STATE OF NEW JERSEY v. DERRICK D. GILLIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK D. GILLIAM,

Defendant-Appellant.

_______________________________

September 21, 2015

Submitted June 15, 2015 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-03-0119.

Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).

Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On March 26, 2010, defendant Derrick D. Gilliam negotiated a plea agreement with the State that effectively resolved all of the charges reflected in Indictment No. 06-03-0119. Defendant pled guilty to count one, second degree possession of heroin in a quantity of more than a half ounce, but less than five ounces, with intent to distribute, N.J.S.A. 2C:35-5a1 and N.J.S.A. 2C:35-5b2; count three, second degree possession of cocaine in a quantity of more than a half ounce, but less than five ounces, with intent to distribute, N.J.S.A. 2C:35-5a1 and N.J.S.A. 2C:35-5b2; count five, fourth degree possession with intent to distribute narcotics paraphernalia; and count six, third degree distribution of heroin, N.J.S.A. 2C:35-5b(3).

Pursuant to N.J.S.A. 2C:35-12, the State agreed to recommend the court sentence defendant to a term of twelve years, with a five-year period of parole ineligibility, and dismiss the remaining counts in the indictment. The State's sentence recommendation was based on the Brimage1 guidelines promulgated by the Attorney General. Defendant was on bail at the time he pled guilty. The State did not object to defendant remaining on bail after he had pled guilty. Despite this accommodation, defendant failed to appear at the sentencing hearing scheduled on August 19, 2010, resulting in the trial court issuing a bench warrant for his arrest.

Defendant remained a fugitive until March 2013. At that time, the court rescinded the warrant and agreed to readmit defendant to bail provided he post $250,000. The court eventually sentenced defendant consistent with the plea agreement to a term of twelve years, with a five-year period of parole ineligibility. The judge found aggravating factors N.J.S.A. 2C:44-1(3), (6), and (9), and no mitigating factors. Although the trial judge recommended defendant for admission into the Intensive Supervision Program, he noted defendant was first required to serve the five-year period of parole ineligibility.

One of defendant's issues on appeal concerns the trial court's denial of his motion to suppress and to reveal the identity of the State's confidential informant (CI). On July 26, 2006, before defendant negotiated the plea agreement with the State, the court conducted an N.J.R.E. 104 hearing to adjudicate defendant's motions. Defendant was the only witness who testified at this hearing. The State relied on the reports and affidavits prepared by the law enforcement agents who investigated this case and executed the search warrants.

On August 31, 2006, the trial judge denied defendant's motions. In a memorandum of opinion, the judge explained the basis for upholding the validity of the searches conducted by the investigating agents. The judge specifically found "defendant's vehicle was lawfully seized" and thereafter properly searched pursuant to two valid search warrants.

Defendant now appeals raising the following arguments.

POINT I

BECAUSE THE CONFIDENTIAL INFORMANT'S TIP LACKED THE REQUISITE BASIS OF KNOWLEDGE TO PROVIDE PROBABLE CAUSE TO SEARCH MR. GILLIAM'S VEHICLE, THE EVIDENCE MUST BE SUPPRESSED.

POINT II

THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S STATUS AS A REPEAT DRUG OFFENDER RENDERED HIM ineligible FOR SPECIAL PROBATION PURSUANT TO N.J.S.A. 2C:35-14B(3).

POINT III

DEFENDANT'S TWELVE-YEAR SENTENCE, WITH A FIVE-YEAR PAROLE BAR, IS MANIFESTLY EXCESSIVE.

In Point II, defendant argues the trial court erred in finding his status as a repeat drug offender rendered him ineligible for special probation pursuant to N.J.S.A. 2C:35-14b(3) and consequently ineligible to participate in Drug Court. The State agrees with defendant on this point. After reaching the relevant law and consulting with the Attorney General, the State noted it agreed "with defendant that his status as a repeat offender, N.J.S.A. 2C:43-6f, does not render him automatically ineligible for special probation pursuant to N.J.S.A. 2C:35-14b(3). Therefore, the matter should be remanded to allow the trial court to consider defendant's application for admission to Drug Court."

In reaching this conclusion, the State emphasized that N.J.S.A. 2C:35-14b(3) provides, in relevant part

A person shall not be eligible for special probation pursuant to this section if the person is convicted of or adjudicated delinquent for

. . . .

(3) a crime, other than that defined [N.J.S.A. 2C:35-7], for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or any other law;

The State agrees that a plain reading of this statute does not render defendant automatically ineligible for special probation based on his status as a repeat offender under N.J.S.A. 2C:43-6f. Citing State v. Shelley, 205 N.J. 320, 324 (2011), the State argues that any ambiguity the trial court discerns with respect to defendant's eligibility to participate in Drug Court should have been resolved by the court in defendant's favor. We agree. We also take this opportunity to praise the State's candor and willingness to advocate on defendant's behalf when the interests of justice and intellectual integrity demand it. In State v. Ramseur, 106 N.J. 123, 320 (1987), our Supreme Court noted that "the primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." The State's position in this appeal is in keeping with this high standard of professionalism and ethical conduct.

We remand this matter for the trial court to reconsider defendant's application for admission into Drug Court. We reject defendant's remaining arguments substantially for the reasons expressed by the trial court. R. 2:11-3(e)(2).

Affirmed in part and remanded in part for the reasons expressed herein. We do not retain jurisdiction.

1 State v. Brimage, 153 N.J. 1, 22-25 (1998).