Opinion
DOCKET NO. A-4840-12T2
01-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LOUIS J. STOKES, a/k/a STONES LOUIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the briefs). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 09-07-01184 and 11-08-01416. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the briefs). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Louis Stokes was charged in two separate Ocean County indictments with drug distribution and related offenses. On July 1, 2009, defendant was charged in Count Six of Indictment No. 09-07-01184, along with co-defendants Robert Gunnell, Jr. and Paul Addonizzio, with second-degree conspiracy to manufacture, distribute and/or possess with the intent to distribute cocaine, N.J.S.A. 2C:35-5a, N.J.S.A. 2C:35-5b(1), and N.J.S.A. 2C:5-2.
On August 10, 2011, defendant was charged in Indictment No. 11-08-01416 with third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (Count Seven); fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3) (Count Eight); first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (Count Nine); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5(b)(2) (Count Eleven); third-degree possession of cocaine, heroin, and oxycodone, N.J.S.A. 2C:35-10a(1) (Counts Ten, Twelve and Thirteen); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1) (Count Fourteen). Co-defendant Aisha L. Washington was also charged in Counts Seven through Thirteen.
Defendant moved to suppress evidence seized as the result of wiretaps that led to both indictments. He also moved to dismiss Count Six of Indictment No. 09-07-01184 on the basis that the evidence presented to the grand jury was insufficient to support the conspiracy charge. After the motions were denied, defendant entered a guilty plea on both indictments before Judge Francis R. Hodgson, who heard and decided the pre-trial motions on Indictment No. 09-07-01184. Pursuant to the plea agreement, defendant pled guilty to Count Six of Indictment No. 09-07-01184, and Counts Nine, Eleven and Fourteen of Indictment No. 11-08-01416. Defendant also agreed to exonerate Washington. In return, the State agreed to recommend a maximum fifteen-year term of imprisonment with a six-year period of parole ineligibility, all sentences to run concurrently, and to dismiss the balance of Indictment No. 11-08-01416. On March 15, 2013, defendant was sentenced to an aggregate twelve-year term of imprisonment with a six-year parole ineligibility period. This appeal followed.
In his initial brief, defendant raised the following three points for our consideration:
POINT I
THE EVIDENCE COLLECTED IN CONNECTION WITH BOTH INDICTMENTS SHOULD HAVE BEEN SUPPRESSED BECAUSE IN BOTH INSTANCES THE STATE FAILED TO COMPLY WITH N.J.S.A. 2A:156A-16, THE PROVISION OF THE WIRETAP ACT THAT MANDATES SERVICE OF AN INVENTORY ON AN AFFECTED PARTY INFORMING HIM THAT HE WAS RECORDED.
POINT II
THE CONSPIRACY CHARGE UNDER COUNT 6 OF INDICTMENT NO. 09-07-01184 SHOULD HAVE BEEN
DISMISSED BECAUSE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO THE GRAND JURY THAT DEFENDANT ENGAGED IN A CONSPIRACY.
POINT III
DEFENDANT'S PLEA MUST BE VACATED BECAUSE HE DID NOT GIVE A FACTUAL BASIS FOR THE CHARGED OFFENSE OF CONSPIRACY. (Not Raised Below)
After the State filed its brief in opposition, defendant filed a supplemental letter-brief raising the following additional argument:
POINT IVAdditionally, in a simultaneous reply brief, defendant advanced the related point:
BECAUSE THE COURT FAILED TO INFORM DEFENDANT THAT BY ENTERING A GUILTY PLEA HE WAIVED HIS CONSTITUTIONAL RIGHTS TO TRIAL, HE DID NOT ENTER THE PLEAS KNOWINGLY AND VOLUNTARILY AND MUST BE ALLOWED TO WITHDRAW THEM (Not Raised Below).
REPLY POINT II
BECAUSE THE COURT FAILED TO INFORM DEFENDANT THAT BY ENTERING A GUILTY PLEA HE WAIVED HIS RIGHT TO APPEAL HIS PRETRIAL MOTIONS, HE DID NOT ENTER THE PLEAS KNOWINGLY AND VOLUNTARILY AND MUST BE ALLOWED TO WITHDRAW THEM; ALTERNATIVELY, THE PLEAS SHOULD BE TREATED AS CONDITIONAL, AND HE SHOULD BE ALLOWED TO APPEAL THE PRETRIAL RULINGS.
We begin by examining the procedural context in which Points I and II are raised. Both points challenge the denial of defendant's pre-trial motions followed by the entry of his unconditional guilty plea. In Point I, defendant appeals the denial of his motions to suppress the wiretap evidence in both indictments on the grounds that the State failed to comply with the inventory requirements of N.J.S.A. 2A:156A-16. In Point II, defendant appeals the denial of his motion to dismiss the conspiracy charge set forth in Count Six of Indictment No. 09-07-01184.
"Generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). The waiver even applies to claims of certain constitutional violations. State v. Knight, 183 N.J. 449, 470 (2005); State v. J.M., 182 N.J. 402, 410 (2005). Rule 3:5-7(d) provides an exception to the waiver rule, and specifically allows a defendant to challenge on appeal an unlawful search and seizure of physical evidence after entering a guilty plea.
Rule 3:9-3(f) provides an additional vehicle pursuant to which a defendant can enter a conditional guilty plea and preserve his or her right to appeal an adverse pretrial determination. However, the Rule requires that a defendant satisfy several conditions before such a plea can be accepted. "[A] defendant may plead guilty while preserving an issue for appellate review only with the 'approval of the court and the consent of the prosecuting attorney.'" State v. Gonzalez, 254 N.J. Super. 300, 304 (App. Div. 1992) (quoting R. 3:9-3(f)). This reservation of "the right to appeal from the adverse determination of any specified pretrial motion" must be placed "on the record." R. 3:9-3(f).
In the present case, defendant's guilty plea was not a conditional plea that preserved his "right to appeal from the adverse determination of any specified pretrial motion." R. 3:9-3(f). After question 4(e) on the plea form, "Do you further understand that by pleading guilty you are waiving your right to appeal the denial of all other pretrial motions except the following:" defendant answered "N/A." Also, defendant did not reserve his right to appeal on the record, and the State did not consent to nor did the court approve the entry of a conditional plea.
As a consequence, we conclude that defendant waived the right to appeal the denial of his motion to dismiss Count Six of Indictment No. 09-07-01184 on the basis that the evidence presented to the grand jury was insufficient to support the conspiracy charge. We therefore decline to consider the arguments raised in Point II of defendant's brief. See, e.g. State v. Marolda, 394 N.J. Super. 430, 435-36 (App. Div.), certif. denied, 192 N.J. 482 (2007) (refusing to consider defendant's argument that the court erred in failing to dismiss the indictment "[b]ecause [he] did not preserve the issue[]. . . by entry of a conditional guilty plea, he [] waived his right to relief . . . .").
As noted, in Point I defendant appeals the denial of his motion to suppress evidence seized as the result of wiretaps that led to both indictments. Specifically, he contends this evidence should have been suppressed because the State failed to comply with the inventory service requirement of N.J.S.A. 2A:156A-16. He relies on Rule 3:5-7(d), which affords an automatic right to appeal the denial of a motion to suppress evidence notwithstanding that it follows a guilty plea. The State urges that we strictly construe Rule 3:5-7(d) to apply only to constitutional claims of unlawful searches and seizures of physical evidence (citing State v. Robinson, 224 N.J. Super. 495 (1988)), and not to the statutory violation asserted by defendant.
Support for the State's position appears in State v. Keegan, 188 N.J. Super. 471 (App. Div.), certif. denied, 93 N.J. 320 (1983). In Keegan, following the entry of his unconditional guilty plea, the defendant sought to appeal from the State's violation of the sealing provisions of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -137. We characterized the State's failure to comply with the statutory sealing requirement as a "technical violation" of the Wiretap Act that was "not of constitutional dimension." Id. at 472-73. Accordingly, we held that:
[Rule] 3:5-7(d) preserves the right to appeal from an unconditional plea of guilty to constitutional search and seizure violations only. If a defendant in a criminal action wishes to preserve his right to appeal from an adverse pretrial ruling on a statutory violation of the wiretap statute, . . . which evidence he has chosen not to dispute before a fact-finder, he must do so in accord with the provisions of [Rule] 3:9-3(f) controlling unconditional pleas of guilty in general, including court approval and prosecutorial consent.
[Id. at 475-76.]
Nonetheless, we have chosen not to apply Rule 3:9-3(f) when "[s]trict adherence to [its] requirements . . . 'would result in an injustice.'" Gonzalez, supra, 254 N.J. Super. at 304 (quoting R. 1:1-2). Here, we recognize that Rule 3:5-7(d) speaks in broad terms about a defendant's right to appeal the denial of a "motion to suppress evidence," without reference to the distinction we drew in Keegan, and that defendant may well have been unaware of this distinction when he entered his plea. In the interest of fairness, we therefore proceed to address the merits of defendant's argument that the State's failure to comply with the inventory requirements of the Wiretap Act should have resulted in the suppression of the wiretap evidence that led to both indictments.
In pertinent part, the Wiretap Act requires that:
. . . not later than [ninety] days after the termination of the period of the order or of extensions or renewals thereof, . . . the issuing or denying judge shall cause to be served on the persons named in the order or application [and] persons arrested [or indicted] as a result of the interception of their conversations . . . an inventory.The statute requires that the inventory include various information such as notice that the wiretap order was entered, the date the order was entered, and the fact that oral communications were or were not intercepted. Upon receipt of the inventory an individual may move to inspect such portions of the intercepted communications, applications, and orders as the court determines to be "in the interest of justice." Ibid.
[N.J.S.A. 2A:156A-16].
N.J.S.A. 2A:156A-21 authorizes suppression of evidence where:
a. The communication was unlawfully intercepted;
b. The order of authorization is insufficient on its face [or];
c. The interception was not made in conformity with the order of authorization or in accordance with the requirements of [N.J.S.A.] 2A:156A-12.
[N.J.S.A. 2A:156A-21].
"The Wiretap Act must be strictly construed to safeguard an individual's right to privacy." State v. Ates, 217 N.J. 253, 268 (2014). However, "[n]ot every failure to comply fully with the procedural requirements of the Act" mandates suppression. State v. Sullivan, 244 N.J. Super. 357, 363 (1990). In Sullivan, the State's failure to record intercepted conversations due to an equipment malfunction violated the Act's requirement that any intercepted wire or oral communication be recorded. Id. at 361. Nonetheless, we concluded "that the violation neither requires nor justifies suppression of [the] conversations intercepted and recorded after the malfunction had been corrected." Id. at 361-62. We reasoned that "[v]iolation of a procedural requirement of the Act triggers the statutory suppression remedy only where the procedure 'is a critical part of the protections surrounding a court-authorized electronic surveillance.'" Id. at 363 (citing State v. Cerbo, 78 N.J. 595, 603 (1979)).
In State v. Murphy, 148 N.J. Super. 542 (App. Div. 1977), we squarely confronted the issue raised by defendant in this appeal. In Murphy, the State failed to name the defendants in the wiretap orders, and also failed to serve inventories on them. Id. at 548. We concluded that, in the absence of prejudice to the defendants or "intentional or insolent violations of [these] statutory requirements" by the State, suppression was not warranted. Id. at 548-49. See also State v. Sidoti, 134 N.J. Super. 426, 429 (App. Div. 1975) (violation of N.J.S.A. 2A:156A-16 inventory requirement does not justify suppression).
Here, with respect to Indictment No. 09-07-01184, the State conceded that it failed to serve defendant with an inventory due to an "oversight." Judge Hodgson noted that defendant did not claim any prejudice as a result of this omission. He also found "no indication that the State was insolent or attempted to do this to gain some tactical advantage." Accordingly, relying on Murphy and Sidoti, Judge Hodgson determined "that the remedy of suppression is not appropriate in this case."
Judge Wendel E. Daniels heard defendant's motion to suppress the wiretap evidence pertinent to Indictment No. 11-08-01416. At the conclusion of the hearing, in his detailed written opinion, Judge Daniels found that the State did in fact serve defendant with a notice of inventory by both registered and regular mail at his address of record in Barnegat. The judge rejected defendant's argument that such service was ineffective because the State knew he was incarcerated. Judge Daniels determined that defendant did not elicit "any factual evidence to support that the State had a wrongful motive in concealing this information. Moreover, no prejudice resulted from the failure of the defendant receiving the notice of inventory while he was incarcerated." Accordingly, citing Murphy, the judge concluded that suppression was not warranted.
Having reviewed the record in light of the arguments advanced by defendant, we find no factual or legal error in the well-reasoned decisions of both motion judges. Both judges correctly concluded that, under the facts presented, suppression was not warranted. Accordingly, we affirm the denial of defendant's motions to suppress the wiretap evidence.
In Point III, defendant argues that his guilty plea must be vacated because he did not give an adequate factual basis for the conspiracy charge set forth in Count Six of Indictment No. 09-07-01184. We disagree.
When a defendant challenges the factual basis for a guilty plea, our review is de novo. State v. Tate, 220 N.J. 393, 403-04 (2015). That is so because "[a]n appellate court is in the same position as the trial court in assessing whether the factual admissions during a plea colloquy satisfy the essential elements of an offense." Id. at 404.
Trial courts may not accept a guilty plea unless there is a factual basis supporting it. R. 3:9-2. "Indeed, 'it is essential to elicit from the defendant a comprehensive factual basis, addressing each element of a given offense in substantial detail.'" State v. Perez, 220 N.J. 423, 432 (2015) (quoting State v. Campfield, 213 N.J. 218, 236 (2013)). Trial courts "must be satisfied from the lips of the defendant . . . that he committed every element of the crime charged." Id. at 432-33 (citations and internal quotation marks omitted).
Here, Count Six of Indictment No. 09-07-01184 charged that defendant conspired with co-defendants Gunnell, Addonizzio, and others to manufacture, distribute, and/or possess with the intent to distribute cocaine. The State alleged that defendant was part of a "chain conspiracy" whereby he agreed to sell cocaine to Gunnell, who would split the cost with Addonizzio and then redistribute it to others. "Under the chain [conspiracy] analysis, the government need not prove a direct connection between all the conspirators." State v. Roldan, 314 N.J. Super. 173, 182 (App. Div. 1998). In a chain conspiracy, "there is successive communication and cooperation between A and B, B and C, C and D and so on." Id. at 181. "Such a drug distribution conspiracy falls outside of the general rule that a simple agreement to buy drugs is insufficient to establish a conspiracy between the seller and the buyer." Id. at 182.
In his plea colloquy, defendant specifically acknowledged that he agreed and arranged to illegally distribute cocaine to another person. We find these statements sufficient to satisfy the essential elements regarding defendant's complicity in the chain conspiracy.
The State points out that, during his presentence interview, defendant "stated he conspired with Paul Addonizzio and Robert Gunnell to sell a [half-]ounce of cocaine on one occasion." While consistent with the State's theory as to defendant's role in the chain conspiracy, we do not rely on this statement, since "the factual basis for a guilty plea must come directly from the defendant and not from informational sources outside of the plea colloquy." Tate, supra, 220 N.J. at 408. --------
Finally, in his reply brief, defendant argues for the first time that he should be allowed to withdraw his guilty plea because the trial court accepted it without informing him that he was waiving the right to appeal the denial of his pretrial motions. However, we note that "[r]aising an issue for the first time in a reply brief is improper" because the trial court has not considered it and the parties have not "properly addressed" it. Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001). See also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available . . . .").
Accordingly, we decline to address defendant's belated argument. For the same reason, we reject defendant's argument in Point IV of his supplemental brief, filed simultaneously with his reply brief, that he should be allowed to withdraw his guilty plea because the trial court accepted it without informing him that he was waiving his constitutional right to trial. We conclude that these arguments are best presented in the first instance by motion in the trial court to withdraw defendant's plea and/or by a petition for post-conviction relief. Nothing in our opinion is intended to preclude defendant from pursuing those avenues of relief. We express no opinion as to the merits of such applications should they be filed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION