STATE OF NEW JERSEY v. JAMIE HAYES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6622-06T46622-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JAMIE HAYES,

Defendant-Appellant.

__________________________________________________________

 

Submitted November 19, 2008 - Decided

Before Judge Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 06-03-0227 and 06-04-0261.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Jamie Hayes appeals from the denial of his motion to suppress evidence and the subsequent denial of his motion to withdraw his guilty plea. He raises the following points for our consideration:

POINT I

[POLICE OFFICER PAUL] SKILL'S TESTIMONY WAS NOT CREDIBLE AND THE DRUGS WERE NOT SEEN IN "PLAIN VIEW" NOR WAS THERE PROBABLE CAUSE FOR THE SEIZURE OF DEFENDANT. THE SEARCH AND SEIZURE VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS AND THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

POINT II

DEFENDANT SHOULD HAVE BEEN PERMITTED TO RETRACT HIS PLEA OF GUILTY.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Defendant was charged by the Cape May County grand jury in Indictment 06-04-0261-I with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); and second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 and 2C:35-5a(1). Defendant's first point on appeal challenges the judge's ruling that followed the October 20, 2006 evidentiary hearing held on defendant's motion to suppress evidence supporting this indictment.

Defendant had also previously been indicted by the grand jury in Indictment 06-03-0227-I and charged with two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3). After his motion to suppress was denied with respect to Indictment 06-04-0261-I, defendant entered guilty pleas to counts in both indictments. His second point on appeal challenges the motion judge's denial of his pro se request to retract those guilty pleas made at the time of sentencing.

I.

The State called North Wildwood police officer Paul Skill as its sole witness at the hearing on the motion to suppress. Skill was on patrol in his police car at 10:54 p.m. on the night in question when he noticed a vehicle behind him without its headlights on. Skill pulled his car over, let the other vehicle pass, and activated his overhead emergency lights. The other car eventually pulled over into the entrance of an assisted living complex for the elderly, Marina Bay Towers. Skill approached the vehicle which was driven by defendant.

When he told defendant the reason for the stop, defendant put on his headlights and stated that "he didn't need any problems." Skill asked him what he meant, and defendant told him that his license had been suspended. Skill then recalled that he had issued a prior summons to defendant, approximately one month earlier, for driving with a suspended license. Skill asked defendant why he had turned into Marina Bay Towers, and defendant responded that he was delivering a package to someone there. Defendant could not recall the last name of the person, nor what unit he lived in. When Skill asked to see the package, defendant showed him an empty plastic bag.

Skill told defendant he would issue him another summons and retreated to his police vehicle. The officer opened and closed the door of his police car hoping defendant would believe he entered the police cruiser. Instead Skill circled around the back of his car and approached defendant's passenger side door. From there, Skill saw defendant take a plastic bag that contained suspected crack cocaine from his vest pocket and place it in his lap. As he continued to look in the side view mirror back toward the police car, defendant took the cocaine from his lap and placed it in his sock. Skill then told defendant to place his hands in the air and ordered defendant out of the car when a backup officer arrived. Skill seized the drugs from defendant's sock.

Defendant testified that he pulled his vehicle into the entrance of the residential complex as soon as he saw the officer's lights in his rearview mirror. He denied ever telling Skill he was meeting someone there, or that he had a package for the person. Defendant contended that after a brief conversation about his vest, Skill ordered him out of the car and "strip searched" him, having defendant remove his pants, shoes, and socks. Defendant claimed that another officer held him from behind with his head on the car while Skill claimed to have found drugs in his sock. Defendant denied having any drugs on his person on the night in question.

Judge Carmen H. Alvarez determined that Skill was a credible witness and "d[id] not believe what [defendant] testified to." She found that Skill properly stopped defendant's car because of a motor vehicle violation, i.e., driving without headlights, and that defendant's license was suspended at the time. Judge Alvarez found that Skill made a "plain view observation" of the cocaine, and thus, "[t]here [was] no basis either in fact or in law to suppress the evidence."

Defendant argues before us that Skill's testimony "was not credible," that the plain view exception to the warrant requirement does not apply because Skill's observations of defendant's movements in the car were not "inadvertent," and that defendant was functionally under arrest without probable cause while Skill made the observations. We find all these arguments to be of insufficient merit as to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add these brief comments.

First, our standard of review requires us to give great deference to the factual findings made by Judge Alvarez, particularly since they were made with full opportunity to assess the credibility of both witnesses. State v. Locurto, 157 N.J. 463, 471 (1999). We need only determine whether her findings could have reasonably been reached based upon sufficient credible evidence. Ibid. In this case, Judge Alvarez's findings were reached based upon the credible evidence in the record and we find no basis to disturb them.

Defendant never raised the issue of "inadvertence" below, instead arguing only that Skill's testimony was not credible. The merits of the contention, however, are unavailing. To the extent the plain view exception requires observations made by the police be "inadvertent," that standard is satisfied if the police neither knew in advance that they would find evidence in the particular place, nor that it would be seized. State v. Johnson, 171 N.J. 192, 206 (2002). The testimony fully supports the conclusion that Skill did not know as he stood outside defendant's car that he would soon see defendant place cocaine from his vest into his sock.

Lastly, Skill undoubtedly had probable cause to stop defendant's vehicle and to issue him a summons. He further had ample suspicion based upon defendant's evasive answers to detain him for a reasonable amount of time to issue the summons and make further observations. Skill's actions were neither the functional equivalent of an arrest, nor the functional equivalent of an investigatory detention. Rather, as we noted in State v. Baum, 393 N.J. Super. 275 (App. Div. 2007), certif. dismissed, 192 N.J. 473 (2007), "[i]f during the course of the stop or as a result of reasonable inquiries initiated by the officer, the circumstances 'give rise to circumstances unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'" Id. at 287 (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). Once he made the observations he did, Skill had probable cause to arrest defendant and seize the drugs from his sock.

In sum, the first point defendant raises on appeal is without merit.

II.

On March 13, 2007, the trial date set for Indictment 06-04-0261-I, defendant, who was incarcerated at the time, initially refused to come to court and the proceedings occurred via "video from the jail." Judge Alvarez noted that defendant had been writing her letters "at least one a week on average," requesting to be sentenced to a drug rehabilitation program. She further noted that defendant's attorney had filed "virtually every motion that can be filed in the relevant cases," and that she had decided all of them. Defendant claimed he was "coming down off [a] high for a few days now," but the judge noted that defendant had no access to drugs in the jail. She also noted that defendant had a "competency evaluation," was determined "competent to proceed," and that defendant's letters demonstrated he was "certainly capable of articulating [his] thoughts." She urged defendant to attend the court proceedings, but firmly noted that the trial would proceed in defendant's absence if necessary. When defendant continued by indicating he was unsatisfied with his attorney, Judge Alvarez stated defendant was "competent," "extremely difficult," someone "who [wa]s never happy with his attorneys," "never happy with the responses he g[ot]," and "expresse[d] an interest in things which he kn[ew] he c[ouldn]'t have," like a drug rehabilitation program. The judge found defendant's "failure to get dressed and to be brought over [for trial] [was] a voluntary, knowing, and intelligent waiver of his right to be present at his trial."

Defendant apparently opted to appear, because the transcript of the proceedings indicates that he was present when the prosecutor, the judge, and defense counsel reviewed the State's plea bargain offer before summoning a jury panel. Defendant initially wanted to plead guilty only to the possession count of the indictment, and to stand trial on the remaining counts. The prosecutor objected, and the judge, who noted that the request was highly unusual, indicated to defendant that he must either accept or reject the entirety of the prosecutor's plea offer. That offer required defendant to plead guilty to possession with intent to distribute cocaine within 500 feet of public property, count three of Indictment 06-04-0261-I, and count two of Indictment 06-03-0227-I, charging defendant with possession of cocaine with intent to distribute. The State agreed to recommend a ten-year sentence with a period of parole ineligibility of three years, a concurrent sentence on the second indictment, and the dismissal of a third indictment against defendant in its entirety.

The record reveals that Judge Alvarez spent nearly two hours determining whether defendant wished to attend the proceedings, accept the plea bargain, or commence trial. Ultimately, defendant advised the judge that he wished to accept the State's plea bargain, though he refused to sign the plea form, and continued to ask questions repeatedly about the plea offer. Defense counsel continued to explain the terms of the agreement to defendant on the record. Eventually defendant signed the plea form.

Defendant was then placed under oath and refused to provide an adequate factual basis, prompting Judge Alvarez to indicate that the case was necessarily going to proceed to trial. After some further discussions, defendant provided a sufficient factual basis to support both pleas of guilty. Judge Alvarez then inquired of defendant whether he understood all of the essential rights he waived by pleading guilty, and defendant answered each question affirmatively.

At sentencing, defendant moved pro se to set aside his guilty pleas. He contended he was high on drugs on the day he pled guilty, that his attorney forced him to accept the plea bargain, and that he did not understand its terms. Judge Alvarez rejected all these arguments, and she sentenced defendant in accordance with the plea bargain.

Defendant argues before us that he did not enter his guilty pleas voluntarily and that the judge should have granted his motion to withdraw those guilty pleas prior to sentencing. We find no merit whatsoever to the contention.

The trial judge is entitled to exercise broad discretion when considering a motion to withdraw a guilty plea. State v. Bellamy, 178 N.J. 127, 135 (2003). "[T]he burden rests on the defendant to establish why the motion to withdraw his or her guilty plea should be granted." State v. Luckey, 366 N.J. Super. 79, 86 (App. Div. 2004). A defendant must "present some plausible basis for his request, and [] good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion." State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974). Although the judge should exercise her discretion liberally when the motion is made before sentence, "[l]iberality in exercising discretion does not mean an abdication of all discretion." Ibid. Because of the important public interest in finality, a "'defendant's burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier' when the plea is entered pursuant to a plea bargain." State v. Smullen, 118 N.J. 408, 416 (1990)(quoting Huntley, supra, 129 N.J. Super. at 18). In the end, "the measure of what constitutes [a] fair and just reason for withdrawal must be reposed in the sound confidence of the [trial] court." Id. at 417.

Here, defendant argues that his decision to plead guilty was not made freely and "voluntarily . . . with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2. However, the record completely belies this. The plea bargain was explained extensively by defense counsel, the prosecutor, and the judge on the record. Defendant clearly understood its terms. Defendant executed a written plea form that set forth the rights he waived as a result of pleading guilty. See State v. Herman, 47 N.J. 73, 77 (1966) (defendant's execution of plea form "weighs heavily against a contention that the plea was not entered voluntarily and understandingly").

In short, the record does not demonstrate that defendant's free will was overborne; rather, the record reveals a manipulative defendant who took every opportunity to avoid either proceeding to trial or accepting the plea bargain offered by the State. Furthermore, there is absolutely nothing in the record to support defendant's claim that he had ingested narcotics and was unable to understand what was occurring at the time of the court proceedings. Likewise, there is no support in the record for the claim that his attorney coerced him into accepting the plea agreement. Finally, defendant has failed to advance any basis for a good faith defense on the merits to the charges to which he acknowledged his guilt. Judge Alvarez did not mistakenly exercise her broad discretion by denying defendant's motion to withdraw his guilty pleas.

Affirmed.

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A-6622-06T4

December 18, 2008