 186 N.J. Super. 20, 25 (App. Div. 1982) (affirming the
judge's refusal "to order specific performance of the rejected plea agreement"
after it was entered on the record because "[t]here [was] nothing in the record
which indicate[d] that there was any impropriety in the prosecutor's withdrawal
of the plea agreement" and the judge's reasons supported "his rejection of the
proposed plea agreement as well"). Notably, defendant presented to the judge a
legitimate need to attend a long-awaited medical appointment, while the
prosecutor asserted concerns of mere inconvenience in returning on a later date.
We also reject the State's contention that the judge violated Rule 3:9-3(c)
by dismissing charges without the State's consent. Rule 3:9-3(c) applies to
situations where "the judge does not react favorably to the 'tentative agreement'
or the maximum sentence acceptable to defendant for the offense to which
defendant offers a plea." Salentre, 275 N.J. Super. at 419-20. Rule 3:9-3(c) did
not apply here. The judge did not take part in the "plea discussions," "modify[
a] guilty plea . . . or fashion[ a] disposition . . . when there [was] no basis to
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accept the plea offered." Id. at 419 (quoting State v. Barboza, 115 N.J. 415, 422
(1989)). Instead, because there was an enforceable negotiated plea agreement,
once the plea was entered on the record and accepted by the judge as fair and
reasonable, the judge properly dismissed the remaining count of Indictment No.
18-05-0744 as well as Indictment No. 18-05-0743 in its entirety at sentencing
as contemplated under the express terms of the agreement. Accordingly, we
discern no abuse of discretion in the judge's denial of the State's motion for
reconsideration in this distinctive setting. See State v. Washington, 453 N.J.
Super. 164, 187 (App. Div. 2018) (reviewing the trial court's denial of
reconsideration for "abuse of discretion").
C. Defendant's Cross-Appeal of the Denial of the Suppression Motion
In the cross-appeal, defendant argues the judge erred in finding "the plain
view exception to the warrant requirement" justified "the discovery of the
handgun" because the officer "had unlawfully extended the traffic stop without
reasonable suspicion" and "thus was not lawfully in the viewing area when he
allegedly saw the gun." According to defendant, the other items seized "should
also have been suppressed as fruit of the poisonous tree."
At the suppression hearing conducted on October 12 and December 11,
2018, Piscataway Township Patrolman Robert Yulich testified that while on
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routine patrol at approximately 3:00 a.m. on February 21, 2018, he observed
defendant fail to stop at a stop sign and fail to use a turn signal. He also observed
defendant "swerve[] over the fog line," 11 "fail . . . to stop at the red light," turn
"without signaling" on two more occasions, almost crash into a barrier, and
exceed the speed limit. Yulich then activated his lights and siren, which also
activated his mobile video recorder (MVR),12 and pulled defendant over after
"notif[ying] Dispatch of a motor vehicle stop."
With the spotlight from his patrol car shining on defendant's vehicle,
Yulich first approached on the "passenger side of the vehicle," tapped on the
window, and asked defendant for his "license, registration, and . . . insurance
card." Initially, defendant gave Yulich "his entire wallet" but then removed "a
[S]tate [identification card]" from the wallet and handed it to Yulich while "he
continued looking for the [other] documents." Suspecting that defendant was an
unlicensed or impaired driver, Yulich moved to "the driver's side of the vehicle"
where defendant handed him "a Walmart receipt" and a rental agreement for the
vehicle.
11
"The fog line is a solid white line on the right-hand side of the road."
12
The MVR was admitted into evidence and viewed by the judge during the
hearing.
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At that point, because defendant had "bloodshot, watery eyes," which are
indicators of impaired driving, Yulich asked defendant "for the vehicle's keys"
so that he could not "drive . . . away." While defendant "leaned to the right" to
look for the keys,13 "his left leg lifted up" and Yulich observed "part of a
handgun barrel sticking out from under [defendant's] leg." Yulich recognized
the gun from his experience as a police officer as well as prior experience in the
military.
Without informing defendant of his observation, Yulich tried to open the
driver door, but it was locked. Yulich then ordered defendant to open the door
and exit the vehicle. However, when defendant repeatedly "reach[ed] for the
handgun," Yulich "told [defendant] to keep both hands on [the] steering wheel."
Once another officer arrived to assist Yulich, defendant was removed from the
vehicle and escorted to the patrol car. After defendant was out of the car, Yulich
observed a "full-sized, double-action handgun on the driver's seat" with "ball
ammunition inside the magazine" and "a round of ammunition . . . in the
chamber" in the "ready[-]to[-]fire" position. Before seizing the handgun, Yulich
photographed it "in place without touching it." The photograph was admitted
into evidence at the hearing.
13
The car had "a push[-]to[-]start" ignition.
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An ensuing search of "[t]he interior cabin" uncovered "[a] large buck
knife" in "a compartment" in "the driver's door," and "a mason jar" with
"suspected marijuana" as well as "a pill bottle" with suspected "Oxycodone" in
"the center console." Defendant remained in the patrol car until the search of
the interior of his vehicle was completed, at which point defendant was arrested
and transported to police headquarters for processing. The entire encounter
lasted approximately forty-five minutes. Defendant's car was also impounded
and a subsequent search pursuant to a search warrant revealed vials of marijuana
oil in a bag in the trunk. In addition to the weapons and drug possession related
charges, defendant "was charged with numerous motor vehicle summonses" on
the same day as the stop.
Following the hearing, the judge denied the motion, concluding that the
stop was justified based on "the motor vehicle violations," and the search was
justified under "the plain view doctrine." In an oral decision, the judge found
Officer Yulich's testimony "very credible" and made factual findings consistent
with his testimony as well as "the [c]ourt's observations of the MVR." Initially,
the judge determined that "between the testimony and the . . . MVR, the stop
itself for the motor vehicle infractions was clearly legitimate." Next, the judge
found that "based . . . on the interaction that transpired" after the stop, which
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52
caused the officer "to suspect . . . [that] defendant was under the influence while
. . . operating the vehicle," "the officer properly went to the driver['s] side" and
"was lawfully in the location" when, "based on his training and experience," he
observed "in plain view" "what he believed to be a gun."
In rejecting defendant's argument that the officer prolonged the stop
unnecessarily, the judge concluded "the length of th[e] [stop] . . . was not
unreasonable to taint the actions of the officer." Rather, the judge found that
"the interaction itself [was] very quick," "[i]t was part of the routine motor
vehicle stop with suspicion of . . . [driving while under the influence,]" and "it
was further delayed because there [were] issues as to whether . . . defendant[,]
in fact[,] was impaired and whether his license was valid." The judge noted that
the officer's failure to conduct field sobriety tests was understandably preempted
by his observation of the handgun.
The judge also found that the search of the interior cabin was lawful under
the automobile exception to the warrant requirement because "probable cause to
believe that the vehicle contained evidence of a crime . . . arose in a manner that
was unforeseeable and spontaneous" and the subsequent search warrant was not
tainted by any illegality during the initial stop and search. See State v. Witt,
223 N.J. 409, 450 (2015) ("Going forward, searches on the roadway based on
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probable cause arising from unforeseeable and spontaneous circumstances are
permissible.").
"When reviewing a trial court's decision to grant or deny a suppression
motion, [we] 'must defer to the factual findings of the trial court so long as those
findings are supported by sufficient evidence in the record'" and "[w]e will set
aside a trial court's findings of fact only when such findings 'are clearly
mistaken.'" State v. Dunbar, 229 N.J. 521, 538 (2017) (quoting State v.
Hubbard, 222 N.J. 249, 262 (2015)). "We accord no deference, however, to a
trial court's interpretation of law, which we review de novo." Ibid. (citing State
v. Hathaway, 222 N.J. 453, 467 (2015)).
"A warrantless search is presumed invalid unless it falls within one of the
recognized exceptions to the warrant requirement," State v. Cooke, 163 N.J. 657,
664 (2000), and "[t]he State bears the burden of proving that the warrantless
search is justified by one of those exceptions." State v. Gamble, 218 N.J. 412,
425 (2014). Evidence seized when found in plain view following a lawful traffic
stop is one such exception. State v. Gonzales, 227 N.J. 77, 82 (2016). To be
lawful, a traffic "stop 'must be based on reasonable and articulable suspicion
that an offense, including a minor traffic offense, has been or is being
committed.'" State v. Bacome, 228 N.J. 94, 103 (2017) (quoting State v. Carty,
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170 N.J. 632, 639-40, modified, 174 N.J. 351 (2002)). Here, Yulich properly
stopped defendant's vehicle based on him observing numerous traffic infractions
and defendant does not argue otherwise.
During a lawful traffic stop, a police officer is permitted to "inquire 'into
matters unrelated to the justification for the traffic stop,'" Dunbar, 229 N.J. at
533 (quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009)), and "may make
'ordinary inquiries incident to [the traffic] stop.'" Ibid. (alteration in original)
(quoting Rodriguez v. United States, 575 U.S. 348, 355 (2015)). "If, during the
course of the stop or as a result of the reasonable inquiries initiated by the
officer, the circumstances 'give rise to suspicions unrelated to the traffic offense,
an officer may broaden [the] inquiry and satisfy those suspicions.'" State v.
Dickey, 152 N.J. 468, 479-80 (1998) (alteration in original) (quoting United
States v. Johnson, 58 F.3d 356, 357-58 (8th Cir. 1995)).
The inquiries, however, "may not be performed 'in a way that prolongs the
stop, absent the reasonable suspicion ordinarily demanded to justify detaining
an individual.'" Dunbar, 229 N.J. at 533 (quoting Rodriguez, 575 U.S. at 355).
Thus, a detention following a lawful stop "must be reasonable both at its
inception and throughout its entire execution," State v. Coles, 218 N.J. 322, 344
(2014), and prolonging a traffic stop "beyond the time reasonably required to
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complete the . . . stop's purpose . . . is unlawful absent independent reasonable
suspicion of criminal activity." Dunbar, 229 N.J. at 536.
In determining "whether an investigative detention is unreasonable,
common sense and ordinary human experience must govern over rigid criteria."
Dickey, 152 N.J. at 477 (quoting United States v. Sharpe, 470 U.S. 675, 685
(1985)). "The standard of reasonable suspicion required to uphold an
investigative detention is lower than the standard of probable cause necessary to
justify an arrest," State v. Nishina, 175 N.J. 502, 511 (2003) (citation omitted),
and "must be based on the law enforcement officer's assessment of the totality
of the circumstances with which he [or she] is faced." Ibid. (quoting State v.
Davis, 104 N.J. 490, 504 (1986)). Indeed, it "is based on 'specific and articulable
facts which, taken together with rational inferences from those facts,' give rise
to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117,
126-27 (2002) (citation omitted).
Here, the seizure was based on the officer's plain view observation of the
handgun during the course of the traffic stop. A warrantless seizure of evidence
in plain view is justified when "a police officer is lawfully in the viewing area
and the nature of the evidence is immediately apparent" as evidence of a crime
or contraband. Gonzales, 227 N.J. at 82. The record reveals substantial credible
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evidence supporting the judge's fact-findings, see State v. Elders, 192 N.J. 224,
243-44 (2007), and his determination that the handgun was properly seized
because it was in plain-view is legally sound.
Defendant contends that the officer was not "lawfully in the viewing area
when he allegedly saw the butt of the handgun underneath [defendant]" because
at that point, the officer had "moved to the driver's side of the car" and "had
impermissibly extended the traffic stop by failing to diligently address the traffic
infractions." To be sure, a detention becomes unlawful when it is longer than is
reasonably necessary to diligently investigate an officer's reasonable suspicion
of criminal activity. Dickey, 152 N.J. at 476-79. However, "diligence [is]
gauged . . . by noting what the officer actually did and how he did it[.]"
Rodriguez, 575 U.S. at 357. Here, we agree with the judge that, based on the
interaction between the officer and defendant during the stop, the officer acted
diligently and did not prolong the stop beyond what was necessary to satisfy his
suspicions. Accordingly, we affirm the judge's order denying the suppression
motion.
Affirmed in Docket No. A-5278-18 on the appeal and cross-appeal; and,
in Docket No. A-3856-18, defendant's convictions and sentence are affirmed but
we remand solely for correction of the JOC.
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