STATE OF NEW JERSEY v. EDEL GAMBE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0777-05T10777-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDEL GAMBE,

Defendant-Appellant.

__________________________________

 

Submitted March 20, 2006 - Decided April 27, 2006

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

04-002208.

Edel Gambe, appellant pro se.

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (John J. Scaliti, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Edel Gambe, was charged in a Bergen County indictment with two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Counts I and IV); two counts of third-degree aggravated assault on the police, N.J.S.A. 2C:12-1b(5) (Counts II and V); two counts of resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (Counts III and VI); and one count of attempted escape, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:29-5 (Count VII). These charges stem from an incident on July 14, 2004, wherein, the State alleges, defendant removed his penis from his shorts and began to masturbate himself in front of two police officers in a public park.

Defendant moved to dismiss the indictment alleging: (1) insufficient evidence of sexual contact or lewdness; (2) no probable cause to arrest; (3) unconstitutionality of N.J.S.A. 2C:14-4; (4) entrapment; and (5) discriminatory enforcement of the lewdness statute. The motion was denied. Thereafter, with benefit of counsel and pursuant to a plea agreement, defendant entered unconditional pleas of guilty to Count III, as amended, charging the disorderly person's offense of resisting arrest, N.J.S.A. 2C:29-2a(3)(a), and to a complaint charging the disorderly person's offense of lewdness, N.J.S.A. 2C:14-4a. In exchange for defendant's guilty pleas and his stipulation that probable cause existed for his arrest, the State agreed to move to dismiss the remaining charges and to recommend that defendant receive a probationary term. During the plea colloquy, defendant stated he was knowingly and voluntarily pleading guilty and was satisfied with the advice he had received from counsel. Defendant also provided factual bases for the two offenses, acknowledging that he had exposed his penis to police officers and thereafter had resisted the officers' attempt to arrest him. The judge accepted defendant's guilty pleas.

Defendant was sentenced to a two-year probationary term for the resisting arrest offense and to a concurrent two-year probationary term for the lewdness offense. Appropriate fees and penalties were also imposed.

On appeal, defendant raises a number of issues for our consideration including: (1) entrapment; (2) insufficiency of the evidence to support the indictment; (3) prosecutorial and judicial bias; (4) excessive sentence; and (5) ineffective of trial counsel, who, it is alleged, manipulated defendant into pleading guilty, provided him with inadequate information, and failed to file a motion to withdraw the guilty plea. We have considered all issues presented in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that, save for the ineffective assistance of counsel claim which is better suited for post-conviction relief (PCR) review, see Rule 3:22-1; State v. Preciose, 129 N.J. 451, 459 (1992), none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following brief comments.

Defendant's guilty pleas to lewdness and resisting arrest were accepted by the court at a hearing complying in all respects with the applicable provisions of Rule 3:9-2 and 3:9-3. Defendant was represented by counsel and entered the guilty pleas knowingly, voluntarily, and significant for present purposes, unconditionally. A defendant entering an unconditional guilty plea is generally "'prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.'" State v. Owens, 381 N.J. Super. 503, 508 (App. Div. 2005) (quoting State v. Knight, 183 N.J. 449, 470 (2005)). That "is because a guilty plea waives all issues, including constitutional claims, that were or could have been raised in prior proceedings." Id. at 508-09. It follows, therefore, that separate and apart from lacking any merit based on the record presented to us, defendant's claims are deemed waived for purposes of direct appeal. As noted, his claim of ineffective assistance of trial counsel may be reserved for PCR review.

 
Affirmed.

(continued)

(continued)

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A-0777-05T1

April 27, 2006