STATE OF NEW JERSEY v. GUSTAVO MARIN

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1534-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GUSTAVO MARIN,

Defendant-Appellant.

________________________________________________________

October 20, 2010

 

Submitted September 7, 2010 - Decided

 

Before Judges Payne and Messano.

 

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Morris County, Indictment Nos. 05-05-0595, 05-07-0952 and 05-08-1007.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark P. Stalford, Designated Counsel, on the brief).

 

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gustavo Marin appeals from the judgment of conviction and sentence imposed following his guilty pleas to third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3), and second-degree distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1a; fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10b, in another indictment; and fourth-degree criminal trespass, N.J.S.A. 2C:18-3, in a third indictment. Prior to the imposition of sentence, defendant moved to withdraw his guilty pleas. The motion was denied, and, in accordance with the plea bargain, defendant was sentenced to a term of eight years' imprisonment on the violation of N.J.S.A. 2C:35-7.1. Concurrent sentences on the other two indictments were also imposed, as well as appropriate financial and other penalties.

Defendant's appeal of his sentence was listed on our Excessive Sentence Oral Argument calendar. The transcript of those proceedings reveals the panel concluded that defendant's argument regarding the denial of his motion to withdraw his guilty pleas would be more appropriately considered after a full briefing by the parties. Thus, the appeal was placed on a regular, plenary calendar.

Defendant now raises the following issues:

POINT I

 

"BLACHLEY MONUMENT" IS NOT A "PUBLIC PARK" WITHIN THE MEANING OF N.J.S.A. 2C:35-7.1[f]. THEREFORE, THE FACTUAL BASIS FOR THE CONVICTION OF DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE WITHIN 500' OF CERTAIN PUBLIC PROPERTY IS INSUFFICIENT.

 

 

POINT II

 

DEFENDANT'S FACTUAL BASIS AT HIS PLEA HEARING DOES NOT ESTABLISH THE ESSENTIAL ELEMENT OF N.J.S.A. 2C:35-7.1, THAT THE DRUG DISTRIBUTION OCCURRED WITHIN 500 FEET OF A "PUBLIC PARK." THEREFORE, DEFENDANT'S CONVICTION OF COUNT VIII OF INDICTMENT NO. 05-07-0952 MUST BE VACATED.

 

POINT III

 

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS PLEA OF GUILTY BASED UPON THE ERRONEOUS FINDING THAT "BLACHLEY MONUMENT" IS A PUBLIC PARK AS DEFINED IN N.J.S.A. 2C:35-7.1.

 

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

I.

On November 10, 2005, defendant appeared for trial.1 Through counsel, he indicated his desire to plead guilty to certain offenses contained in each of the three indictments pending. Defendant told the judge that he had initialed and signed the various pages of the plea form after consultation with his attorney.

Defendant acknowledged his understanding of the terms of the plea agreement, as explained by the judge, that no one had threatened him, and that he was voluntarily pleading guilty. With respect to count three of the drug indictment, defendant admitted under oath that he distributed cocaine on July 29, 2004, in a "parking lot at [a] Morristown fil[l]ing station." The judge then read from count eight of the same indictment which charged defendant with distributing cocaine on August 11 "within 500 feet of a public park, namely Blachely . . . Park." Defendant stated that he understood the charge and that he was guilty.

The judge asked defendant if this transaction occurred in the same parking lot as the earlier offense, and, if "in the vicinity of this parking lot[,] . . . [wa]s there an area that you know of that's designated [as] Blachley Park?" Defendant acknowledged it was "pretty close." Defense counsel stipulated that Blachley Park was within 500 feet of where the drug sale occurred. The judge concluded the proceedings by finding that defendant's guilty pleas to all three indictments were "knowingly, intelligently . . . [and] voluntarily entered," "after conversing with capable and competent counsel," and after providing "a [sufficient] factual basis."

Defense counsel withdrew various motions he had filed in anticipation of trial, including one for discovery as to whether Blachley Park was "[on] the open space inventory list" of the municipality. He explained that "if this was a park, it would be contained in that list." He further noted that "th[e] information was provided to [him]." Defendant himself advised the judge that he "want[ed] to take . . . back" a letter he sent to the judge indicating his previous dissatisfaction with his attorney. A sentence date of January 13, 2006 was set.

Shortly before sentence, defendant apparently wrote to the judge again indicating his dissatisfaction with trial counsel. Represented by different counsel, defendant moved to withdraw his guilty pleas on March 29, 2006. In August, the judge heard preliminary arguments, but the matter was adjourned to allow for the filing of additional briefs and exhibits.2 The motion was eventually decided on January 2, 2007.

Defendant contended that Blachley Park was not a park pursuant to N.J.S.A. 2C:35-7.1.3 Defense counsel argued that the area was simply "a monument" that lacked any indicia of being a park. He noted that there were "no benches . . . no seating. There's no room to play ball. There's no room to . . . picnic." He further noted that Morristown "never took any efforts to designate the area as a park except when [N.J.S.A. 2C:35-7.1] came in enhancing penalties for crimes committed within 500 feet of a public park." He also argued that the "zoning code d[id] not permit a park in the area[,]" and that Blachley Park lacked "[t]he minimum area for a park . . . ."

The prosecutor countered by noting that the municipality had "listed the park . . . on [its] . . . 500 foot town map delineating the drug free zones within . . . Morristown[,]" and had further enacted an appropriate ordinance adopting the map. He also noted that defendant "admitted that he sold drugs within 500 feet of a park." Lastly, the prosecutor observed that this defense "was clearly available at the time of the plea."

The judge reviewed the factual record regarding Blachley Park and concluded it was "a park [with]in the statutory definition of [N.J.S.A.] 2C:35-7.1." He further concluded that defendant "ha[d] failed to meet his heavy burden" to justify withdrawal of his guilty pleas, that "the finality of the[] proceedings outweigh[ed]" such a request, and that the "interest[s] of justice" required denial of the motion. The judge then imposed sentence in accordance with the plea bargain.

II.

Defendant argues that Blachley Park is not a "public park" within the meaning of N.J.S.A. 2C:35-7.1a. That statute provides:

Any person who violates subsection a. of N.J.S.[A.] 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree . . . .

 

N.J.S.A. 2C:35-5a(1), in turn, makes it unlawful for any person knowingly or purposely "[t]o manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog." N.J.S.A. 2C:35-7.1f provides that "'[p]ublic park' means a park, recreation facility or area or playground owned or controlled by a State, county or local government unit."

Defendant concedes that Blachley Park is owned by Morristown. However, he contends that, for a variety of reasons, it does not fit within the statutory definition. For example, he notes that it is less than 2000 square feet in area, is described on the town's tax records as a "[m]onument," is formed by the conjunction of three streets and contains only some public parking spaces, in addition to a memorial to fallen soldiers from the Spanish-American War. Blachley Park has only a "minimal grass area," no ball fields or playgrounds, and provides no benches or other types of seating. Furthermore, defendant argues that Morristown's zoning ordinance does not permit parks in the zone where Blachley Park is located, and that the minimum areas for "[p]ublic park[s]" permitted in the various zones far exceed the actual area of Blachley Park.

Whether Blachley Park is a "public park" so as to elevate defendant's admitted distribution of cocaine within 500 feet of that area to a second-degree offense is a question of law. See State v. Chambers, 396 N.J. Super. 259, 264 (App. Div. 2007) (noting that whether a particular building was "public building" for purposes of N.J.S.A. 2C:35-7.1f was a question of law), certif. denied, 193 N.J. 586 (2008). Therefore, we apply a de novo standard of review to the judge's decision. State v. Drury, 190 N.J. 197, 209 (2007).

No reported case has construed the term "public park" as used in N.J.S.A. 2C:35-7.1. As we said in Chambers, supra,

Our goal when interpreting a statute's meaning is to discern and implement the legislature's intent. As a starting point, we look to the statute's plain meaning and if the meaning of the text is clear and unambiguous on its face, [we] enforce that meaning. If, however, the meaning of the text is ambiguous, we construe a criminal statute in favor of the defendant. Nevertheless, in interpreting a criminal statute, rules of construction are subordinate to the goal of effectuating the legislative plan as it may be gathered . . . when read in the full light of its history, purpose and context.

 

[396 N.J. Super. at 264 (citations and quotations omitted).]

 

We conclude that Blachley Park is a "public park" under the plain meaning of the statute.

We note initially our disagreement with the State's argument that was, in large part, accepted by the trial judge. It contends that Blachley Park is a "public park" simply because Morristown included the area on its official "drug-zone map," N.J.S.A. 2C:35-7.1e, and adopted an enacting ordinance. Such a designation by the municipality may be "prima facie evidence of the location and boundaries" of the drug-free zones, ibid., but it is not proof that the area in question is a "public park." Nor do we accept as dispositive defendant's arguments relating to Blachley Park's incompatibility with portions of Morristown's zoning ordinance. A municipality need not conform public property to its presently-existing zoning ordinance, particularly when, although the record is not clear, it would appear that Blachley Park has existed for sometime since it commemorates war dead from a conflict more than a century ago.

The plain meaning of "park" is

[a] tract of land reserved for public use, as a. An expanse of enclosed grounds for recreational use within or adjoining a town. b. A landscaped city square. c. A tract of land kept in its natural state.

 

[Webster's II New College Dictionary 799 (2001).]

 

In the context of an eminent domain case, the Supreme Court, considering the nature of a "public square" -- as noted on an ancient deed and subsequently referred to by the populace as a "park" -- concluded the area in question was "a public place for recreation, relaxation and rest." State v. Cooper, 24 N.J. 261, 266 (1957).

Blachley Park, though small in size and lacking some of the amenities often associated with a "park," nonetheless provides a grassy area around a public memorial in the middle of Morristown's busy, central business district. Undoubtedly, the public may take a moment and "relax[] and rest" in this landscaped area around the memorial. We find no inconsistency between the actual conditions of Blachley Park, and the more expansive interpretation of "public park" urged by defendant.

In his second point, defendant contends that because Blachley Park is not a "public park" as defined by N.J.S.A. 2C:35-7.1, his guilty plea lacked a sufficient factual basis. In light of the conclusion we reached above, the argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).

Lastly, defendant argues that the trial judge erred in denying his motion to withdraw his guilty plea. Defendant's motion was decided before the Court's recent decision in State v. Slater, 198 N.J. 145 (2009). We apply the standards enunciated in Slater and conclude there was no error.

The Slater Court identified four factors that a judge must consider in deciding a defendant's motion to withdraw a previously-entered guilty plea. Id. at 157-58. The first is whether the defendant has "asserted a colorable claim of innocence." Id. at 157. Next, the judge should consider "the nature and strength of defendant's reasons for withdrawal." Id. at 157-59. The third factor is whether the plea was entered pursuant to a plea bargain. Id. at 158. And, lastly, the court must consider "whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Ibid. In all circumstances, the defendant bears the burden "'to present some plausible basis for his request, and his good faith in asserting a defense on the merits,'" and the motion is addressed to the trial court's sound discretion. Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 414 (1990)). We apply these standards to the facts presented.

We note that when he moved to set aside his guilty pleas, defendant asserted his claim of innocence based solely upon the legal argument that Blachley Park was not a "public park." In other words, defendant freely admitted distributing drugs on the day in question. Whether defendant knew he was within 500 feet of Blachley Park when he did so is immaterial. See N.J.S.A. 2C:35-7.1b. At the time he pled guilty, the legal defense of whether he was within 500 feet of a "public park" was clearly known to him, investigated and assessed by his trial attorney, and ultimately rejected as a reason not to accept the State's plea bargain. These factors, in conjunction with our analysis above, lead us to conclude that defendant did not assert a "colorable claim of innocence."

The "nature and strength of defendant's reason for withdrawal" were limited to the legal argument raised. Defendant did not argue that he pled guilty while misapprehending the plea bargain or its consequences, nor did he assert any facts similar to the examples cited by the Slater Court regarding this second factor. Slater, supra, 198 N.J. at 159-60.

Thirdly, defendant resolved all three of his open indictments through this plea bargain. As noted, it is clear that he fully understood the terms of the plea bargain, and that he entered into it knowingly, voluntarily, and after fully conferring with his attorney.

Lastly, the State asserts it would suffer prejudice if defendant were permitted to withdraw his guilty plea because it would then have to proceed to trial on three indictments. While we do not conclude that this is the kind of prejudice to the State that the Slater Court considered critical, id. at 161, we do note that defendant entered his guilty pleas after the plea cut-off date, on the date of trial, and when the State was prepared to proceed. See id. at 161-62 (noting in the context of prejudice that "[a]nother important consideration is whether trial has begun" given the "difficult task at best for the State to assemble its witnesses and prepare its case for a trial on a specified date") (quotation omitted).

We have "consider[ed] and balance[d] all of the factors." Id. at 162. We find no principled reason to reverse the denial of defendant's motion to withdraw his guilty pleas.

Affirmed.

1 The record does not reflect which of the three indictments was to proceed to trial first.

2 We have not been provided with a copy of a transcript from the August 2006 proceedings.

3 Defendant advanced other arguments that were rejected by the judge and which defendant has not raised on appeal.