STATE OF NEW JERSEY v. JASON C. HARLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4735-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON C. HARLEY,

Defendant-Appellant.

 

Submitted: October 6, 2005 - Decided January 30, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Number 01-03-340.

Yvonne Smith Segars, Public Defender, attorney for appellant (Francis T. Gleason, Jr., Designated Counsel, of counsel and on the brief).

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jason C. Harley appeals from the failure of the trial court to either adjourn his trial on drug and resisting arrest charges, or bar testimony from a witness discovered by the State after the jury was selected and sworn shortly prior to the trial was to begin. Defendant also appeals from denial of his application to withdraw his guilty plea entered on those charges. The following factual and procedural history is relevant to our consideration of the arguments advanced by the parties.

Defendant was charged in Ocean County Indictment Number 01-03-340 with third-degree possession of Ketamine, a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of Ketamine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(13) (count two); and third-degree resisting arrest, N.J.S.A. 2C:29-2b (count three).

The charges against defendant arose from an incident that occurred during the early morning hours of June 25, 2000, outside a bar and nightclub known as "Temptations" in Seaside Heights. At approximately 1:30 a.m., Patrolmen Minialga and Rentas of the Seaside Heights Police Department observed defendant sitting on a bench outside Temptations. The officers saw a large number of individuals walk up to defendant and shake his hand. Each time, defendant would reach into his right front pocket, take his hand out, and then re-shake their hands. During their surveillance of defendant, Patrolman Minialga observed defendant shove a plastic bag containing several other plastic bags, which appeared to contain a controlled dangerous substance, into his pocket.

Patrolman Minialga approached defendant and introduced himself as a police officer, informed defendant he believed he had witnessed defendant making numerous drug transactions, and placed defendant under arrest. Defendant appeared to be under the influence of a controlled dangerous substance because he was sweating heavily and grinding his teeth. Defendant resisted the attempts of Patrolman Minialga to handcuff him by pulling away and physically fighting with the patrolman. After he was subdued through the assistance of other officers, a pat-down search of defendant revealed ten bags of a white powdery substance which defendant volunteered was Ketamine, a controlled dangerous substance. The search also disclosed a vial of Ketaset, a brand name for Ketamine; a tablet of Ecstasy, another controlled dangerous substance; twenty-five unknown white pills; and $60 in cash.

The jury trial on the charges contained in the indictment commenced on December 10, 2001, with jury selection completed that day. During preliminary discussions on the record between counsel and the trial judge, it was noted that defendant had a prior conviction, on February 25, 1999, for possession of a controlled dangerous substance with intent to distribute in a school zone.

On the morning of December 11, 2001, defendant and the court were informed that the State had discovered another witness, Jason P. Gardner, who purportedly had relevant information concerning the charges against defendant. Gardner had been listed on the police report provided in discovery as a "subject involved with actor during the sales of drugs[,]" but had not been placed on the State's witness list. The prosecutor explained that on December 10, 2001, Gardner had left a message on her voice mail concerning the case. Before the prosecutor could have an agent return Gardner's call, Gardner called again at approximately 8:00 a.m. on December 11 and spoke with Agent Thomas Benson of the Ocean County Prosecutor's Office. At approximately 8:30 a.m. on December 11, Agent Benson met with Gardner and prepared a written report that stated, in pertinent part:

Mr. Gardner advised this writer, that [defendant] told him that he was involved in a burglary of the Twin Rivers Animal Hospital, Hightstown, New Jersey a few weeks before [defendant] was arrested in Seaside Heights. Upon receipt of this information the undersigned contacted Hightstown Police Department and the burglary was confirmed and the reports were faxed to this writer. (Attached hereto). Hightstown confirmed that the burglary took place between May 27 and May 28, 2000 and that Ketamine was taken during the burglary. This writer contacted Dr. Petranto, VMD, in order to ascertain whether the Ketamine seized from [defendant] in Seaside Heights was part of the Ketamine taken from his office during the burglary. This writer is awaiting receipt of this information from Dr. Petranto. I also contacted Fort Dodge Animal Hospital, Fort Dodge, Iowa, which supplies Ketamine to Dr. Petranto's office. I was able to supply a lot number from the Ketamine seized from [defendant] by the Seaside Heights Police Department. I am awaiting receipt of information from Fort Dodge Animal Hospital regarding this lot number.

This writer was further advised by Mr. Gardner that at the time of the burglary [defendant] was on furlough from Tully House, a drug rehabilitation facility in Newark. This writer contacted Tully House and is awaiting confirmation of this information.

This writer was advised by Mr. Gardner that [defendant] told him that he stole the Ketamine and that he intended to sell it in Seaside Heights the night of June 25, 2000.

Although Benson's report itself was not yet available, the information contained in Benson's report was conveyed to defense counsel and the court during the morning of December 11. The judge excused the jury until 1:30 p.m.

The State then made an application to add Gardner to the witness list to testify concerning the facts and circumstances as to how defendant came into possession of the Ketamine, as well as the statements allegedly made by defendant to Gardner. After discussion of the State's request, and before ruling on it, the trial judge asked defense counsel and defendant to assume that the court would permit Gardner's name to be added to the State's witness list, but that he would dismiss the jury for the balance of the day to give defense counsel's investigators an opportunity to obtain the statement given to Benson by Gardner and to investigate its contents. Defense counsel inquired as to what plea offer would be available, and the judge told defense counsel to assume that he would consider the first post-indictment offer to be fair based on this change of circumstances. The judge then permitted the parties to enter into plea negotiations for fifteen minutes.

Approximately one hour later, the court was informed that defendant would enter an open plea to the charges in the indictment. The plea agreement entered into between the parties stated that defendant was subject to a mandatory extended term on count two due to his prior conviction, and that the possession charge in count one would be merged into the possession with intent to distribute charge contained in count two.

Defendant testified to his understanding of the plea, and his exposure to a ten-year extended term. In addition, the following examination was conducted of defendant by the court:

Q. And this plea comes about as a result of new evidence that was presented today. And you've had an opportunity to discuss this with [defense counsel]?

A. Yes.

Q. Has anybody threatened you or forced you to plead guilty?

A. No.

Q. You're doing this voluntarily?

A. Yes, sir.

Q. Most particularly in light of the new evidence that came to light today, is that correct?

A. Yes, sir.

Q. And you've had an opportunity to discuss this with [defense counsel], and you're satisfied with the advice and counseling he's given you?

A. Yes, sir.

Q. You understand you have a right to go on to trial. We've already picked a jury, and the State would have the burden of proving your guilt beyond a reasonable doubt?

A. Yes, sir.

Q. And you have a right to confront and cross-examine witnesses that the State has against you, and you're willing to give up those rights?

A. Yes.

Q. You've read all the questions on the plea form and you've reviewed them and signed them?

A. Yes.

Q. And you understand that there is no plea bargain being offered here, and the court has discretion to sentence you to ten years and to serve five?

A. Yes, sir.

After receiving an adequate factual basis for the commission of the subject offenses, the trial judge accepted defendant's guilty pleas.

Prior to sentencing, defendant filed a motion seeking to withdraw his guilty plea. In his supporting certification, defendant contended that Gardner's statement to the police was false; that it was Gardner who had broken into the veterinary hospital and stolen the Ketamine; that it was Gardner who had been in possession of the drugs that were confiscated on the night of June 25, 2000; that he had been placed under an extreme amount of pressure as a result of being advised of Gardener's false statement; that he was not thinking clearly when he entered his plea; and that his attorney should have taken an interlocutory appeal from the court's denial of his request for an adjournment or exclusion of Gardner's testimony. Defendant's application was also supported by the certifications of four other individuals who know defendant and were also present at Temptations during the early morning hours of June 25, 2000. Those certifications essentially stated that they did not see defendant dealing any drugs, and knew Gardner as a person who lied.

On June 21, 2002, the trial judge first considered defendant's motion to withdraw his guilty plea. In denying that application, the judge found that when the identity of Gardner as a witness was presented to the court and counsel, he had informed defendant and counsel that he would have provided defendant an adequate time for a proper investigation of the content of Gardner's statement; that defendant had more than six hours to consider his course of action; and that defendant had chosen to voluntarily enter into a plea agreement. The judge also further explained the circumstances that had led to the entry of defendant's guilty plea:

Now, in the meantime, what's not reflected in the record, is something else happens. And the other thing that happens is [that] . . . Agent Benson for the Prosecutor's Office comes in, provides the prosecutor with some additional information separate and apart from Mr. Gardner's [proffered] testimony. And that information is that the veterinarian hospital in Hightstown that was burglarized and the Ketamine was stolen from, the [agent] represented, through counsel to the court, that the veterinarian does something unique with his drugs when he receives then from wherever he receives them from. When he logs them in, he takes a special color magic marker and he marks every bottle of these pills and these drugs.

And he told the [agent] how he marked them[.] . . . And while we were waiting for the actual serial numbers from the manufacturers to be transpired, that marking was, in fact, on the evidence that Patrolman Minialga took from [defendant] in Seaside Heights on the date of the event, a similar marking. That information was provided to [defendant].

So, not only do we have Jason Gardner, who may have had some motivation to lie to get himself out of a thing and say something bad about [defendant] for whatever reason, but now there seemed to be substantial corroboration to what testimony Mr. Gardner was going to give, that this veterinarian was going to take the stand and say, yup, this came from my medicine cabinet in my veterinarian hospital that was burglarized on such and such a date.

* * * *

That's substantially different, substantially different than the circumstances of [State v. Clark, 347 N.J. Super. 497 (App. Div. 2002)], as the prosecutor points out. Clark chose to go to trial without time to do an investigation, confronted with last-minute surprise witness, et cetera, and they moved forward and a verdict was returned.

In this circumstance, despite the fact that the record, a portion of the record, would indicate that the court only gave [defendant] fifteen minutes to make a decision. The fact of the matter is it was six and a half hours while this additional information was coming in and the coup de gras of the final piece was the corroborative evidence that this veterinarian would be able to identify the pills or the drugs that were taken from the animal hospital or the drugs that were found in [defendant's] pocket as the drugs that were taken from her animal hospital or his animal hospital in Hightstown, New Jersey, a weekend or a couple of weekends before.

* * * *

He pled guilty knowingly, voluntarily in the face of new evidence. [Defense counsel] was not ineffective. To the contrary, [defense counsel] was effective because he got the court to take it out of plea cutoff and indicate that [the court] would consider rolling the sentence back to the pre-indictment offer since information was newly-discovered information.

For the court to vacate this plea on the basis that [defendant] was not properly advised, that he had ineffective counsel, that he has a meritorious defense, on any one of the prongs in the standards of [State v. Smullen, 118 N.J. 408, 418 (1990)] that the court must look at. The court finds, as a fact, that this defendant has not met the burden of the test to vacate the guilty plea, that there is a proper factual foundation for [the plea], that was taken under oath, that the proper inquiry was made by the court in the face of those facts and circumstances[,] and the motion to vacate the plea is denied.

On sentencing, the court granted the State's application for imposition of a mandatory extended term pursuant to N.J.S.A. 2C:43-6f and N.J.S.A. 2C:43-7c. The judge found that the mitigating factors clearly and substantially outweighed the aggravating factors. Despite the fact that imposition of an extended term was mandatory, the court elected to impose the minimum sentence allowable under the statute. See N.J.S.A. 2C:43-7a(4). The judge then sentenced defendant on the conviction on count two to a term of five years' imprisonment with a three-year period of parole ineligibility. Defendant was sentenced to a flat five-year term on counts one and three, to run concurrently with the sentence imposed on count two. Mandatory fines and penalties were also assessed.

Defendant had been subsequently indicted for possession of stolen property, N.J.S.A. 2C:20-7, in conjunction with the ketamine stolen from Twin Rivers Animal Hospital in Hightstown. Defendant then moved for dismissal of the receiving stolen property charge on merger grounds, and reconsideration of the sentence imposed. On October 7, 2002, the trial judge denied defendant's motion for reconsideration of the sentence imposed, but merged and dismissed the receipt of stolen property charge.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE FAILURE OF THE TRIAL COURT TO EITHER GRANT A REASONABLE ADJOURNMENT TO ALLOW THE DEFENDANT AN OPPORTUNITY TO INVESTIGATE NEW EVIDENCE OR BARRING THE USE OF THE EVIDENCE DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT II

THE COURT ABUSED ITS DISCRETION IN FAILING TO GRANT DEFENDANT'S MOTION TO WITHDRAW HIS PLEA OF GUILTY AS A MATTER OF FUNDAMENTAL FAIRNESS WHERE HE PRESENTED A PLAUSIBLE BASIS FOR THE REQUEST AND ASSERTED A DEFENSE ON THE MERITS.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion, R. 2:11-3e(2), and we affirm the decision of the trial court denying defendant's application to withdraw his guilty pleas substantially for the reasons articulated by Judge Citta in his oral opinion delivered on June 21, 2002. We add the following.

The State is required to provide defendant all relevant discovery, including the names and addresses of any persons whom the prosecutor knows to have relevant evidence or information, including a designation as to which of those witnesses may be called as a witness. R. 3:13-3(c)(6). There is no dispute that the State provided defendant with all relevant information in its possession. Rule 3:13-3(g) requires the State to promptly disclose any additional relevant information and witnesses on a continuing basis. The State fulfilled that obligation by informing defense counsel and the court promptly upon the discovery of Gardner's proposed testimony.

Defendant's reliance on State v. Clark, 347 N.J. Super. 497 (App. Div. 2002), and State v. Bellamy, 329 N.J. Super. 371 (App. Div. 2000) to support his contention that prejudice resulted from the late proffer of Gardner as a witness, is misplaced.

In Clark, supra, the State learned of a key eyewitness to portions of an aggravated assault incident during the prosecutor's preparation of police witnesses two days before trial. 347 N.J. Super. at 502. The police reports and other pretrial discovery had made no mention of that eyewitness. Ibid. Because of an intervening holiday, the prosecutor was unable to provide the witness information to defense counsel or the court until the day of trial. Ibid. The application of defense counsel to exclude any testimony by the eyewitness or the use of his statements as excited utterances, was denied. Id. at 503. Ultimately, the State did not call the eyewitness to testify but was able to introduce some of his statements under the excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2). Id. at 503-05.

We reversed the defendant's conviction "due to the actions of the prosecutor and the failure of the trial judge to take proper remedial action to insure a fair trial." Id. at 507. We emphasized that the failure of the police report to identify the eyewitness had deprived the defense of an opportunity to investigate and evaluate his testimony. Ibid. Here, in relevant contrast, Gardner's name was contained on the investigative police report that had been provided to defendant. In Clark, supra, the prosecutor had refused to provide defense counsel with the address and telephone number of the eyewitness, and had improperly led defense counsel to believe that the eyewitness would be called as a witness by issuing a subpoena for him. 347 N.J. Super. at 504-05. Here, the prosecutor promptly provided all available information concerning Gardner to defense counsel. In Clark, the trial judge denied defendant's application to bar testimony from the eyewitness, id. at 503, thereby failing to give defense counsel an opportunity to investigate. Here, in stark contrast, the trial judge did not rule on defense counsel's motion to bar Gardner, stated he would provide defense counsel sufficient time to investigate if the trial continued, provided defendant an opportunity to resurrect plea negotiations notwithstanding the plea cutoff, and defendant entered a plea of guilty.

The procedural circumstances in Bellamy, supra, 329 N.J. Super. at 374-75, are equally distinguishable, and involved the failure of the trial judge to grant defendant a short adjournment to investigate in light of a co-defendant's proffered version of facts revealed for the first time immediately before trial after the co-defendant entered a guilty plea. The request for a short adjournment was denied, and the co-defendant was permitted to testify. Id. at 375.

We also note that the evidence against defendant, even without the testimony of Gardner, was significant. He was directly observed by the police officers engaging in drug transactions and, when searched, was in possession of the controlled dangerous substances that formed the basis of the charges against him. Moreover, Gardner's name had been listed in the police report as a person involved with defendant during the sale of the controlled dangerous substance on June 25, 2000; therefore, defendant could not have been surprised by the late reference to him as a possible witness. Certainly, at the least, defense counsel and defendant had an opportunity to discuss the possibility that Gardner might be a witness in the case.

The record fully supports the conclusion that the trial judge was prepared to provide defendant sufficient time to investigate the content of Gardner's statement and to prepare for his testimony. As the judge noted, more than six hours had elapsed from the disclosure of Gardner's statement and the court's discussion concerning the potential for a plea, during which time additional information corroborating Gardner's statement had been obtained and presented to defendant. There is nothing in the record to suggest that defendant had an inadequate time to resurrect the plea negotiations and consider entry of the plea.

 
Affirmed.

The judgment of conviction was subsequently amended to reflect changes in jail credits.

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A-4735-02T4

January 30, 2006