STATE OF NEW JERSEY v. ROBERT L. AYRES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4240-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT L. AYRES,

Defendant-Appellant.

_______________________________________

January 31, 2013

 

Submitted September 11, 2012 Decided

 

Before Judges Yannotti and Hoffman.

 

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 05-04-1281 and 04-08-3144.

 

The Law Offices of Robin Kay Lord, LLC, attorneys for appellant (Robin Kay Lord and Richard W. Berg, of counsel and on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant pled guilty to various offenses, as charged under two Camden County indictments. The trial court denied defendant's motion to withdraw his pleas and sentenced defendant to an aggregate term of nineteen years of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the judgments of conviction entered on November 20, 2009. For the reasons that follow, we affirm.

I.

We summarize the most relevant facts, based on the record presented to the trial court.

A. Order For Investigative Detention.

On July 23, 2001, the Family Part entered an order for investigative detention for the purpose of taking buccal swabs from defendant for deoxyribonucleic acid (DNA) evaluation. The order was entered with defendant's consent and the consent of his attorney. It appears that the buccal swabs were taken at the Voorhees Police Department (VPD) on September 6, 2001.

At the time, the Voorhees police were conducting two investigations. The first investigation involved the aggravated assault of L.F. and burglary, during which L.F. had torn off a piece of the assailant's shirt. The other investigation arose from a report by C.P., who said that a male engaged in a lewd act on her patio and left physical evidence there.

Upon analysis of the evidence, it was determined that a DNA sample could not be extracted from the piece of the clothing worn during the assault on L.F., but defendant was the donor of the DNA found on the evidence found on C.P.'s patio. Upon completion of the analysis, the evidence, including defendant's DNA sample, was returned to the VPD. Defendant was later charged, pled guilty and sentenced in both matters.

B. Indictment No. 04-08-3144.

Defendant was charged with second-degree burglary, N.J.S.A. 2C:18-2 (count one); first-degree sexual assault, N.J.S.A. 2C:14-2(a)(3) or (4) (counts two and three); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), N.J.S.A. 2C:14-2(a)(3) and/or (4) (count four); first-degree sexual assault, N.J.S.A. 2C:14-2(a)(3), N.J.S.A. 2C:14-2(a)(4) (count five); first-degree sexual assault, N.J.S.A. 2C:14-2(a)(3) or (4) (count six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count eight); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) or (b) (count nine).

The charges arose from an incident that occurred in Voorhees on or about November 29, 2003. D.C. reported that a male intruder had entered her apartment at around 4:00 a.m. According to D.C., the intruder sexually assaulted her and left physical evidence on the floor before leaving. D.C. called the Voorhees police and they investigated the matter. DNA was extracted from evidence obtained at the scene and sent to the State Police Laboratory for evaluation.

Defendant was identified as a partial contributor to the mixed DNA profiles found in the specimens. In making the identification, the State Police Laboratory used a DNA profile made with DNA samples which defendant had provided on September 6, 2001, and which the State Police had maintained in its forensic index.

C. Indictment No. 05-04-1281.

Defendant was charged with second-degree burglary, N.J.S.A. 2C:18-2(b)(2) (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count six).

These charges arose out of an incident that occurred in Lindenwold, New Jersey, on or about November 30, 2003. C.L. reported that at approximately 10:45 p.m., she was getting ready for bed when she heard footsteps in her apartment. C.L. was confronted by a male intruder, who was dressed in black and had his face covered. The intruder told C.L. he had a gun and threatened to kill her if she screamed. C.L. thought the intruder was holding an object which might have been a knife.

The intruder sexually assaulted C.L. anally. He got up, demanded money, and told C.L. he would kill her if she went to the police. The intruder took the money from C.L.'s purse and left. C.L. called the Lindenwold police, which investigated the matter. They collected evidence, which was submitted to the State Police Laboratory for evaluation.

The Laboratory determined that DNA found on the evidence matched the DNA sample defendant provided on September 6, 2001, as well as other DNA evidence analyzed in connection with the previously-mentioned incident involving D.C. In addition, defendant's DNA profile from the investigation into the lewd act reported by C.L. had remained in the State Police's forensic index.

D. First Motion to Suppress.

Defendant filed a motion to suppress evidence related to the charges in Indictments No. 04-08-3144 and No. 05-04-1281. Defendant argued that the DNA sample that he provided in September 2001 had been retained illegally in the State's DNA database. He argued that, at the time his DNA sample was taken, it could not be retained under the provisions of the DNA Database and Databank Act (DNA Act), N.J.S.A. 53:1-20.17 to -20.27, which were then in effect. Defendant maintained that, without the DNA evidence from September 2001 samples, there was no evidence linking him to the offenses charged in the two indictments. The State opposed the motion.

Judge Louise D. Donaldson considered the motion on November 18, 2005, and placed her decision on the record that day. The judge concluded that defendant's DNA sample had been obtained lawfully in 2001, and there was nothing in the law which required that the sample be destroyed after it was used for its initial purpose. The judge entered an order dated November 18, 2005, denying defendant's motion. In December 2005, defendant filed a motion for leave to appeal. We entered an order dated January 9, 2006, denying the motion.

E. State's Motion to Compel DNA Sampling.

At some point after the judge ruled on the first suppression motion, the State filed a motion seeking an order compelling defendant to provide another DNA sample. In support of that motion, the State submitted an affidavit from Deputy Attorney General Steven B. Farman (Farman), in which he stated that since September 22, 2003, the DNA Act required all persons convicted of a crime to provide a DNA sample. This included persons who were convicted prior to September 22, 2003, but who were serving a sentence or on some form of supervision on that date.

Farman said that defendant was required to provide the DNA sample as a result of convictions of offenses charged in three indictments and one accusation, for which he had been sentenced in 2003. According to Farman, defendant remained on probation as a result of these convictions, and he had not provided a DNA sample as required by the law.

Farman stated that he was aware that defendant had previously consented to, and did in fact, provide a DNA sample to law enforcement authorities in 2001. Farman said he also was

aware that the DNA profile produced from this sample may have been used, at least in part, as the basis for the return of additional indictments against the defendant which are now pending before this [c]ourt. However, neither this sample nor the profile generated from the analysis can legally be maintained in the Federal or State "convicted offender" database or databank since it was not taken pursuant to the [DNA] Act. Consequently, absent a DNA sample from the defendant as a convicted offender, our State Police lab is prohibited from "uploading" the defendant's DNA profile into the National and State convicted offender database, and hence, cannot share this profile with other law enforcement agencies, if requested, because the profile was developed for a specific investigative purpose rather than pursuant to the Act[.]

It is unclear from the record before us how this motion was resolved.

F. Second Motion to Suppress.

In August of 2006, defendant filed another motion to suppress. He argued that, based on certain statements in Farman's certification, the State had conceded it had unlawfully "uploaded" his DNA profile into the CODIS database, which is the national DNA identification index system maintained by the Federal Bureau of Investigation. Defendant also argued that the State had lost certain "electronic evidence" related to the DNA evidence obtained from the 2001 incident reported by C.P., as well as the DNA sample he later provided, which prejudiced his defense. Defendant therefore maintained that the evidence linking him to the charges in the two indictments had to be suppressed.

In response to the motion, the State submitted a certification from Joseph R. Petersack (Petersack), M.S., Forensic Scientist III, and Acting Director of the State Police DNA Laboratory. Petersack explained that the CODIS database consists of two parts. One is a forensic index "which contains the profiles generated from unknown crime scene evidence" and the other is "the Convicted Offender Index, which contains the DNA profiles of qualified convicted offenders."

Petersack stated that defendant's 2001 DNA sample had not been placed in the CODIS convicted offender database. Petersack said, however, that defendant's DNA profile had been uploaded to the State's forensic index from which a "case-to-case" had been generated. Petersack stated that defendant's DNA profile was not uploaded to the convicted offender index until February 21, 2006.

The State also submitted another certification from Farman, who said the statement in his earlier certification should not be interpreted to mean that the DNA profile from defendant's consensual buccal swab in 2001 had been uploaded to the convicted offender file in CODIS. He stated:

What was run through the indexes was not defendant's DNA profile from his buccal swab, but rather, the DNA profiles from the forensic unknowns, to wit, the profiles developed from the submission of crime scene evidence by the respective law enforcement agencies. In other words, what resulted was a "case-to-case" match, not "convicted offender-to case" match.

 

The State stated that the State Police Laboratory's letter of September 23, 2004, from Assistant Chief Scientist Linda B. Jankowski to the Lindenwold Police Department, indicated that during a search of the combined CODIS data base, a match had occurred between case #4142, which was the sample obtained after C.P. reported seeing a man performing a lewd act on her patio, and case #4492, which was the sample obtained in the investigation that led to the charges in Indictment No. 05-04-1281.

Judge Donaldson considered the motion on March 9, 2007. At that proceeding, the State presented testimony from Dr. Rick Staub (Staub), the laboratory director for Orchid Cellmark, which performs DNA evaluations for the State Police Laboratory. Staub said that, while the electronic data related to defendant's DNA evaluations had been lost, a hard copy of the lost electronic data was available.

The judge determined that defendant had not been prejudiced by the loss of the electronic data because the relevant information was still available in hard copy. The judge additionally determined that the profile from the DNA sample obtained from defendant in 2001 had been lawfully maintained, and the State was not prohibited from using that evidence in a later investigation.

The judge noted that defendant had also provided DNA samples as a result of his subsequent convictions. The judge stated that it was inevitable that a testing of those new samples would have resulted in the same match and defendant's identification for purposes of the charges in the indictments. The judge accordingly entered an order denying defendant's motion to suppress.

G. Defendant's Guilty Pleas.

On January 5, 2009, defendant pled guilty to count one (as amended to charge third-degree burglary), and count nine (third-degree terroristic threats), under Indictment No. 04-08-3144. The State agreed to dismiss the remaining charges and recommend a sentence of five years of incarceration, with two years of parole ineligibility.

In addition, on July 22, 2009, defendant pled guilty to counts three (first-degree aggravated sexual assault), and count five (third-degree possession of a weapon for unlawful purpose), under Indictment No. 05-04-1281. The State agreed to dismiss the other charges and recommend a sentence of fourteen years, to run consecutively to the sentence imposed on Indictment No. 04-08-3144. Defendant reserved the right to argue for a concurrent sentence. In the plea agreement, defendant waived the right to appeal.

H. Motion to Withdraw Plea/Sentencing.

Defendant thereafter filed a pro se motion to withdraw his guilty plea on charges in Indictment No. 05-04-1281. Defendant claimed his attorney erroneously informed him he would be able to appeal all pre-trial rulings of the court. He additionally claimed he had been denied his right to a speedy trial, and he had not been provided with certain exculpatory evidence. Defendant's attorney also filed a motion to withdraw the plea. In the supporting brief, defendant's attorney argued that defendant mistakenly believed he would receive "substantial jail time credits as a result of [the] time spent incarcerated pending the resolution of the [ ] matter."

On November 20, 2009, Judge Samuel D. Natal heard argument on the motion and placed his decision on the record. Judge Natal considered the factors under State v. Slater, 198 N.J. 145 (2009), and concluded that defendant should not be permitted to withdraw his plea.

Thereafter, Judge Natal sentenced defendant in accordance with the plea agreements. On Indictment No. 04-08-3144, the judge sentenced defendant to five-year terms of imprisonment, each with a two-year period of parole ineligibility, on the counts to which defendant pled guilty (third-degree burglary and third-degree terroristic threats). The judge ordered the sentences to be served concurrently.

On Indictment No. 05-04-1281, the judge merged count five (possession of a weapon for an unlawful purpose) with count three (first-degree aggravated sexual assault), and sentenced defendant to fourteen years of incarceration, subject to NERA. The judge ordered the sentence to be served consecutively to the sentence imposed on Indictment No. 04-08-3144.

In addition, the judge imposed a five-year period of parole supervision upon defendant's release, community supervision for life, and required defendant to comply with Megan's Law, N.J.S.A. 2C:7-1 to -23. The judge also imposed appropriate penalties and assessments, and ordered defendant to pay the victim restitution in the amount of $901.77.

Defendant filed a notice of appeal on May 13, 2010. We note that after defendant and the State filed their respective briefs, defendant filed a motion seeking leave to have a new attorney file a substitute brief. We entered an order dated September 12, 2012, granting the motion.

In the substitute brief, defendant raises the following arguments for our consideration:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEAS BECAUSE DEFENDANT WAS MISINFORMED BY THE COURT AND DEFENSE COUNSEL AS TO HIS RIGHT TO APPEAL THE DENIAL OF HIS PRETRIAL MOTIONS.

 

POINT [TWO]

THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S PRETRIAL SUPPRESSION MOTION.

 

A. THE TAKING, RETENTION AND USE OF THE DNA SAMPLE WAS UNLAWFUL AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS.

 

B. THE TAKING OF THE BUCCAL SWAB CANNOT BE JUSTIFIED UNDER EITHER [RULE] 3:5A OR N.J.S.A. 2A:84A-19(A).

 

C. THE CONSENT EXCEPTION IS INAPPLICABLE.

 

D. THE STORAGE AND SUBSEQUENT USE OF THE DNA

EVIDENCE CONSTITUTED THE FRUITS OF UNLAWFUL POLICE CONDUCT.

 

E. THE INEVITABLE DISCOVERY EXCEPTION IS INAPPLICABLE

 

1. THE HEARING ON NOVEMBER 18, 2005.

 

2. THE HEARING ON MARCH 9, 2007

 

3. MISAPPLICATION OF THE INEVITABLE DISCOVERY EXCEPTION.

 

II.

We turn first to defendant's contention that the trial court erred by denying his motion to withdraw his plea. Defendant contends that his attorney and the trial court misinformed him as to his right to appeal the denial of his pre-trial motions.

Where, as here, a defendant files a motion to withdraw a guilty plea, the court must determine whether the interests of justice would be served by allowing the defendant to withdraw the plea. R. 3:9-3(e). The matter is committed to the sound discretion of the court. Slater, supra, 198 N.J. at 156 (citing State v. Simon, 161 N.J. 416, 444 (1999); State v. Herman, 47 N.J. 73, 76 (1966); State v. Deutsch, 34 N.J. 190, 197 (1961)). The defendant has the burden of presenting "'some plausible basis for his request, and his good faith in asserting a defense on the merits.'" State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div. 1974)).

In resolving the motion, the court must consider the following factors: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal of the plea; (3) whether the plea was entered as part of a plea bargain; and (4) whether withdrawal of the plea would result in unfair prejudice to the State or unfair advantage to the accused. Slater, supra, 198 N.J. at 158-61.

Here, defendant moved to withdraw his guilty plea on Indictment No. 05-04-1281. Judge Natal considered the Slater factors and determined that defendant had not asserted a colorable claim of innocence to the charges in that indictment. The judge noted that defendant had merely provided a bare assertion of innocence, and had not pointed to any evidence that would establish he did not commit the aggravated sexual assault upon C.L. The judge noted that, when defendant entered his plea to the offense, he admitted that he threatened C.L. with harm and penetrated her anally.

Judge Natal also found that the reasons defendant had asserted for withdrawal of the plea were "very, very weak." The judge noted that defendant claimed he had been misinformed about the waiver of his right to appeal the court's pre-trial decisions. The judge observed that, while the plea agreement stated that defendant waived his right to appeal, such a provision "is rarely enforced." The judge said defendant was told that, if he took an appeal, the State would have the right to withdraw from the plea agreement and proceed to trial. The judge also rejected defendant's claim that he was misinformed about the jail credits he would receive.

In addition, Judge Natal noted that defendant's pleas had been entered pursuant to an agreement with the State. The judge pointed out that a defendant has a heavy burden when seeking to withdraw a plea entered as part of a plea agreement. The judge stated, however, that he was not weighing this factor heavily because most criminal cases are resolved by plea agreements.

The judge also found that the State would be prejudiced if it were required to try the matter. The judge noted that the State had devoted substantial time and money preparing for trial, and defendant chose to plead guilty on the day of jury selection. The State entered the plea agreement to spare the victim from testifying. The judge stated, "[t]o now require the victim to relive this experience yet again would inflict more emotional stress and discomfort to this innocent victim."

The judge concluded that, upon balancing the Slater factors, defendant has not met his burden of presenting a plausible basis for his application and his good faith in asserting a defense to the charges. The judge accordingly denied the motion. We are convinced that the record fully supports the court's findings.

Defendant argues, however, that he was misinformed about his waiver of the right to appeal the court's pre-trial rulings, including those denying his motions to suppress. We do not agree.

At the January 5, 2009 hearing, when defendant pled guilty to charges in Indictment No. 04-08-3144, the judge told defendant that, by entering his plea, he was agreeing he would not file an appeal. Defendant replied, "[y]es." The judge and defendant then engaged in the following colloquy:

[THE JUDGE:] Therefore, do you understand that should you file an appeal at that time the Prosecutor would reserve his right to move to set aside the [entire] proceeding today, having [a] not guilty plea reentered on your behalf, have any dismissed charges reinstated, have all matters go to trial, and if you are convicted you could receive any lawful sentence; do you understand that, sir?

 

[DEFENDANT:] Yes.

 

Thus, defendant was fully informed of the consequences of his agreement waiving any right to appeal.

Even if defendant had not been so informed, it is clear that he suffered no prejudice. Defendant has appealed from his judgment of conviction, and challenges the denial of his pre-trial suppression motions. The State has not sought to withdraw from the plea agreement, and we will entertain the appeal. Thus, there is no merit whatsoever in defendant's argument.

Accordingly, we affirm the denial of defendant's motion to withdraw his plea.

III.

We turn to defendant's appeal from the orders denying his motions to suppress the DNA profile developed from the buccal samples that defendant provided pursuant to the consent order entered on July 23, 2001. Defendant contends that the retention and use of these DNA samples was not permitted by the DNA Act and violated his constitutional rights. We cannot agree.

The State concedes that, at the time the order was entered requiring defendant to provide the buccal samples for DNA analysis, the DNA Act did not require defendant to submit the samples. However, as Judge Donaldson correctly found, defendant consented to the entry of the order requiring the samples, and the order indicates that defendant was represented by counsel at the time.

Moreover, the State presented certified statements that the DNA profile generated from the samples provided in 2001 was never uploaded to the CODIS convicted-offender file, and defendant presented no evidence disputing the State's assertion. Judge Donaldson correctly determined that there was nothing in the DNA Act which precluded the State from retaining defendant's DNA profiles for purposes of later use in a criminal investigation.

Defendant argues that the retention and use of the DNA profile from the 2001 samples violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution. However, because the State had lawfully obtained the samples in 2001, the subsequent use of that evidence for investigative purposes did not violate defendant's constitutional rights.

A blood test or cheek swab to obtain a DNA sample is a search for purposes of the constitutional protection from unreasonable searches and seizures. State v. O'Hagen, 189 N.J. 140, 149 (2007) (citing Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13, 103 L. Ed. 2d 639, 659-60 (1989)). Nevertheless, "once a search and seizure is completed, the subsequent use of the evidence does not constitute an independent search because there is no additional invasion of the owner's privacy interest." A.A. ex rel. B.A. v. Attorney Gen. of N.J., 189 N.J. 128, 139 (2007). Since the State lawfully obtained defendant's DNA samples in 2001, the subsequent use of the evidence seized was not an unconstitutional search.

Defendant additionally argues that the State failed to establish that he validly consented to provide the DNA samples in 2001. Defendant contends that Judge Donaldson erroneously relied on the court's July 23, 2001 Order For Investigative Detention as a basis for finding that he consented to provide the samples. Again, we disagree.

The order entered in 2001 requiring defendant to provide the DNA samples indicated that defendant had consented to its entry, and defendant's attorney signed the order. We are satisfied that it is too late in the day for defendent to challenge that order, and Judge Donaldson did not err by finding that the order conclusively established defendant's consent to provide the DNA samples.

We are additionally satisfied that Judge Donaldson correctly determined that suppression of the DNA profiles generated from the samples defendant provided in 2001 was not warranted because it was inevitable that the State would obtain samples of defendant's DNA, which would have identified defendant as the perpetrator of the charged offenses.

The inevitable discovery doctrine applies when the State unlawfully obtains evidence and shows that, "had the illegality not occurred, it would have pursued established investigatory procedures that would have inevitably resulted in the discovery of the controverted evidence, wholly apart from its unlawful acquisition." State v. Sugar, 100 N.J. 214, 240 (1985).

Here, the State lawfully obtained defendant's DNA samples in 2001. Assuming it did so unlawfully, the State nevertheless established that it would have inevitably obtained defendant's DNA samples thereafter. The judge noted that defendant provided another buccal swab sample in December 2004, as a result of his convictions on indictable offenses in 2003. Thus, the match made using the 2001 sample would have inevitably been made from the use of the 2004 sample, which was obtained from defendant pursuant to the DNA Act.

We have considered the other arguments raised by defendant and conclude that they are of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.