STATE OF NEW JERSEY v. CHARLES FULLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3065-04T33065-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES FULLER,

Defendant-Appellant.

______________________________________________________________

 

Submitted January 25, 2006 - Decided February 10, 2006

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New

Jersey, Law Division, Camden County,

Indictment Number 4515-12-03.

Michael W. Kahn, attorney for appellant

(Patricia Ratner, on the brief).

Nancy Kaplen, Acting Attorney General of

New Jersey, attorney for respondent

(Mary E. McAnally, Deputy Attorney General,

of counsel and on the brief).

PER CURIAM

Defendant Charles Fuller appeals from a judgment of conviction entered on January 7, 2005 after he pled guilty to third degree possession with intent to distribute a controlled dangerous substance (CDS) in a school zone, N.J.S.A. 2C:35-7. He was sentenced to a term of five years, subject to two years parole ineligibility.

This case has an unusual procedural history. Defendant was arrested on September 22, 2003 and subsequently charged in an eleven-count indictment with various drug and weapons offenses. Defendant moved to suppress the evidence seized from a warrantless search of his vehicle after he was taken into custody. He also alleged racial profiling and sought disclosure of the arresting State Trooper's records of stops and searches. At the suppression hearing on September 27, 2004, the arresting trooper testified and briefs were submitted. The court requested additional briefs, but apparently did not render a formal decision on the motion. On October 7, 2004, however, defendant entered a guilty plea.

On January 7, 2005, the trial judge sentenced defendant and entered the judgment of conviction, but stayed imposition to allow defendant to appeal denial of the still undecided suppression motion. The notice of appeal was filed on February 24, 2005, and a month later, on March 24, the trial judge placed on the record his findings of fact, conclusions of law and denial of the suppression motion based upon the evidence presented at the September 27, 2004 hearing.

The incident giving rise to these charges occurred on September 22, 2003 when State Trooper Clarence Clemons saw defendant driving in Camden without a seatbelt. When the trooper stopped defendant and he presented a Pennsylvania driver's license, the trooper questioned whether the person in the license photograph was defendant because the person in the photo appeared to have lighter skin than defendant. Defendant responded that he was darker because it was summer. The trooper further questioned the validity of the license because the license number was handwritten in ink on the back. While talking with defendant, the trooper noticed some motor vehicle summonses inside the car and requested that defendant hand them over. The summonses were for disorderly conduct and fictitious license plates for the same vehicle defendant was then driving.

The trooper then did the "look-up," during which time other troopers arrived as backup. On the "look-up," Clemons learned that defendant's real name was Charles Fuller, rather than Charles Bradley as the Pennsylvania license identified him. The trooper then asked defendant to get out of the car and questioned him on his identity. Clemons placed defendant under arrest for "presenting a fictitious driver's license to a law enforcement officer" and "hindering apprehension."

Defendant was searched incident to arrest and two large bundles of money were found in his left side cargo pants' pocket and one small bundle of money was found in his front left pants' pocket. Defendant was then secured in the troop car while Clemons and another trooper searched the vehicle, in which they discovered a loaded handgun in a plastic bag wedged between the driver's seat and the center console. They also found two prescription bottles of drugs with names scratched off the labels, money inside the center console, a light blue plastic bag containing marijuana in the dashboard compartment above the radio and additional bags of marijuana under the back seat, along with a twenty-eight-inch sword. Defendant was ultimately transported to the police station and charged with offenses consistent with the evidence seized from the warrantless search of the vehicle. The entire stop was recorded on videotape.

At sentencing on January 7, 2005, the judge explained that he stayed the imposition of the sentence because of our decision in State v. Eckel, 374 N.J. Super. 91 (App. Div. 2004) (reversing defendant's conviction on the ground that search of a vehicle incident to lawful arrest is for an officer's safety against the arrestee accessing weapons and, under the New Jersey Constitution, since defendant was already secured in a patrol car, the justification to search the vehicle incident to arrest was absent), aff'd, __ N.J. __ (2006). At the time of sentencing, Eckel was pending before the Supreme Court. On January 10, 2006, the Supreme Court affirmed our decision, holding that after a suspect is secured in custody and no longer has access to the vehicle, the police must obtain a warrant to search the vehicle. Id. at ___ (slip op. at 28).

In this appeal, defendant argues:

POINT ONE

WITHOUT JUSTIFICATION, A ROUTINE MOTOR VEHICLE STOP WAS ELEVATED EVEN BEYOND THE LIMITATIONS OF A TERRY SEIZURE

POINT TWO

BECAUSE THE DETENTION OF DEFENDANT WAS IMPROPER, HIS ARREST, SEARCH OF THE PERSON AND AUTOMOBILE WERE FRUITS OF THE POISONOUS TREE AND MUST BE SUPPRESSED

POINT THREE

THE TRIAL COURT RULING THAT THE SEARCH OF THE BRADLEY VEHICLE WAS LAWFUL AS A SEARCH INCIDENT TO ARREST IS INCORRECT AS A RESULT OF RECENT CASE LAW

In its response, the State argues that defendant waived his right to challenge the search of the vehicle when he accepted the plea agreement, entered a guilty plea and was sentenced before the court denied the suppression motion. The State maintains that "[t]he undecided status of the motion at the time of plea was undoubtedly a factor in the prosecutor's offer, which was lenient." The State maintains that the post-sentence denial of defendant's suppression motion actually strengthened its case against defendant, and if the ruling had been made before defendant's guilty plea, it would have likely resulted in a recommendation for an increased term of incarceration.

On October 7, 2004, the day defendant entered his guilty plea, the judge stated on the record:

I've taken considerable time speaking with counsel, Mr. Kahn on behalf of Mr. Bradley; Mr. Deitz and Ms. Singer on behalf of the State of New Jersey in attempts to try to resolve this case.

In doing so, I actually had a conference with Mr. Bradley, with the attorneys to give them the benefit of how - what the likelihood is that I was going to rule one way or the other on the motion.

. . . .

I'm not going to tell you how I was going to rule. Doesn't really matter now.

During the plea proceeding, the judge asked defendant if he understood the rights he was giving up by entering the plea:

First of all, gave up your right to claim the profiling information and claim that there was a profiling stop; secondarily, gave up your right to attempt to suppress the evidence; gave up your right to a trial by jury; right to remain silent and not have that used against you; the presumption of innocence and the right to confront all witnesses including Trooper [Clemons] who, in fact, you confronted during the course of the suppression hearing.

You understand you gave up all those important rights by pleading guilty?

Defendant responded, "Yes" and indicated that he did so voluntarily.

In sentencing defendant on January 7, 2005, the trial judge specifically questioned whether our decision in Eckel, decided December 29, 2004, applied retroactively to this case in which defendant was arrested on September 22, 2003. The judge stated:

Now as a result of [the Eckel] issues, this court took the position that, No. 1, there is a colorable . . . legal issue. No. 2, that . . . this court having ruled against this defendant did, in fact, enter into a plea. He had the right at that point to appeal this court's determination. He chose not to do so and proceeded to accept the plea offer which provided for, if I'm not mistaken, five years New Jersey State Prison sentence, two years without parole.

By the way, it was a really good offer negotiated by his defense counsel, considering this defendant had significant exposure to extended terms and there was, I think, a certain persons offense.

But, in any event, this court felt that the defendant did, in fact, waive his right to appeal by entering into that plea agreement and correspondingly this court should sentence him in accordance with the plea agreement. However, knowing that there are significant legal issues, the court was of a mind and I so told counsel that if an application were made to stay the imposition of sentence I would do so for 45 days to give the defendant the opportunity to file an appeal despite the fact he waived his right of appeal in this plea agreement. We all know that that's [a] contract or obligation but does not impair his rights to file an appeal.

So, accordingly it was this court's determination that if the State moves for sentencing today, this court would sentence the defendant in accordance with the plea agreement, stay the imposition of that sentence, return this case back to this court after 45 days, which would be a Monday, February 28 - of this year to determine whether or not an appeal had been filed. So that's what the inclination of this court is to do.

The court later addressed defendant and explained to him that if the motion had been granted, "[t]he State could have filed what's called an interlocutory appeal." Since the judge indicated he intended to deny the motion and rule that the evidence was admissible, defendant would have had a right to appeal after trial. Defendant said he understood the explanation. The judge then stated that he would stay the imposition of sentence to give defendant the opportunity to file an appeal within forty-five days.

Defense counsel explained to defendant on the record that "in the event that we file an appeal, then you'll be allowed to remain out on bail pending that appeal with the higher courts, okay? Do you understand me? If we . . . decide not to file an appeal, [you]'ll either walk back in here by February 28th or no later than February 28th and surrender yourself." Defendant indicated that he understood. The court then proceeded to sentence defendant.

The trial judge, himself, raised the Eckel issue at sentencing and specifically stayed the sentence to allow defendant to appeal the denial of the suppression motion - which had not yet been denied. Under the circumstances presented here, defendant cannot be said to have knowingly and voluntarily waived his right to appeal denial of the suppression motion. Moreover, motions to suppress on grounds of unlawful search and seizure are appealable even when the defendant has not entered a conditional plea. R. 3:5-7(d); State v. Greeley, 178 N.J. 38, 50-51 (2003).

The issue squarely presented to us, therefore, is whether the Supreme Court's decision in Eckel mandates a reversal of defendant's conviction. We find that it does. While the arrest occurred before our December 2004 decision in Eckel, the motion to suppress was not decided until March 24, 2005. Since the case was in the pipeline at the time of our decision and pending appeal at the time of the Supreme Court's affirmance, "pipeline retroactivity" applies. See Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005). Moreover, we ordinarily apply the law in effect at the time of decision. See State v. Kirchdoerffer, 156 N.J. Super. 172, 176 (App Div. 1978); State v. T.A.B., 228 N.J. Super. 572, 575 (Law Div. 1988).

Since the evidence adduced at the suppression hearing clearly demonstrates that defendant was in custody and secured in the troop car when the troopers searched the vehicle, the CDS evidence seized in the warrantless search must be suppressed. Eckel, supra, ___ N.J. at ___ (slip op. at 28). Because defendant pled guilty to one count of possession of CDS with intent to distribute in a school zone and the evidence to support that charge must be suppressed, his conviction is reversed and the judgment of conviction is vacated.

 
Reversed.

The State indicates in its brief that a lenient plea offer was made because the court had not yet decided the suppression motion.

(continued)

(continued)

10

A-3065-04T3

February 10, 2006