STATE OF NEW JERSEY v. PERVIS L. SAMUELS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4377-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PERVIS L. SAMUELS,

Defendant-Appellant.

___________________________________________

March 14, 2012

Submitted February 28, 2012 - Decided

Before Judges Carchman and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-02-0096.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Jeffrey S.Chiesa, AttorneyGeneral, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, on the brief).

PER CURIAM

In this appeal, we consider defendant's arguments that he was detained on a constitutionally-defective complaint warrant, that the judge erred in denying defendant's application to withdraw his guilty plea, and that the sentence imposed was excessive. We find no merit in defendant's arguments and affirm.

On September 22, 2009, defendant was arrested in Plainfield and charged with various drug offenses. At that time, the charges were contained in a complaint warrant, which included no statement regarding probable cause for the arrest. On numerous occasions in December 2009 and January 2010, defendant complained to the trial court that there was an unreasonable delay in the presentation of his case to the grand jury and that the process by which he was held in the county jail was flawed, including his assertion that the complaint warrant did not contain a statement regarding probable cause. In responding, the trial judge rejected defendant's contentions; the judge, however, did state that he was "troubled" by the delay in defendant's first appearance.1 As for defendant's assertions regarding the complaint warrant, the judge observed that all police desk lieutenants "are cross-deputized as" deputy court administrators, and "are authorized to administer oaths and make findings of probable cause on all but the most serious offenses." Any irregularities, the judge concluded, were "insufficient to justify dismissal," citing Rule 3:3-4.

Defendant continued, without success, to press his objections to the form of the complaint upon which he had been and continued to be incarcerated. Finally, on February 4, 2010, the grand jury returned an indictment, charging defendant with: third-degree distribution of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); third-degree distribution of CDS, cocaine, within 1,000 feet of school property, N.J.S.A. 2C:35-7; second-degree distribution of CDS, cocaine, in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1; second-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2; third-degree possession of CDS, cocaine, N.J.S.A. 2C:35-10a(1); second-degree possession of CDS, cocaine, with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); second-degree possession of CDS, cocaine, with the intent to distribute in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1; third-degree possession of CDS, heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of CDS, heroin, with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); second-degree possession of CDS, heroin, with the intent to distribute in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1; fourth-degree possession of CDS, marijuana, with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12); and third-degree possession of CDS, marijuana, with the intent to distribute in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1.

Defendant later moved for dismissal, reprising his earlier arguments regarding the content of the complaint warrant. The judge concluded that once defendant was indicted, any alleged defect in the complaint warrant was irrelevant. Defendant then entered into a plea agreement with the State and pled guilty to third-degree distribution of CDS, cocaine, within 1,000 feet of school property; the State agreed to a dismissal of the indictment's remaining eleven counts and to recommend a six-year prison term subject to a three-year period of parole ineligibility.

On the date scheduled for sentencing, defendant sought to withdraw his guilty plea, arguing that he had been coerced into pleading guilty by an unidentified gang member. The motion was denied, and defendant was sentenced to a six-year prison term with a three-year period of parole ineligibility.

Defendant appealed, arguing:

I. DEFENDANT WAS COMMITTED TO CUSTODY AND DETAINED ON A CONSTITUTIONALLY DEFECTIVE COMPLAINT WARRANT.

II. DEFENDANT SHOULD HAVE BEEN PERMITTED TO WITHDRAW HIS GUILTY PLEA.

III. DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

In Point I, defendant argues that the complaint warrant's failure to express a finding of probable cause requires the suppression of evidence seized at the time of his arrest. We need not determine whether the complaint warrant was deficient. Any defect was cured by the indictment. See R. 3:3-4. In addition, the remedy defendant now seeks has no nexus to the alleged error. There was probable cause to arrest defendant and evidence seized from him at that time was not subject to suppression based on some defect in the complaint warrant that was filed after his arrest. See State v. Brown, 205 N.J. 133, 147-48 (2011).

We also reject defendant's argument, in Point II, that the trial judge erred in denying his application for the withdrawal of his guilty plea. The record reveals that defendant orally moved to withdraw his guilty plea the morning he was to be sentenced. The judge heard from defense counsel and then defendant himself, who asserted that he was attacked and threatened to "take the plea" by "somebody . . ., [p]ossibly the guys from Bloods, the gangs." The judge found that defendant's factual claim was not credible and also observed that defendant had not asserted his innocence. Under those circumstances, the trial judge properly exercised his discretion in denying defendant's application. See State v. Slater, 198 N.J. 145, 155-58 (2009).

Defendant's argument that he received an excessive sentence is also without merit. As a repeat drug offender, defendant was eligible for an extended term, N.J.S.A. 2C:43-6(f), and the sentence imposed on the third-degree offense to which defendant pled guilty fell within the five- to ten-year range permitted by law, N.J.S.A. 2C:43-7a(4).

1In his thorough description and disposition of the issues raised by defendant at that time, the judge wrote as to this particular point:

There was one issue in the processing of your complaints that troubled me. You were arrested on September 22, 2009. You remained in custody in Plainfield police lockup until September 24, 2009. It was not until October 2, 2009[,] that you were brought before [a superior court judge] for your First Appearance and advised that [another judge, on the night defendant was arrested,] had set bail of $150,000. Generally, an individual who remains in custody should be brought before a magistrate for his First Appearance within 72 hours. There is no statute, rule or case that guides the court when there is a violation of this Rule. When this issue was brought to my attention by [the deputy public defender] in a motion to reduce bail, I lowered your bail to $125,000.