STATE OF NEW JERSEY v. F.N

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4122-06T24122-06T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

F.N.,

Defendant-Appellant.

_______________________________________

 

Argued February 10, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County.

Alan Dexter Bowman, argued the cause for appellant.

Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief).

PER CURIAM

Following the entry of guilty pleas to two offenses, defendant was sentenced to an aggregate sentence of twenty-two years of imprisonment, with a ten-year period of parole ineligibility. Defendant appeals from the denial of his motion to withdraw his plea or, alternatively, to enforce the terms of the plea agreement. For the reasons that follow, we reverse and remand for reconsideration.

I.

Defendant was charged in twelve of the nineteen counts in a Union County indictment. Defendant was charged with conspiracy to distribute heroin and/or cocaine, in a quantity of five ounces or more, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count one); possession of cocaine, N.J.S.A. 2C:35-10a(1) (count six); possession of cocaine, in a quantity of one-half ounce or more, with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count seven); possession of cocaine with intent to distribute on or within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count eight); unlawful possession of a .357 magnum handgun without a permit, N.J.S.A. 2C:39-5b (count nine); possession of a firearm during the commission of a crime involving the possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:39-4.1a (count ten); receiving stolen property, N.J.S.A. 2C:20-7 (count eleven); distribution of cocaine, in a quantity of five ounces or more, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count twelve); possession of cocaine, N.J.S.A. 2C:35-10a(1) (count thirteen); possession of cocaine, in a quantity of five ounces or more, with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count fourteen); possession of cocaine with intent to distribute on or within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count fifteen); and possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count sixteen).

Defendant was also charged in another Union County indictment with possession of a Smith and Wesson handgun and/or Rossi handgun by a person previously convicted of a drug offense, N.J.S.A. 2C:39-7b (count one); and possession of a .357 magnum handgun by a person previously convicted of a drug offense, N.J.S.A. 2C:39-7b (count two).

Defendant pled guilty to possession of five ounces or more of cocaine with intent to distribute, as charged in count fourteen of the first indictment; and possession of a weapon by a person not permitted to do so, as charged in count one of the second indictment. As part of the plea agreement, the State agreed to the dismissal of the remaining charges. The State also agreed to recommend the imposition of a twenty-year sentence, with an eight-year period of parole ineligibility on the drug conviction, and a ten-year sentence, with a five-year period of parole ineligibility on the weapons conviction.

On April 11, 2006, when the terms of the plea agreement were placed on the record, Scott Kraus (Kraus), the assistant prosecutor, added that:

[defendant] has come to the Prosecutor's Office and would like to cooperate in an investigation, which he tells the State that we would be able to seize between ten and [fifteen] kilograms of heroin, [and] that seizure will result in the [arrest] of at least one individual who is not a runner, not somebody just delivering.

If [defendant] makes good on that particular promise, I told [defendant] that I would be in a position to recommend to the Court that he be sentenced to a [fourteen]-year State prison term with a seven-year period of parole ineligibility, aggregate number.

After today I anticipate sitting down with [defendant and his attorney], and the detective and executing a formal agreement with him as we would do with anyone else in [defendant's] position in reference to cooperation.

The court asked defendant whether he understood those conditions. Defendant said that he did. Defendant provided a factual basis for his plea and the court found that the plea had been entered knowingly and voluntarily.

Thereafter, the State and defendant executed a written agreement, in which defendant agreed to cooperate with the Union County prosecutor's office. Paragraph 1 of the agreement requires defendant to "truthfully disclose all information" requested by the prosecutor's office. Defendant must make himself available "at all reasonable times" and he must contact the prosecutor's office "at least" three times a week. In addition, paragraph 2 of the agreement states that:

cooperation does not merely mean good faith effort, but rather includes and is not limited to making telephone calls, introduction of undercover police officers, controlled buys of controlled dangerous substances or weapons, or engaging in otherwise illegal conduct under the immediate control and specific direction of a representative of the Union County Prosecutor's Office, as well as providing information concerning criminal activity.

Paragraph 9 of the agreement provides that, if defendant's cooperation results in "substantial value to law enforcement," the prosecutor will make a recommendation to the sentencing judge that defendant's base sentence fall within a range of twenty to thirty years, with a parole disqualifier of between seven and thirteen years. Moreover, paragraph 10 of the agreement states that, if defendant's cooperation does not produce results of "substantial value to law enforcement," as determined by the prosecutor's office, defendant is subject to being sentenced to the maximum sentence set forth in the plea agreement.

In addition, paragraph 11 of the agreement states that if defendant's cooperation "produces results that are not of substantial value, but nevertheless have some value to law enforcement," defendant "will be given partial credit for those results." In that event, defendant's sentence can fall within the range of twenty to thirty years, with a period of parole ineligibility of between seven and thirteen years, to the maximum sentence allowed by law.

Furthermore, paragraph 13 of the agreement provides that, in determining whether the results of defendant's cooperation produces "substantial value, some value, or no value at all," the prosecutor will consider "(a) the number and nature of arrests made as a result of [defendant's] cooperation, (b) the quantity and quality of evidence seized as a result of [his] cooperation, and (c) the value of any property seized and forfeited as a result of [his] cooperation."

The agreement further states that it "will be deemed null and void" in the event of a material breach by defendant, which includes, but is not limited to, defendant's "[f]ailure to maintain regular contact with" the prosecutor's office; defendant's "[f]ailure to make [himself] available at all reasonable times[;]" and his failure to "provide information" or "make controlled buys of contraband as directed."

II.

In February 2007, defendant filed a motion to withdraw his plea. On February 28, 2007, the trial court conducted an evidentiary hearing on the motion.

Defendant testified that, initially, the State had decided to terminate his plea agreement because he had been a victim of a kidnapping and, in the prosecution of the persons allegedly responsible for that offense, the State would have to reveal that defendant was cooperating in a drug investigation. Defendant stated, however, that in October 2006, after the defendants in the kidnapping case pleaded guilty, his plea agreement was reinstated.

Defendant thereafter met with the investigators and gave them information about a specific target. Defendant also met with the target to arrange a controlled buy of heroin. The target told defendant that he needed some time and he would get back to him. The target later contacted defendant and said that he did not have heroin at that time but cocaine was available. The target also said that he was going on vacation and, when he returned, he would be ready to "rock and roll." Defendant testified that the target went on vacation to Colombia "right before the holidays."

Defendant contacted the investigators and informed them that the target had gone to Colombia on vacation. The investigators instructed defendant not to contact the target's "friends" but to wait until the target returned. Defendant said that he then identified a new target who had just come to New Jersey from Massachusetts and informed Kraus. Kraus told defendant to provide any information he had to the investigators and said that defendant had thirty days "[t]o get on the job."

Defendant gave an investigator information concerning the new target. He said that this new target had called him and told him that he was ready to supply the drugs whenever defendant wanted them. The investigator instructed defendant to do nothing. She said that she had to speak to her supervisor. Later, the investigator called defendant and told him that they had "to go back to the first target."

On cross-examination, defendant testified that he was de-briefed before he had entered his plea. He conceded that he had spoken with the investigators and informed them about a specific target. Defendant told the investigators that he had seen ten to fifteen kilograms of heroin in a "stash house." Defendant acknowledged that, after the agreement was reinstated on October 26, 2006, he did not inform the investigators that he could not "produce" the original target.

Defendant further testified that he and his attorney, Alan Dexter Bowman (Bowman), met with Kraus. Defendant asserted that, after the meeting with Kraus, he provided an investigator with information about the new target. Defendant admitted, however, that he did not know the new target's full name, address or license plate number.

Defendant further acknowledged that the agreement required him to contact the prosecutor's office at least three times a week. He admitted that, at times, weeks would go by and he would not call the investigator. Defendant said that, at those times, he had nothing to report.

Bowman also testified at the hearing. He said that it was his understanding that the agreement required defendant to provide information that would result in the seizure of ten to fifteen kilograms of heroin and the arrest of a major supplier who was responsible for the drugs. Bowman was asked whether there was some understanding as to the identity of the target at the time defendant entered into the agreement. Bowman stated that, although he was not at the meeting when this was discussed, it was his understanding that the agreement "was quantity based" and defendant's "interaction" with the prosecutor's office involved "a particular person."

Bowman also testified that the parties returned to court in January 2007, after the original target had left the country and gone on vacation in South America. Bowman said that, at that time, Kraus was concerned because so much time had passed. Defendant indicated that he had identified a new target and said that he believed he could meet the terms of the agreement within four weeks. According to Bowman, a week later, Kraus called and agreed to allow defendant to complete his cooperation if the court adjourned defendant's sentencing for four weeks.

Bowman said that in January 2007, the court adjourned the sentencing and defendant set about to fulfill his part of the agreement. Bowman stated that, thereafter, Kraus called and told him that defendant had to focus on the initial target, who was still away at that time. Bowman told Kraus that, in his view, the State had breached its agreement with defendant.

Kraus testified that defendant and Bowman never advised him that he was no longer able to do the ten to fifteen kilogram "job." He said that he never authorized either defendant or Bowman that defendant could do "another completely unrelated job."

Kraus also stated that on January 26, 2007, he and Bowman discussed the cooperation agreement. According to Kraus, Bowman said that defendant needed "one more cycle in order to complete [the] job[.]" Bowman told Kraus that the original target had returned from South America and [defendant] was "ready to do [the] job."

On cross-examination, Kraus said that, at the outset, the State had its "sights [set] on a particular investigation that [defendant] brought to the table." He stated that, before the State and defendant entered into the plea agreement, defendant's attorney wanted him to speak with defendant "to make sure that we all were on the same page[.]" Kraus conceded, however, that the plea agreement did not identify the particular person who was the focus of the agreement.

Kraus further testified that he did not oppose defendant's request for a thirty-day adjournment of the January 26, 2007 sentencing date in order to give defendant additional time to fulfill his obligations under the agreement. Kraus said that he went along with the adjournment despite his concerns about defendant's failure to keep in contact with the investigators. Kraus said that he recalled defendant saying that the target had returned from Colombia but, according to Kraus, defendant did not say anything about making "something else happen[.]"

The State also presented testimony from investigator Magaly Meoqui (Meoqui). She stated that she met with defendant on October 31, 2006, "[t]o be briefed on what he could do for [the State]." According to Meoqui, defendant made a commitment to provide a target who could "facilitate" the seizure of ten to fifteen kilograms of illegal drugs.

Meoqui stated that she contacted defendant in November 2006 and he called her on November 16, 2006. Defendant told her that he was "too busy" and could not complete the "job" involving the ten to fifteen kilograms, but he provided her with a license plate number. She told him that "[t]oo many days had passed and that we had to move."

Meoqui further testified that she next spoke with defendant on November 27th. Defendant told her that he was "tied up at a construction site." Meoqui called defendant again on November 28th. He said that he could not speak to her at that time but would call back in an hour.

Defendant did not call Meoqui back until December 3rd. Defendant said that he did not have any new information. He told Meoqui that the target was still on vacation. Meoqui heard from defendant next on December 21st. He left a message and she returned his call the following day.

Defendant said that he did not have any new information. Meoqui told defendant that she wanted to meet with him in order to go over the information that they had in order to see if defendant was still going "in the same direction[.]" She informed defendant that if he had a different approach, they would have to discuss it. Defendant said that he was "tied up." He never met with Meoqui.

Meoqui called defendant on January 3, 2007, and left a message on his voice mail. He did not call her back. Meoqui called defendant again on January 7th. She again left a message. Meoqui spoke to defendant on January 13th. She told him that the holidays were over and she wanted to make sure that "we were still on target."

Meoqui spoke with defendant next on January 27th. At that time, defendant gave her some general information about another target. She asked defendant to call the target and find out a little more detail about the "product", "how much," and the "prices[.]" She also told defendant that she wanted to know "what is [the target] coming down with, a car, a [license] plate," or any other information defendant could provide. Thereafter, defendant called with some information but he did not tell Meoqui the quantity of drugs involved.

Meoqui spoke to defendant again on February 1st. She asked him if the new target was connected to the original target. Meoqui testified that defendant never provided enough information to further the investigation of the original target or the new target. She stated that the investigation of the original target had come to "a complete halt." She added that the State knew "nothing" about the new target and she would have to speak to the prosecutors "to see where [they] can go with that."

On cross-examination, Meoqui stated that by February 1, 2007, defendant had provided her with some information about the "new" target, including the individual's cell phone number, the type of car he was driving, and the place where that individual was living. Shortly thereafter, Kraus instructed Meoqui to cease communication with defendant. Kraus said that the State could not go forward with the new target. She asserted that, up until that point, defendant had been cooperating with her.

III.

Following the evidentiary portion of the hearing, the trial court placed its decision on the record. The court stated that:

[t]his case had sentencing dates of October 13th, [2006], October 27th, December 22nd, January 26th and February 23rd and it was adjourned on many occasions to give this defendant an opportunity to come forward with this deal.

Looking at [the cooperation agreement], it is clear that [defendant] understood and was told that it was his responsibility to contact the Union County Prosecutor's Office at least three times a week and it is clear from the testimony here that he did not do that. However, Paragraph 8 sets forth what a material breach of the agreement is and it has subsections A through K and it [does not] stress the three times a week. It just says regular contact with the Prosecutor's Office and [defendant] might have thought he was in regular contact with the Prosecutor's Office because of the underlying circumstances.

Paragraph 9 states that, "I understand if my cooperation results in a substantial value to law enforcement, the Union County Prosecutor's Office will make a recommendation to the sentencing judge on my behalf.["]. . .

. . . .

. . . Clearly, it did not result in a substantial value to law enforcement. [There was n]othing in that regard.

However, Paragraph 11 states that, "I understand that if my cooperation produces results that are not of substantial value but, nevertheless, have some value to law enforcement, then I will be given partial credit for those results. In that event, my sentence can range between the parameters set forth in Paragraph 9." . . .

Finally, . . . Paragraph 12 . . . [states] that, "I understand the sentence to be imposed upon me is within the sole discretion of the sentencing judge and the judge may reject the recommendation of the Union County Prosecutor's Office and sentence me to a longer term than that which is recommended."

The problem with this case is this. There is no doubt in my mind that [defendant] and the prosecutor had some target in mind. Further, he never delivered on that target. However, [defendant] was not completely at fault by not being able to deliver on that target when they take off for months and go to Colombia. At that point [defendant] obviously thought that was his target because he stopped contacting the Prosecutor's Office on a regular basis because it was valueless. The guy wasn't here. When he returned, [defendant] intended to contact the Prosecutor's Office.

So he is not without fault, however. A lot of time, a lot of water went under the bridge and he just kind of lollygagged around and [did not] come forward with an underlying deal.

That being said, in the agreement noting that he could be given partial credit for some results, [defendant] did attempt to [obtain] some results other than that and because, quite frankly, I don't know if Mr. Kraus was frustrated but I was frustrated. I am holding up a lot of sentences on this case because of [defendant] and [his sentencing] has been adjourned [several times as] I said.

I believe it is within my discretion to sentence [defendant] to somewhere between [thirty] with a [fourteen] and [thirteen] with a seven and with Solomon-like wisdom I will split the baby in half . . .

The court decided to sentence defendant to an aggregate of twenty-two years of incarceration with a ten-year parole bar.

The court entered judgments of conviction on February 28, 2007. For the conviction of possession of cocaine with intent to distribute, as charged in count fourteen of the first indictment, defendant was sentenced to twelve years of incarceration, with a five-year period of parole ineligibility. For the conviction of possession of a weapon by a person previously convicted of a drug offense, as charged in count one of the second indictment, defendant was sentenced to a consecutive ten years of incarceration, with a five-year period of parole ineligibility. This appeal followed.

IV.

Defendant argues that the trial court erred by refusing to permit him to withdraw his plea or providing him with the "benefit" of the cooperation agreement. Defendant maintains that he made a good faith effort to cooperate with the State in its investigations. He asserts that it was his expectation that the prosecutor would facilitate his efforts. Defendant argues that the prosecutor "precipitously terminated access to the investigator and rendered compliance impossible."

We are convinced that the matter must be remanded to the trial court for reconsideration in light of the Supreme Court's recent decision in State v. Slater, N.J. _____ (2009). In Slater, the Court noted that motions to set aside a plea are committed to the sound discretion of the trial court. Id. at 10-11. "[P]re-sentence motions to withdraw a plea are governed by the 'interest of justice' standard in Rule 3:9-2(e), while post-sentence motions are subject to the 'manifest injustice' standard in Rule 3:21-1." Ibid. Therefore, when considering a motion to set aside a plea prior to sentencing, the court should "exercise [its] discretion liberally[.]" Id. at 10-11.

In Slater, the Court stated that, when a trial court evaluates a motion for withdrawal of a guilty plea, the court must consider and balance four factors: "(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) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 13. "No factor is mandatory; if one is missing, that does not automatically disqualify or dictate [the denial of] relief." Id. at 20.

Here, defendant did not assert a claim of innocence, colorable or otherwise. Thus, the first of the Slater factors is not applicable in this case. Defendant's motion did, however, implicate the other three Slater factors.

As stated previously, one of those factors is "the nature and strength" of defendant's reasons for seeking to withdraw his plea. Id. at 13. Another factor is whether there was a plea bargain. Ibid.

Defendant maintains that, although he and the prosecutor initially had a specific target in mind when the plea agreement was made, it was his understanding that he could meet his obligations under the agreement if he provided sufficient information to bring about the arrest of another target and the seizure of the required quantity of heroin.

Defendant further maintains that, when the prosecutor consented to an adjournment of the January 26, 2007 sentencing date, he agreed that defendant could focus on a new target so long as he achieved results within thirty days. Defendant asserts that the prosecutor breached that agreement by precipitously terminating the agreement.

Here, the trial court found that defendant and the prosecutor initially focused on a particular target. That may be so, but the court did not determine whether defendant would be deemed to have provided "substantial value to law enforcement" if he provided information that brought about the arrest of another target and the seizure of the required amount of heroin. Moreover, the court did not determine whether Kraus had agreed on January 26, 2007, to allow defendant to focus on a new target and whether he subsequently reneged on that agreement by insisting that defendant focus again on the initial target. In addition, the court did not address the issue of whether Kraus unreasonably failed to give defendant sufficient time to fulfill his obligations under the agreement.

We note that the written agreement between defendant and the prosecutor does not mention any specific target or require the seizure of a particular amount or type of illegal narcotic. The agreement merely provides that, in order to obtain a recommendation from the prosecutor for a sentence within a range of twenty to thirty years of incarceration, with a parole bar of between seven and thirteen years, defendant's cooperation must produce "results in substantial value to law enforcement[.]" The agreement does not, however, specify precisely what defendant must do in order to produce those "results."

Indeed, the agreement only states that the prosecutor's office will determine whether the results of defendant's cooperation are of "substantial value to law enforcement" by considering certain factors. Those factors include, but are not limited to, "the number and nature of arrests" and the "quantity and quality of evidence seized as a result of [defendant's] cooperation."

We recognize that, when the plea agreement was placed on the record, the State and defendant envisioned that defendant would provide information that would enable the State to seize between ten and fifteen kilograms of heroin and arrest at least one individual involved who is "not a runner." The agreement was executed thereafter and, as we have indicated, does not mention these objectives.

Thus, on remand, the trial court must give further consideration to "the nature and strength" of defendant's reasons for withdrawing his plea. The court must give particular attention to the terms of the cooperation agreement and the intent of the parties as reflected in the plain language of that document.

The trial court must also consider whether the cooperation agreement placed defendant on reasonable notice that his cooperation would not be deemed to result in "substantial value to law enforcement" unless his efforts resulted in the seizure of ten to fifteen kilograms of heroin and the arrest of the original target. In addition, the court must determine whether Kraus agreed to allow defendant to focus on another target and whether Kraus unreasonably terminated the agreement before defendant could complete his cooperation with either the original or the new target.

On remand, the trial court must also consider whether the withdrawal of the plea would result in unfair prejudice to the State or unfair advantage to the accused. In Slater, the Supreme Court explained that in weighing this factor, the court should consider, among other things, whether the passage of time has impaired the State's ability to prove its case and the State's efforts in preparing the case for trial. Id. at 18.

Accordingly, we remand the matter to the trial court for reconsideration in light of Slater. In its discretion, the court may permit the parties to present additional evidence. The court shall weigh all of the evidence in light of the applicable Slater factors and determine whether defendant should be permitted to withdraw his plea in the interest of justice. R. 3:9-3(e).

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

(continued)

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A-4122-06T2

RECORD IMPOUNDED

March 24, 2009