STATE OF NEW JERSEY v. ROBERT FRIEDLAND



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4757-05T44757-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT FRIEDLAND,

Defendant-Appellant.

______________________________________


Submitted December 3, 2007 - Decided

Before Judges A. A. Rodr guez and C. L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. 04-10-2529.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Friedland was initially represented by counsel from the Office of the Public Defender (OPD) on three counts of second-degree issuing bad checks, N.J.S.A. 2C:21-5. Defendant moved to represent himself. The judge granted the request and ordered an Assistant Deputy Public Defender to be "standby" counsel. Defendant moved pro se to suppress evidence. Following an evidentiary hearing, the judge denied this motion. Defendant then filed pro se several motions. These were also denied. Thereafter, defendant moved successfully to reopen the motion to suppress. Upon re-hearing, the motion to suppress was denied again.

After all of these motions were decided, defendant negotiated a plea agreement with the State. He agreed to plead guilty to one count of second-degree issuing a bad check. In exchange, the State agreed to dismiss the two remaining charges and to recommend sentencing as a third-degree offender and imposing a three-year custodial sentence. In addition, the State agreed that jail credits from Monmouth and Ocean Counties would be awarded and that "[a]ll property [would] be returned to [defendant] when he is released from prison." In defendant's factual basis for the entry of his plea, he admitted that he knew when he issued a check for $450,000 that there were insufficient funds to cover it. The judge imposed a three-year term with 567 days credit for time already served. We affirm.

The facts can be summarized as follows. Defendant had plans to purchase a bed and breakfast in Point Pleasant Beach for $1,450,000. The sellers were represented by Richard Pepsny, Esq. Defendant issued a check in the amount of $450,000 to Pepsny's trust account. This check was not honored due to an insufficient amount of funds. The Ocean County Prosecutor's Office began an investigation and issued arrest warrants for defendant. Two detectives traveled to Elizabeth to arrest defendant. They, along with Elizabeth police officers, went to defendant's basement apartment on Westminster Avenue. Defendant was handcuffed, placed in one of the police vehicles, and driven to police headquarters. No search of the apartment took place at that time. The officers told defendant that they would obtain a search warrant and return to the apartment. Defendant gave the officers a key to the apartment so that they would not have to break down the door.

The officers obtained a search warrant from a Superior Court judge for the apartment and two vehicles used by defendant. The warrant provided that the following items could be removed by the police:

[A]ny and all records including but not limited to checks, ledgers, currency, receipts, titles, deposit slips, bank statements, financial wire statements, financial records, strong boxes, safes, computer systems, computer programs, computer software, computer hardware.

Also . . ., any or all records written or electronic. Any and all peripheral devices including but not limited to operating systems, software and associated manuals, et cetera.

The officers executed the warrant and seized several items, both from the apartment and from the cars, including computers and documents linked to defendant.

On appeal, defendant contends:

IT WAS ERROR TO DENY DEFENDANT'S MOTION TO RECUSE THE TRIAL COURT.

We disagree.

This contention is procedurally barred by virtue of defendant's guilty plea. Usually, a guilty plea is a "break in the chain of events" and prevents a defendant from raising on appeal any non-jurisdictional defects (even of constitutional dimension) which occurred prior to the plea. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed.2d 235, 243 (1973); State v. Taylor, 140 N.J. Super. 242, 244-45 (App. Div. 1976). There are two exceptions to this general rule. The first is that the denial of a motion to suppress evidence may be reviewed on appeal. R. 3:5-7(d). The second arises pursuant to R. 3:9-3(f), which provides that "a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion," with the approval of the court and consent of the prosecutor. This rule is aimed primarily at the pretrial issues encompassed by R. 3:13-1(b); that is, confession and identification issues. Pressler, Current N.J. Court Rules, comment 7 on R. 3:9-3 (2008).

Here, defendant did not enter a conditional plea. A denial of a motion to recuse does not survive the entry of a plea of guilty. Moreover, on the merits we conclude that the denial of the recusal motion was not harmful error. Motions to recuse are governed by both court rules, R. 1:12-1 and -2, and a statute, N.J.S.A. 2A:15-49. A motion for recusal must be made to the judge sought to be disqualified. R. 1:12-2; N.J.S.A. 2A:15-50; Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App. Div.), certif. denied, 77 N.J. 468 (1978). The disposition of the motion is entrusted to the sound judgment of that judge. Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990); State v. Flowers, 109 N.J. Super. 309, 311-12 (App. Div. 1970). If the ground for recusal is subjective, such as bias or other incapacity to sit fairly, the judge ordinarily has readiest insight into his or her own mind. If the ground for recusal is a problem of appearances (R. 1:12-1(f)), then the judge is in as good a position as anyone to evaluate it.

Here, we find no abuse of discretion. There is no warrant for us to intervene.

Defendant also contends:

IT WAS ERROR FOR THE COURT TO ALLOW THE DEFENDANT TO REPRESENT HIMSELF.

We disagree.

Defendant requested to represent himself and rejected assistance from the OPD. Pursuant to State v. Reddish, 181 N.J. 553, 591-593 (2004), the judge elicited the following information from defendant: (a) defendant had never represented himself before; (b) he held a bachelor's degree in accounting from Long Island University; (c) he had worked for an attorney in New York City for six years doing research and "writing briefs"; (d) he ran "a couple of businesses"; and (e) he had done investments and "ran about four companies." The judge then covered sentence exposure with defendant, who was knowledgeable about the statutory range of sentences for second-degree offenses and the concepts of consecutive and concurrent sentences. Defendant also indicated that he had read the statutes "that pertain to myself." The following colloquy took place:

THE COURT: You understand that if you represent yourself, you are subject to the rules of evidence, you are subject to the rules of the Court, and you're subject to the same kind of restrictions that attorneys have in the way that they present a case.

DEFENDANT: I understand.

THE COURT: Do you understand that if you decide that if you want to testify you're going to have to question yourself somehow. If you decide that you don't want to testify, you're going to be making statements to a jury, you're going to make an opening statement probably, you're going to make a closing argument to the jury. If you haven't testified, that sometimes it doesn't look so good in the eyes of the jury, even though they're told they can't use that against you. Do you understand that?

DEFENDANT: I understand.

THE COURT: Knowing all the things we talked about, you still want to represent yourself?

DEFENDANT: Yes, Your Honor.

Defendant indicated that he was waiving his right to representation by the OPD. In light of defendant's answer, the judge granted the motion.

Defendant concedes that the judge made the appropriate inquiry. However, he alleges that the judge failed to actually determine whether defendant was capable of representing himself. We disagree.

The right of self-representation may not be denied where defendant's desire, understanding and ability to do so are clear. State v. Thomas, 362 N.J. Super. 229, 243 (App. Div.), certif. denied, 178 N.J. 249 (2003); State v. Crisafi, 128 N.J. 499, 512-14 (1992); State v. Williams, 284 N.J. Super. 142, 164 (Law Div. 1995), aff'd, 309 N.J. Super. 117 (App. Div.), certif. denied, 156 N.J. 383 (1998). From our review of the record, we conclude that the judge was correct in granting the motion because defendant knowingly waived his right to counsel and appeared capable of representing himself. We perceive no error.

Defendant also contends:

THE COURT ERRED BY DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

We disagree.

This was a search pursuant to a valid warrant issued by a judge. "A search based upon a warrant is presumed to be valid once the State establishes that the search warrant was issued in accordance with the procedures prescribed by the rules governing search warrants." State v. Valencia, 93 N.J. 126, 133 (1983). In such instance, the defendant bears the burden of demonstrating that a search made pursuant to the warrant is invalid. State v. Sullivan, 169 N.J. 204, 211 (2001).

Here, the judge found that defendant had failed to meet this burden. There was no showing "that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable." Valencia, supra, 93 N.J. at 133. The judge also found that the warrant particularly described the objects sought by the search. State v. Reldan, 100 N.J. 187, 196-97 n.2 (1985). These findings, which are supported by the evidence presented at the hearing on the motion to suppress, are binding on us. State v. Johnson, 42 N.J. 146, 162 (1964).

Defendant also contends:

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

We disagree.

Defendant was fifty-eight years old at the time of sentencing. He has a history of numerous indictable convictions for: grand larceny; securities fraud; bad checks over $200 (two convictions); theft by deception (four convictions); and criminal attempt to commit theft. He has been sentenced to State prison on two occasions. He also has one disorderly person's conviction.

The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a: (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence. The judge found none of the mitigating factors listed in N.J.S.A. 2C:44-1b. The judge imposed a three-year term.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. Johnson, supra, 42 N.J. at 161. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984).

We also conclude that the sentence complies with the mandates of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.2d 403 (2004); State v. Abdullah, 184 N.J. 497 (2005); and State v. Natale, 184 N.J. 458 (2005) (Natale II). The sentence is at the mid-point of the sentencing range. Therefore, the constitutional problems present in Blakely and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2363, 147 L. Ed.2d 435, 455 (2000) are not present here.


Affirmed.

(continued)

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A-4757-05T4

June 18, 2008