STATE OF NEW JERSEY v. ALIMAMY SESAY

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5626-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALIMAMY SESAY,

Defendant-Appellant.

___________________________________________

April 29, 2013

 

Argued March 18, 2013 - Decided

 

Before Judges Graves and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-09-1419.

 

Gracia Robert Montilus argued the cause for appellant (GRM Legal Works, L.L.C., attorneys; Mr. Montilus, of counsel and on the brief).

 

Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).

PER CURIAM

Defendant Alimamy Sesay appeals from a June 7, 2012 order of the Law Division denying his motion to withdraw his guilty plea.

On appeal, defendant raises the following points for our consideration:

POINT ONE

 

THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION TO WITHDRAW [HIS] GUILTY PLEA AFTER BEING PROVIDED WITH SUFFICIENT EVIDENCE THAT DEFENDANT DID NOT PROVIDE AN ADEQUATE FACTUAL BASIS AT THE TIME OF THE PLEA.

 

POINT TWO

 

THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT HAD NOT MET THE FIRST AND SECOND FACTORS ARTICULATED IN STATE V. SLATER1 AND FAILING TO CONSIDER THE REMAINING FACTORS IN ORDER TO DETERMINE WHETHER TO SET ASIDE DEFENDANT'S GUILTY PLEA.

We have carefully considered these arguments in light of the record and applicable legal standards, and we affirm.

We glean the following facts from the record. On April 10, 2011, at approximately 2:00 p.m., Patrolman Ziola of the Sayreville Police Department was dispatched for a "building check" at apartment 4-A in the Winding Woods apartment complex. Ziola found the apartment door unlocked, and after entering, noticed a man lying on the floor, wrapped in a blanket, under the front window. Ziola identified the man as Johnson Akinleye. Akinleye told Ziola he was homeless and "just staying the night." Ziola informed Akinleye that he was trespassing and ordered him to wait at the door while he checked the rest of the apartment.

When Ziola opened the bedroom door, he saw defendant with a young woman, who was later determined to be fourteen years old. Ziola told all three to leave the apartment, placed defendant and Akinleye in his patrol car, and he called for backup. After Patrolman Monaco arrived to assist, Ziola returned to the apartment and observed one blunt cigarette and five glassine bags containing a white powder residue on the kitchen counter. Ziola arrested all three suspects and transported them to police headquarters.

When defendant was asked to empty his pockets, he had a cigarette box containing a metal cigarette that Ziola referred to as a "one-hitter" in his police report.

On September 21, 2011, a Middlesex County grand jury returned an indictment charging defendant and Akinleye with third-degree burglary, N.J.S.A. 2C:18-2 (count one). In the same indictment, defendant was charged with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (count two); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three).

On December 16, 2011, defendant pled guilty to counts one and two, pursuant to a plea agreement that called for a three year prison term to run concurrent with a violation of probation. As part of the agreement, the State agreed to dismiss the endangering the welfare of a child charge. During his plea allocution, defendant admitted that he entered the residence without authorization and he did so with intent to commit a crime, that being, possession of cocaine:

[Defense Counsel]: April 12, 2011, were you in Sayreville?

 

[Defendant]: Yes.

 

[Defense Counsel]: More specifically, were you at Winding Woods, Building 37, Apartment 4A?

 

[Defendant]: Yes.

 

[Defense Counsel]: That's a residence?

 

[Defendant]: Correct.

 

[Defense Counsel]: You entered that residence?

 

[Defendant]: Correct.

 

[Defense Counsel]: You didn't have authorization to do that, right?

 

[Defendant]: No.

 

[Defense Counsel]: You did so when you entered it you had the intent to commit a crime inside, correct?

 

[Defendant]: That's correct.

 

[Defense Counsel]: And the crime that's committed inside was being in possession of cocaine, correct?

[Defendant]: Correct.

 

[Defense Counsel]: You knew you were not supposed to possess cocaine?

 

[Defendant]: Right.

 

[Defense Counsel]: Yes?

 

[Defendant]: Yes.

 

Prior to sentencing, defendant moved to withdraw his plea, claiming his counsel had not provided discovery to him prior to the entry of his plea. The judge denied defendant's motion and imposed a sentence consistent with the agreement.

On appeal, defendant claims there was insufficient factual basis for his plea, and a lack of proof as to whether defendant possessed the cocaine when he entered the apartment. At the time the plea was entered, the transcript indicates that the judge seemed to support this theory, suggesting that if defendant possessed the cocaine when he entered the apartment and was just looking for "a place to get high," the elements of burglary would not be present. However, at the hearing on defendant's motion to withdraw his plea, the judge clarified his statement and indicated that he had actually said that, under that scenario, the elements supporting burglary would be present, and the transcript was inaccurate. The prosecutor agreed with the court's clarification, although defendant's counsel argued the transcript was accurate.

In State v. Williams, 229 N.J. Super. 179, 183 (App. Div. 1988), we recognized that a burglary can be committed when the defendant intends to continue to commit the underlying crime he or she was already committing before the unlawful entrance. In Williams, the police observed the defendant engaging in a suspected drug transaction. Id. at 181. In an effort to escape arrest,

defendant ran up the stairs of his building, jumped from the fire escape of the building to the fire escape of an adjoining building, removed the window screen from an apartment in that building and entered the apartment. Shortly thereafter he exited the apartment through the window he had entered and descended the fire escape, at which point he was apprehended.

 

[Ibid.]

"[F]ifteen vials of cocaine were found on defendant's person" and another three vials were found "near the window defendant had used to enter." Ibid. The defendant was convicted after trial of drug offenses as well as burglary. Ibid.

We held that the defendant's entry into the apartment was a continuation of the crime of eluding which began at the point which the defendant first ran from the police. Id. at 183. Because the defendant entered the apartment with the intention of committing the crime of eluding, we found sufficient support for the burglary conviction. Ibid.

Here, defendant's allocution presented a sufficient factual basis and it is immaterial whether defendant possessed the cocaine when he entered the apartment, as long as he entered illegally with intent to possess cocaine.

Defendant also claims that he did not receive the State's discovery prior to the entry of his guilty plea and he would not have pled guilty "had he been fully advised of the State's discovery." The only discovery contained in the record is Officer Ziola's police report, indicating that after the three trespassers were arrested and removed from the apartment, Ziola re-entered the apartment and found five glassine bags containing a white powder residue on the kitchen counter. This report is consistent with defendant's allocution and there is nothing contained in the report that appears remotely exculpatory.

We are satisfied that defendant's remaining arguments lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2).

A

ffirmed.

1 198 N.J. 145 (2009).