STATE OF NEW JERSEY v. DAMON E. BROWN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6376-05T46376-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMON E. BROWN,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 21, 2009 - Decided

Before Judges Parker and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 04-04-0692 and 05-02-0229.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Charles Cho, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Damon E. Brown appeals from the judgments of conviction entered in two indictments. In Indictment 04-04-0692, a judgment of conviction was entered on August 19, 2005 after a jury found defendant guilty of fourth degree simulating a motor vehicle insurance identification card, N.J.S.A. 2C:21-2.3(b). On that indictment, he was sentenced to a two-year term of probation on the condition of serving six months in the county jail and submitting to a drug evaluation and random urine testing.

In Indictment 05-02-0229, defendant pled guilty to third degree distribution of cocaine, and was sentenced to a term of three years probation conditioned on 374 days in the county jail, concurrent to the sentence imposed on Indictment 04-04-0692.

The narcotics charge arose on August 11, 2004 when defendant was arrested for selling cocaine to an undercover officer just over a year earlier. The insurance identification card charge arose on December 1, 2003 when he was stopped for speeding.

In this appeal, defendant argues:

POINT I

DEFENDANT'S GUILTY PLEA SHOULD BE VACATED, AS IT LACKED A SUFFICIENT FACTUAL BASIS. (Not raised below)

POINT II

THE JURY CHARGE WAS INCOMPLETE AND RESULTED IN AN UNFAIR AND UNCONSTITUTIONAL CONVICTION. (Not raised below)

POINT III

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS AND TO PRESENT A DEFENSE.

POINT IV

DEFENDANT WAS DENIED A FAIR TRIAL BASED UPON COMMENTS MADE BY THE PROSECUTOR ON SUMMATION.

POINT V

THE COURT ERRED IN NOT CHARGING A LESSER-INCLUDED OFFENSE.

POINT VI

DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED, AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VII

DEFENDANT'S SENTENCES WERE MANIFESTLY EXCESSIVE.

With respect to defendant's argument in Point I that the factual basis for his plea was insufficient, "the context of the entire plea colloquy" should be considered, including "the written plea agreement that defendant signed and defendant's consultations with his attorney." State v. Smullen, 118 N.J. 408, 415 (1990). "[T]he requirement to take a factual basis is not absolute. Every alleged deficiency in the taking of a factual basis does not constitute reversible error." State v. Pena, 301 N.J. Super. 158, 163 (App. Div.), certif. denied, 151 N.J. 465 (1997).

Here, defendant challenges the factual basis of his plea, claiming that he did not know the white powder he sold to the undercover officer was cocaine. During the plea colloquy, when the court asked him if he knew that the drug he sold was cocaine, he initially responded that he knew only that it was white powder. The court then told defendant that it could not accept the plea on that basis. Defendant immediately responded, "Yes, I did know it was cocaine." He then acknowledged that he sold it as cocaine and had no reason to dispute the test proving that the powder was cocaine. Defendant testified that the plea was made knowingly and voluntarily and the court accepted it.

Defendant now argues that "it is questionable whether [he] admitted that he was aware at the time of the alleged transaction that the substance at issue was in fact cocaine." This claim is belied by defendant's testimony under oath during the plea colloquy when he stated that he sold the white powder as cocaine. Moreover, defendant initialed the plea agreement on the first page where it describes the charge as "Distribution of CDS (cocaine)" and signed the agreement in its entirety.

Thus, in "the context of the entire plea colloquy" and "the written plea agreement that defendant signed," we are convinced that defendant knew the white powder was cocaine when he sold it and knew that it was cocaine when he entered his plea. Smullen, supra, 118 N.J. at 415.

With respect to defendant's arguments in Points II through VI, the State concedes that the jury instructions on the simulated insurance identification card charge were insufficient in that they failed to state the elements of the offense. The State agrees that defendant's conviction on that charge must be reversed and vacated. Accordingly, the matter is remanded for further proceedings on that charge.

Finally, defendant's sentencing argument now applies only to the charge to which he pled guilty. Defendant signed and acknowledged the plea agreement which recommended a sentence of 374 days in the county jail as a condition of probation. In reviewing defendant's criminal history, we note that this is his twenty-fifth arrest since 1991 and that he has been convicted of six indictable offenses, including a school zone offense, has been sentenced to at least three state prison terms and has violated probation and parole. At the time of this sentencing, he was in the Bergen County Jail on a detainer from New York for drug charges. Given defendant's prior criminal history, we find the sentence imposed in accordance with the plea agreement to be lenient.

We summarize our decision as follows. Defendant's conviction on Indictment 04-04-0692 is reversed and vacated. That matter is remanded to the trial court for further proceedings. Defendant's conviction and sentence in Indictment 05-02-0229 is affirmed.

Reversed and remanded in part; affirmed in part.

We note that the plea agreement indicated that the State recommended 364 days, which is a typical term imposed as a condition of probation. The sentencing transcript and the judgment of conviction, however, indicate that the sentence imposed was 374 days. Since defendant has already completed his term, the length of the term is moot.

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A-6376-05T4

June 12, 2009