STATE OF NEW JERSEY v. MICHAEL KELLY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5710-04T15710-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL KELLY,

Defendant-Appellant.

_____________________________________________________

 

Submitted June 13, 2006 - Decided June 30, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New

Jersey, Law Division, Cape May County,

Indictment No. 05-01-50-I.

Stefankiewicz & Barnes, attorneys for appellant

(David A. Stefankiewicz, of counsel and on the

brief).

Robert L. Taylor, Cape May County Prosecutor,

attorney for respondent (J. Vincent Molitor,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On February 10, 2005, pursuant to a negotiated plea agreement, defendant entered a plea of guilty to third degree possession of CDS in exchange for a recommended four-year sentence to the custody of the Commissioner of the Department of Corrections. Prior to sentencing, defendant moved to withdraw his guilty plea. In his "motion to withdraw a guilty plea per R. 3:21-1," defendant certified:

3. Upon my arrest, I was lodged in the Cape May Correctional Facility where I remained until I entered into my plea bargain on February 10, 2005. At some point in time after my arrest, and subsequent to my Indictment in or about January of 2005, I was assigned Cape May County Public Defender, H. Parker Smith, to represent me. The only time I met with Mr. Smith was at Court for a few minutes before my guilty plea. He gave me a copy of my discovery, which I had not seen prior. I spent about ten (10) minutes with him and he left the holding area. I can honestly say that I had no idea whatsoever that the arrest, and the search and seizure resulting in the discovery of the evidence, may have been constitutionally defective. In fact, my recollection is that Mr. Smith basically told me that there really wasn't any defense to the charge, so I pled guilty. However, there was so much ground to cover in our short meeting that I may not have comprehended everything he said. Certainly, I had no idea that there were problems with the case.

4. Upon my release from jail, I told my employer of the circumstances, and he recommended that I go see David A. Stefankiewicz, Esquire[,] because, to him, a four year State Prison term seemed unreasonable and unduly harsh for possess[ion] of a $10.00 quantity of cocaine.

5. Prior to seeing Mr. Stefankiewicz, I dropped off my discovery to his office. During our initial interview, Mr. Stefankiewicz made it very clear that he believed that my arrest, and subsequent search and seizure, was not supported by probable cause, and that these issues should have been explored prior to the entry of any guilty plea. He further indicated that I received basically nothing in exchange for my guilty plea, other than being released from jail that day. Essentially, I pled guilty to a third degree crime and received the presumptive State Prison term.

6. Until Mr. Stefankiewicz spent about an hour with me explaining the law, and the problems in my case, I had no idea that there was a defense. Had I known that the case was defensible, and had I known that there was some question with respect to my arrest, and the subsequent search and seizure, I would have fought the case. Realistically, as articulated by Mr. Stefankiewicz, I had very little to lose.

7. Based upon the foregoing, it is respectfully requested that I be allowed to withdraw my guilty plea prior to sentencing and advance the constitutional challenges articulated herein, and in the Brief prepared by my defense attorney.

Judge Carmen Alvarez noted that defendant was extended term eligible and that defendant could not take "a belated second look at the circumstances in order to warrant a withdrawal of a guilty plea on the date for sentence." She found that defendant "gave up any constitutional rights that he may have had" "in exchange for a very favorable plea recommendation," and denied the application to withdraw. She also noted that, if defendant was inappropriately represented incident to the negotiated disposition, he could raise "a claim of ineffective assistance of counsel . . . after all other rights of appeal ha[d] been completed."

On this appeal defendant argues that "the defendant must be allowed to withdraw his plea of guilty in order to correct a manifest injustice." While we are more liberal in granting withdrawals before a sentence is imposed, see R. 3:21-1; State v. Taylor, 80 N.J. 353, 365 (1979); State v. Deutsch, 34 N.J. 190, 198 (1961), here we deal with a negotiated plea apparently entered on the day of trial. We cannot be sure of the timing of the plea, however, because the plea transcript has not been presented to us incident to the appeal, and for that reason alone we cannot examine the plea colloquy to evaluate the claim that defendant's "plea was not made 'knowingly and intelligently' in the sense that he had no meaningful understanding that he had a fairly solid defense to the possession charge." See R. 2:5-3(b); see also State v. Smullen, 118 N.J. 408, 416-17 (1990); State v. Luckey, 366 N.J. Super. 79, 87-88 (App. Div. 2004); State v. Huntley, 129 N.J. Super. 13, 16, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974), dealing with the impact of a negotiated disposition. Defendant's guilty plea would not have constituted a waiver of any motion to suppress physical evidence he might have filed. See R. 3:5-7; State v. Knight, 183 N.J. 449, 471 (2005); State v. Crawley, 149 N.J. 310, 316 (1997); State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). However, defendant apparently did not file a motion to suppress, and the plea offer may have contemplated that the disposition in the absence of same. R. 3:9-1(b),(c),(d). Again, there is no plea transcript before us, as required by R. 2:5-3, in order to consider the claims raised by defendant.

We do not pass upon defendant's claim that he received ineffective assistance of counsel with respect to the plea and negotiated disposition. See State v. Preciose, 129 N.J. 451 (1992).

The judgment of conviction is affirmed.

 

Defendant's presentence report has not been presented to us on the appeal.

(continued)

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A-5710-04T1

June 30, 2006