STATE OF NEW JERSEY v. JOHN T. FARRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1439-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN T. FARRY,

Defendant-Appellant.

________________________________

April 20, 2011

 

Submitted: December 6, 2010 Decided:

 

Before Judges C.L. Miniman and LeWinn.

 

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-12-01938.

 

Herlihy & Young, attorneys for appellant (Francis Rodman Rupp, on the brief).

 

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, on the brief).

PER CURIAM

Defendant John Farry appeals from his conviction for possession of cocaine with intent to distribute in excess of five ounces, contrary to N.J.S.A. 2C:35-5b(1), entered upon his plea of guilty to the charge. Because defendant's nonspecific disagreement with the police reports did not rise to the level of a colorable claim of innocence, and a factual basis for his plea was not constitutionally required, we affirm.

We glean the following information from the persistence investigation report (PCI), albeit recognizing that defendant at sentencing expressly disagreed with the accuracy of same respecting his involvement in the events recorded in the incorporated police reports. Thus, for purposes of this appeal, we treat the following background information as the State's allegations only.

As a result of information gleaned from a confidential informant and a wiretap, the Special Operations Group (SAG) in the Ocean County Prosecutor's Office set up surveillance at the Cheese quake Service Area located between Exits 123 and 124 of the Garden State Parkway on May 31, 2007. At about 11:45 p.m., investigators observed a black Cadillac with tinted windows pull into the parking lot. Three white males, defendant, Robert Ballwin and Thomas Ballwin, all known to the investigators from prior police contact, exited the vehicle. They walked over to an Hispanic male, later identified as Ricardo Melendez, who was standing next to a dark-colored vehicle with New York license plates. No interception was made at that time. The surveillance was continued for the next week.

On June 10, 2007, investigators intercepted another call between defendant and Melendez during which they again arranged to meet at the Cheese quake Service Area in the early morning hours of June 15th. The SAG investigators determined to effect an interception on that date. Surveillance was initiated at the Cheese quake Service Area during the evening hours of June 14, 2007. During that surveillance, the police intercepted two telephone calls between defendant and Melendez coordinating their arrival. Melendez advised that he would be operating a van.

A dark blue minivan was identified in the lot of the service area. The officers observed Melendez and another Hispanic male, Jose Corporeal, get out of the van and walk into the food court at the service area. Shortly thereafter, Thomas Bulwin's green Honda Accord pulled into the service area parking lot with Bulwin driving and defendant in the front passenger seat. Both defendant and Bulwin exited the Honda and went into the food court. Investigators entered the food court and observed all four men sitting together at a table. Moments later, all four men exited the food court and returned to their respective vehicles.

Both vehicles were subsequently detained before they could leave the service area. When defendant was detained, he inquired as to the reason for the detention, and the investigators informed him that it was a narcotics investigation. He stated that he "didn't know what they were talking about." He further stated that the only thing he had on him was money and, when asked how much, he replied that he had $8400 in his right front pocket. The money was confiscated. After the occupants of the blue minivan identified themselves, the investigators conducted a search of the minivan and recovered 500 grams of suspected cocaine. At 1:50 a.m. on June 15, 2007, investigators executed a search warrant at defendant's residence and recovered six packets of Effexor, two air rifles, a plastic gun, a replica submachine gun, BB pellets, fireworks, financial records, and a computer tower.

Defendant was indicted along with Melendez, Cortoreal, both Bulwins, and Philip Bruno, Jr. Defendant was charged with the following crimes: one count of second-degree conspiracy to possess cocaine with intent to distribute more than five ounces on May 31, 2007, contrary to N.J.S.A. 2C:5-2 (Count Three); third-degree possession of cocaine on June 15, 2007, contrary to N.J.S.A. 2C:35-10a(1) (Count Five); and first-degree possession of cocaine with intent to distribute in excess of five ounces on June 15, 2007, contrary to N.J.S.A. 2C:35-5b(1) (Count Six).

On April 23, 2008, defendant appeared before a judge to enter a plea of guilty to Count Six. The prosecutor agreed to recommend an eighteen-year term in prison with a five-year parole disqualifier in exchange for defendant's plea to Count Six. The prosecutor also agreed to dismiss the remaining charges against defendant and to dismiss a disorderly persons offense charged against defendant's wife. The prosecutor also represented that defendant was subject to an anti-profiteering penalty of $100,000.

The judge carefully elicited testimony from defendant that he understood the nature of the offenses with which he had been charged, he understood the plea, and he knowingly and voluntarily agreed to the plea. The judge went over the plea form and elicited defendant's agreement to each of the terms, his understanding of them, and his satisfaction with counsel.

Defendant's counsel then examined him with respect to the offense. After reviewing the telephone calls between defendant and Melendez, which defendant admitted, the following testimony was elicited:

Q. And you went up to the rest area at . . . Wall Township on the Garden State Parkway; is that correct?

 

A. Yes.

 

Q. And on your person you had approximately $8,400; is that correct?

 

A. Yes.

 

Q. And that was money that you had in order to purchase the CDS from Mr. Melendez?

 

A. Yes.

Q. And when you received the CDS, were you going to take it back to the Toms River area and distribute it?

 

A. Yeah.

 

Q. And you're aware that you went into the restaurant at Wall Township at the rest area; is that correct?

 

A. Yes.

 

Q. And you met with Mr. Melendez; is that correct?

 

A. Yes.

 

Q. And then you and he went to your separate cars; correct?

 

A. Yes.

 

Q. And then the police came; is that correct?

A. When we were leaving -- when I was leaving.

 

Q. Right. And they arrested both of you?

 

A. Yes.

 

Q. And he had the drugs that he was going to give to you on his person; is that correct?

 

A. Yes.

 

Q. And those drugs were to be given to you; is that correct?

 

A. Some of them.

 

Q. Right. Not all of them, some of them, at least in excess of 5 ounces; correct?

 

A. Yes.

 

Q. And you had access to that; is that correct?

 

A. Yes.

 

Q. And based on that, you were going to take those drugs back and sell them; is that correct?

 

A. Yes.

The prosecutor then established that defendant intended to take possession of between 270 and 280 grams of cocaine, which defendant agreed was in excess of five ounces. The judge expressed his satisfaction with the factual basis and accepted the plea.

After being sentenced in accordance with the plea, defendant appealed and contends that the factual basis was insufficient to support a guilty plea to first-degree possession of cocaine with intent to distribute in excess of five ounces.

"At the outset we note that despite defendant's guilty plea . . . , he has retained the right on appeal to raise as reversible error the absence of 'a factual basis for the plea.'" State v. Butler, 89 N.J. 220, 224 (1982) (quoting R. 3:9-2 and citing State v. Taylor, 80 N.J. 353, 362 (1979); State v. Nichols, 71 N.J. 358, 361 (1976)). Although a challenge to the adequacy of the factual basis could be raised by motion to withdraw a plea, "[a]lternatively, defendant could have pursued an appeal within forty-five days of the date of that Judgment of Conviction." State v. Mitchell, 374 N.J. Super. 172, 175 (App. Div. 2005).

A plea bargain does not "obviate the need to establish a sufficient factual basis for the plea." Butler, supra, 89 N.J. at 224 (citing Taylor, supra, 80 N.J. at 362). "The factual basis should contain all elements of the crime to which the defendant is pleading guilty." State v. Pena, 301 N.J. Super. 158, 162 (App. Div.) (citing State v. Sainz, 107 N.J. 283, 293 (1987)), certif. denied, 151 N.J. 465 (1997). Defendant must have a full understanding that his actions were in violation of the law. Ibid.

If a sufficient factual basis for a plea does not exist, "then a reviewing court should vacate the guilty plea and place both, the defendant . . . and the prosecution, in the position they would have been in if the plea had properly been rejected." State ex rel. G.C., 359 N.J. Super. 399, 405 (App. Div. 2003) (citing State v. Barboza, 115 N.J. 415, 424 (1989)), rev d on other grounds, 179 N.J. 475 (2004). The reviewing court must "examine what action is proscribed by the charge to which [defendant] pled guilty." Ibid.

However, the absence of a sufficient factual basis does not necessarily mandate a reversal. Pena, supra, 301 N.J. Super. at 163. Rather, "[a] factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own." State v. Mitchell, 126 N.J. 565, 577 (1992) (citations omitted). Where there is no contemporaneous claim of innocence, the conviction may be upheld. State v. D.D.M., 140 N.J. 83, 96 (1995) (upholding conviction despite absence of factual basis where defendant indicated his "satisfaction with his attorney's representation, his acknowledgment of a prior record for similar offenses, and his understanding of the crime and the significance of his guilty plea").

The same requirement for a contemporaneous claim of innocence applies where a defendant files a motion to withdraw his plea before or after sentencing. State v. Slater, 198 N.J. 145, 158 (2009). This is so because the judge's findings at the plea create a "formidable barrier" that a defendant must overcome. Id. at 156 (citations and internal quotation marks omitted). "A bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Id. at 158 (citations omitted).

Further, a "defendant cannot attack the sufficiency of the factual basis for his plea in the absence of an indication that he seeks to withdraw that negotiated plea and stand trial on all of the original charges against him." Mitchell, supra, 374 N.J. Super. at 175-76 (citations omitted) (finding "nothing in the record to reflect that defendant seeks to withdraw the plea"); accord State v. Lasane, 371 N.J. Super. 151, 166 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005); State v. Cheung, 328 N.J. Super. 368, 370 (App. Div. 2000); State v. Staten, 327 N.J. Super. 349, 359-60 (App. Div.), certif. denied, 164 N.J. 561 (2000).

Here, defendant never specifically asserted his innocence during the plea or sentencing hearing;1 he merely stated that he did not agree with the description of his involvement in the events recorded in the police reports incorporated into the PSI and asserts on appeal that the factual basis is insufficient to prove that he constructively possessed the cocaine. We are satisfied that his nonspecific disagreement with the police reports does not rise to the level of a colorable claim of innocence. Slater, supra, 198 N.J. at 158. Thus, a factual basis was not constitutionally required, Mitchell, supra, 126 N.J. at 577, and its absence does not mandate a reversal of his conviction.

Even if we were to consider the alleged absence of a factual basis, we would still affirm. N.J.S.A. 2C:35-5 provides as follows:

a. Except as authorized by P.L. 1970, c. 226 ([N.J.S.A.] 24:21-1 et seq.), it shall be unlawful for any person knowingly or purposely:

 

(1) To . . . distribute . . . , or to possess or have under his control with intent to . . . distribute . . . , a controlled dangerous substance . . . .

 

b. Any person who violates subsection a. with respect to:

 

(1) Heroin . . . or coca leaves and any salt, compound, derivative, or preparation of coca leaves . . . in a quantity of five ounces or more . . . is guilty of a crime of the first degree.

 

[N.J.S.A. 2C:35-5a(1), b(1).]

 

Clearly, "possession or control" is a necessary element of the crime.

The Criminal Code generally requires proof of a voluntary act and provides that "[p]ossession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." N.J.S.A. 2C:2-1c. Of course, here there was no actual physical possession or receipt of the cocaine as it never changed hands. However, that "is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists." State v. Brown, 80 N.J. 587, 597 (1979). Constructive possession may be found where a defendant is present at a location where contraband is located, has knowledge of its presence, and circumstances are such that it is likely defendant is involved in the criminal enterprise. State v. El Moghrabi, 341 N.J. Super. 354, 364-68 (App. Div.), certif. denied, 169 N.J. 610 (2001). That would certainly seem to apply here.

Defendant, however, cites State v. Roldan, 314 N.J. Super. 173 (App. Div. 1998), in support of his claim that he never had constructive possession of the cocaine. However, the facts in that case are distinguishable. There, the State Police, acting on a tip, intercepted and arrested the courier before the cocaine was delivered to defendant. Id. at 177. The courier agreed to cooperate with the State Police and continue with the planned drug transaction while allowing a detective to pose as his son-in-law and engage the defendant. Id. at 177-78. Arrangements were made for delivery of the cocaine at a motel. Ibid. Shortly after, the defendant arrived at the motel, where he met another individual, and they both started walking towards the motel but quickly returned to their car and were arrested. Ibid. We concluded that the evidence was sufficient to support the defendant's conviction for conspiracy, but not his convictions for actual or constructive possession and possession with intent to distribute, id. at 179, because once the State Police confiscated the cocaine, the defendant could no longer assert direct control over it, id. at 186.

Unlike Roldan, here the police never seized the cocaine prior to defendant's arrest. At his plea hearing, defendant admitted to his telephone calls with Melendez on June 15, 2007, including one from his home during which he made arrangements to purchase in excess of five ounces of cocaine from Melendez. He testified that he went to the Parkway service area in Wall with $8400 on his person to purchase the cocaine and that, when he received it, he was going to return to Toms River to distribute it. He admitted meeting Melendez in the restaurant of the rest area and then each returning to their cars when they were arrested. He further admitted that Melendez had the cocaine he was to purchase on his person and that some of the drugs were to be given to him. He further admitted that he "had access" to the drugs. Indeed he did. He was in the immediate vicinity and was able to assert direct control over the drugs upon payment for them, which he intended to do. Thus, we find no occasion to disturb his plea, conviction, and sentence.

Affirmed.

1 Neither has he indicated that he wishes to stand trial on all of the charges.