STATE OF NEW JERSEY v. DONG SEOK
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2889-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONG SEOK,
Defendant-Appellant.
________________________________
Submitted January 29, 2018 – Decided April 16, 2018
Before Judges Messano and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
16-02-0534.
Andrew R. Burroughs, attorney for appellant
(Andrew R. Burroughs and Dennis Cleary, of
counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Arielle E. Katz, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
On July 15, 2016, following multiple adjournments so
defendant Dong Seok could seek the advice of independent
immigration counsel, the judge accepted defendant's guilty plea
to third-degree conspiracy to "violate the narcotics laws,"
N.J.S.A. 2C:5-2 and 35-5, and third-degree possession of heroin
with intent to distribute within one thousand feet of a school,
N.J.S.A. 2C:35-7(a). Under oath, defendant, who was not a United
States citizen, indicated he clearly understood his rights,
understood his guilty plea could result in deportation and told
the judge he was pleading guilty voluntarily. In return, the
State agreed to recommend a non-custodial probationary sentence
and dismiss ten other counts in the indictment against defendant.1
As to the conspiracy count, defense counsel elicited the
following factual basis for the plea:
Q. [D]irect[ing] your attention to August
25th of 2015. . . . [D]id you . . . have a
phone conversation with someone on that day?
A. Yes, sir.
. . . .
Q. And during that conversation, you
discussed the purchase and sale of narcotics
— specifically, heroin . . . .
A. Yes, sir.
1
The indictment contained a total of 62 counts, against 26
defendants, including defendant's mother, brother and ex-
girlfriend. The prosecutor consented to their entry into the Pre-
trial Intervention Program as part of the plea bargain.
2 A-2889-16T2
Q. [A]t some point, you were going to meet
with [your co-defendant] and . . . either
purchase or sell him narcotics.
A. Yes.
Directing defendant's attention to a different date, defense
counsel asked:
Q. [A]t some point, the police came to your
house and executed a search warrant, right?
A. Yes.
Q. And during the search of your home, certain
drugs were discovered.
A. Yes.
Q. And one of those drugs was heroin.
A. Yes.
Q. And you're a user of heroin.
A. Mm-hmm.
Q. You knew it was heroin, right?
A. Yes, sir.
Q. You knew it was illegal to possess heroin.
A. Yep.
. . . .
Q. Now with those drugs that you had in your
possession, your plan was to maybe not sell
them, but definitely share them with people
that you take drugs with, right? Give it out?
A. Mm-hmm.
3 A-2889-16T2
. . . .
Q. Yes or no?
A. Yes.
On October 11, 2016, defense counsel moved to be relieved
because of a "fundamental disagreement" with defendant, who now
wished to withdraw his guilty plea and go to trial. 2 On the
scheduled sentencing date, counsel told the judge defendant "was
looking to seek different counsel." The judge noted the plea had
been adjourned several times, and the sentencing had been adjourned
from a prior date. He told defendant, "This [i]s the sentencing
date. There's no one here representing that they will represent
you."
Defendant told the judge he thought successor counsel had
contacted the court or spoken to the prosecutor, and he expected
to have the funds necessary to retain successor counsel the next
week. However, the judge said no one called the court and no one
filed an appearance. He denied the adjournment request.
Believing she had an obligation to advance defendant's
withdrawal motion, counsel argued the four factors outlined by the
2
Apparently, defendant sent a certification to the judge outlining
his desire to withdraw his guilty plea. It is not in the appellate
record.
4 A-2889-16T2
Court in State v. Slater,
198 N.J. 145, 158-62 (2009).3 Counsel
said defendant believed he was innocent of the charges. After
considering the Slater factors, the judge denied the motion to
withdraw and sentenced defendant in accordance with the plea
agreement.
Approximately two weeks later, successor counsel filed a
motion for reconsideration. He certified that at the time of
defendant's guilty plea, he "was not fully aware of the immigration
consequences that would ensue." Counsel asserted that defendant
had since hired an immigration lawyer and was now aware "of his
likely deportation as a result of th[e] conviction."4
The judge held oral argument on the motion for
reconsideration. Defendant asserted the judge erred by denying
the adjournment request, and that he should have permitted
defendant to withdraw his guilty plea. Regarding the latter,
counsel argued relief was not premised upon the Slater factors;
3
The judge agreed, likening counsel's responsibility to the
obligation of post-conviction relief counsel. See State v. Rue,
175 N.J. 1, 19 (2002) ("[C]ounsel must advance the claims the
client desires to forward in a petition and brief and make the
best available arguments in support of them.").
4
The certification was not based on successor counsel's "personal
knowledge" and does not comply with Rule 1:6-6. Claypotch v.
Heller, Inc.,
360 N.J. Super. 472, 489 (App. Div. 2003).
5 A-2889-16T2
rather, defendant provided an inadequate factual basis at the time
of his guilty plea.
The judge acknowledged he had not previously engaged in a
thorough review of the factors that guide a trial court's exercise
of discretion in considering a late adjournment request. See
State v. Hayes,
205 N.J. 522, 538 (2011) (quoting State v.
Furguson,
198 N.J. Super. 395, 402 (App. Div. 1985)). In a
comprehensive oral decision, the judge did so and denied the motion
for reconsideration of the denial of defendant's request to adjourn
sentencing.
The judge then considered the newly asserted basis for
withdrawal of defendant's guilty plea. Defendant argued his
factual basis established only that he jointly possessed the heroin
with others, not that he possessed the drug with the intent to
distribute. Relying on the factual basis we cited above, the
judge denied defendant's motion for reconsideration of the denial
of his withdrawal motion. This appeal followed.
Before us, defendant reiterates the arguments made during his
motion for reconsideration. We affirm.
The Court faced a similar situation in Hayes, a case which
defendant does not cite in his brief. There, after pleading guilty
to counts in two separate indictments while represented by two
different attorneys, the defendant sought to withdraw his guilty
6 A-2889-16T2
pleas. Hayes,
205 N.J. at 528-30. Trial counsel on one of the
indictments confirmed that the defendant was seeking new counsel,
and that one of the attorneys contacted agreed to represent the
defendant on the withdrawal motion but had a schedule conflict
that kept him from appearing that day. Id. at 530-31. Trial
counsel could not advance an argument himself because he likely
would be a witness regarding the defendant's claim of ineffective
assistance. Ibid. He asked for an adjournment. Id. at 531.
Without ruling, the judge then heard from the defendant, who
essentially argued his motion to withdraw his guilty plea. Id.
at 531-32. The judge denied the request for an adjournment, denied
the motion to withdraw and proceeded to sentence the defendant.
Id. at 532-33.
After considering the factors set out in Furguson, id. at
538, the Court said,
No doubt, when defendant requested an
adjournment of his sentencing proceeding in
order to secure uncompromised counsel to
represent him in respect of the motion to
withdraw his guilty pleas, the trial court was
confronted with a quandary, although one that,
common experience tells us, occurs with
disturbing regularity.
. . . .
[I]n the circumstances presented, the
denial of defendant's request for an
adjournment was unreasonable and prejudicial
to defendant's rights.
7 A-2889-16T2
[Id. at 539-40.]
The Court also rejected the State's argument that any error in
denying the defendant's adjournment request was harmless. Id. at
540. It specifically found the trial court provided "no meaningful
analysis of the denial of defendant's withdrawal motion," id. at
540-41, and the Court had "no confidence in the uncounseled
proceedings below," noting "[w]e cannot know whether defendant
might have been able to satisfy the Slater standards with the help
of a lawyer." Id. at 541.
Since deciding Hayes, the Court has reiterated that "[i]f a
trial court conducts a reasoned, thoughtful analysis of the
appropriate factors, it can exercise its authority to deny a
request for an adjournment to obtain counsel of choice." State
v. Kates,
216 N.J. 393, 396-97 (2014) (citations omitted).
Thus, we underscore that only if a trial court
summarily denies an adjournment to retain
private counsel without considering the
relevant factors, or abuses its discretion in
the way it analyzes those factors, can a
deprivation of the right to choice of counsel
be found. Structural error is not triggered
otherwise.
[Id. at 397.]
Here, the judge himself noted that he originally failed to
engage in a detailed weighing of the Hayes factors on sentencing
day. The judge conducted a more thorough analysis when defendant
8 A-2889-16T2
moved for reconsideration. Based on his comprehensive oral opinion
denying the reconsideration motion, we have no doubt that the
judge did not mistakenly exercise his discretion by denying any
further adjournment prior to imposing sentence.
Of course, without a full explanation of the judge's reasoning
on sentencing day, defendant was placed in the unenviable position
of having an attorney, who herself was seeking to be relieved,
argue his motion to withdraw his guilty plea. Unlike the defendant
in Hayes, however, defendant was not without the benefit of
counsel. From the record provided, it appears that the only legal
support defendant supplied his attorney at the time was a claim
of actual innocence, something belied by defendant's own words at
the time of his plea allocution. Yet, counsel fashioned an
argument based upon the Slater factors as best she could.
More importantly, even if the judge should have granted yet
another adjournment of the sentencing, we are convinced, unlike
the Court was in Hayes, that any mistaken exercise of the judge's
discretion was harmless. We say that with assurance because the
reconsideration motion, albeit heard after sentence was imposed,
provides the essence of what would have been defendant's argument
had sentencing been adjourned, i.e., that defendant's factual
9 A-2889-16T2
basis was inadequate, a legal argument not asserted prior to
sentencing.5
Defendant argues that he only admitted to possessing heroin
with an intent to "share" the drugs with others. Therefore, his
factual basis asserted an affirmative defense to the possession
with intent charge.6 See State v. Morrison,
188 N.J. 2, 18 (2006)
(quoting State v. Lopez,
359 N.J. Super. 222, 233 (App. Div. 2003)
("We accept the self-evident precept . . . that 'one cannot acquire
something one already possesses' and thus two or more persons
cannot 'distribute to each other drugs they jointly possess.'")).
We acknowledged a defendant asserting facts that imply an
affirmative defense to the charge cannot provide an adequate
factual basis for a guilty plea. State v. Urbina,
221 N.J. 509,
528 (2015). However, nothing in defendant's allocution implied
that others jointly possessed the heroin with defendant, an
underlying predicate of the holdings in Morrison and Lopez. In
5
As noted, we do not have the certification defendant apparently
sent to the judge that was his de facto motion for withdrawal, so
we cannot tell precisely upon what he based a claim of actual
innocence. It may well have mirrored successor counsel's assertion
that defendant admitted facts that were legally insufficient to
prove the elements of conspiracy and possession with intent.
6
Other than to quote the Criminal Code's definition of conspiracy,
defendant's brief makes no specific argument regarding the
conspiracy count. An argument not briefed is deemed waived. State
v. L.D.,
444 N.J. Super. 45, 56 n.7 (App. Div. 2016).
10 A-2889-16T2
addition, our Criminal Code makes it unlawful for someone to
"distribute" or "possess or have under his control with intent
to . . . distribute . . . a controlled dangerous substance."
N.J.S.A. 2C:35-5(a)(1). "'Distribute' means to deliver," and
"'[d]eliver' or 'delivery' means the actual, constructive, or
attempted transfer from one person to another of a controlled
dangerous substance."
N.J.S.A. 2C:35-2. In short, possessing
heroin with the intent to share it with another is distribution,
and defendant's admissions under oath made him guilty of the
charge.
Affirmed.
11 A-2889-16T2
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