STATE OF NEW JERSEY v. AL H. ALY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5249-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AL H. ALY, a/k/a AL HUSSEIN

ALY, a/k/a ALHUSSEIN ALY,

Defendant-Appellant.

________________________________________________________________

April 12, 2012

Submitted February 29, 2012 - Decided

Before Judges J. N. Harris and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-01-0041.

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After the judge denied his motion to suppress evidence, defendant Al H. Aly pled guilty to Middlesex County Indictment No. 09-01-00041 charging him and a co-defendant with third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25. In exchange for his guilty plea and forfeiture of the $56,000 seized, the State agreed to recommend a non-custodial probationary sentence. Defendant filed a motion to withdraw his plea twelve days later. After the judge denied that motion, in accordance with the plea agreement, defendant was sentenced to five years probation and the funds were forfeited. Defendant appeals from the judgment of conviction entered by the judge on March 23, 2010. We affirm.

We previously considered the merits of a joint motion to suppress in an appeal pursued by defendant's brother, who was charged in a separate indictment. State v. Mohamed A. Aly, A-5468-09, (App. Div. August 2, 2011). In our prior opinion, we summarized the factual background of this search, which we now incorporate by reference. We further summarize those facts only as necessary for our determination here.

Two undercover New Jersey State Police detectives noticed defendant's car driving up and down in a New Jersey Turnpike rest area on October 24, 2008. Co-defendant Leonard Trujillo entered defendant's car, which was then driven to the rear of a tractor-trailer with Florida license plates. Trujillo exited the car with a bag. Defendant left and Trujillo went to the driver's side of the tractor-trailer.

The detectives stopped Trujillo. Trujillo voluntarily opened the bag for the detectives, who found $56,000 inside. Trujillo admitted he had been paid to transport similar bags to Miami previously.

After Trujillo's arrest, the detectives went to defendant's home. Defendant was arrested when he opened the door. Defendant's mother consented to a search of the home, as did defendant's brother, Mohamed A. Aly. Cocaine and currency were found in Mohamed A. Aly's bedroom, resulting in a charge of possession of a controlled dangerous substance (CDS). Although charged in separate indictments, the brothers' motion to suppress was heard and denied by the judge on January 6, 2010.

On January 27, 2010, defendant entered a guilty plea, admitting that he gave Trujillo the bag containing $56,000, which had been obtained through an illegal cell phone business and illegal gambling operations. He indicated that his counsel had answered all his questions and that he was satisfied with her representation. He also told the judge that he understood the consequences of his guilty plea. The judge specifically asked him:

Now, because your plea form reflects you're not a citizen of the United States do you understand it is possible that when a noncitizen is convicted of an offense it is possible that the immigration authorities may seek deportation. Do you understand that?

After defendant answered "Yes[,]" the judge went on to state,

This Court has nothing to do with that. It's not part of the plea agreement. It's just my job to confirm that you have talked to [defense counsel] about this, that you're not a citizen and you do understand you may have to go through immigration proceedings but I have nothing to do with that. If I accept this plea . . . it will be up to the immigration authorities whether they want to take any action against you, do you understand that?

Defendant again answered in the affirmative.

On appeal, defendant raises the following issues,

POINT I: BECAUSE THE ALLEGED CONSENT-TO-SEARCH WAS OBTAINED AFTER THE POLICE HAD ENTERED THE HOME EN MASSE, INITIATED THEIR SEARCH OF THE PREMISES AND WAS THE PRODUCT OF COERCION IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS, DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED SHOULD HAVE BEEN GRANTED.

POINT II: BECAUSE THE PROTECTIVE POLICE SWEEP OF THE ALY RESIDENCE THAT WAS CONDUCTED AFTER THE DEFENDANT'S ARREST EXCEEDED CONSTITUTIONALLY PERMITTED PARAMETERS IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS, DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED SHOULD HAVE BEEN GRANTED. (Partially Raised Below).

POINT III: BECAUSE THERE WAS NO EVIDENCE OF REASONABLE SUSPICION OF CRIMINAL ACTIVITY IN THE SERVICE AREA, THE SEIZURE OF TRUJILLO AND SEARCH OF THE BAG HE WAS CARRYING VIOLATED THE NEW JERSEY AND UNITED STATES CONSTITUTIONS AND SHOULD HAVE BEEN SUPPRESSED.

POINT IV: THE FAILURE OF THE POLICE TO ADVISE TRUJILLO ABOUT HIS MIRANDA RIGHTS UNTIL AFTER HE WAS QUESTIONED AND THE BAG WAS SEARCHED VIOLATED THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

POINT V: DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA THAT WAS FILED BEFORE THE SENTENCING DATE SHOULD HAVE BEEN GRANTED BECAUSE HE DEMONSTRATED A COLORABLE CLAIM OF INNOCENCE ALONG WITH GOOD FAITH REASONS AND THERE WAS NO PREJUDICE TO THE STATE.

POINT VI: REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS IN THE SUPPRESSION MOTION AND MOTION TO WITHDRAW THE GUILTY PLEA.

We previously decided the issues surrounding the denial of defendant's motion to suppress raised in defendant's Points I through III, finding that the contentions, which were fully addressed by the motion judge, were without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2); State v. Mohamed A. Aly, A-5468-09, (App. Div. August 2, 2011). In Point IV, which defendant raises for the first time on appeal, he asserts that the admission of Trujillo's responses to the detective's questioning violated Trujillo's Miranda1 rights, and that violation should lead to suppression of the $56,000 Trujillo was carrying. We agree with the State that defendant lacks standing to raise this claim. See State v. Baum, 199 N.J. 407, 412 (2009). We therefore reject the reasons underlying defendant's request to overturn the motion judge's decision to deny his motion to suppress.

In Point V, defendant maintains that the judge should have allowed him to withdraw his guilty plea prior to sentencing. At the time of the motion, he expressed that he decided to withdraw his plea shortly after pleading guilty because he was concerned about his immigration status. He indicated on the record that his brother spoke with an immigration lawyer who indicated that "most likely [the two would] get deported."

In 2009, the Court explained the governing standard in evaluating a motion to withdraw a guilty plea in State v. Slater, 198 N.J. 145 (2009). The Slater court set forth a four factor test: "(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 157-58. "[T]he burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits." Id. at 156 (internal quotations omitted) (citations omitted).

Courts exercise their discretion in determining whether or not to allow the withdrawal of a guilty plea. Id. at 156 (citations omitted). In evaluating a motion to withdraw, courts should consider first whether the defendant has asserted his innocence. Id. at 158. However, "a protestation of innocence must be more than a mere assertion of nonguilt." State v. Phillips, 133 N.J. Super. 515, 519 (App. Div. 1975). Instead, "[d]efendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Slater, supra, 198 N.J. at 158 (emphasis added) (citations omitted).

Defendant states on appeal that because he did not admit the money was connected to the CDS found in his brother's room, he expressed a "claim of innocence." The motion judge rejected this argument, as do we, based on defendant's admission that the $56,000 was connected to an illegal business operation.

The judge further noted that defendant had been informed of the immigration consequences of the guilty plea, and the fact that he feared deportation was not sufficient reason to allow a withdrawal of the plea. The judge indicated that it would be unfair to the State to force it to trial after a lengthy delay from the time of the offense and after disposition of the other related matters. The judge did not abuse his discretion in rejecting defendant's motion to withdraw his plea.

Lastly, we address defendant's claim in Point VI of cumulative error. State v. Orecchio, 16 N.J. 125, 129 (1954). Because we find the judge's conclusions are free of error, this argument is without merit.

A

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).