On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 98-02-002244.
Before Judges Petrella and Baime.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal requires us to define the standard applicable to a motion to withdraw a guilty plea based upon the State's concealment of exculpatory evidence. We hold that the court should grant such a motion if it is established that there is a reasonable probability that but for the State's failure to disclose, the defendant would not have pled guilty. Applying that standard, we conclude that the Law Division erred by denying defendant's motion to retract.
We need not recount the facts at length. Sergeant Paul Schuster of the New Brunswick Police Department received information from a confidential informant that Phillip Parsons and Ranique Carmen habitually sold drugs in an apartment located at 176 Memorial Parkway. Schuster arranged for his informant to make a "controlled purchase" of cocaine. Although he did not actually witness the transaction, Schuster observed the informant enter the apartment building and return shortly thereafter with drugs that "field-tested" positive for cocaine. The informant reported to Schuster that he had purchased the drugs from Parsons, who had retrieved them from a seventh floor apartment.
Several days later, Schuster received a telephone call from the informant indicating that Parsons and Carmen were again selling drugs on the grounds of the apartment building. Schuster, accompanied by Detective James Marshall and Raymond Hillyer, proceeded to the site and arrested both Parsons and Carmen. A search of Carmen's clothing revealed marijuana and a set of keys. While waiting in the front of the building with the handcuffed suspects, Schuster directed Marshall to determine whether the keys fit the lock of the seventh floor apartment from which the informant had earlier purchased the drugs. Marshall returned and indicated that the keys fit the lock of the designated apartment unit.
Detectives Marshall and Hillyer remained at the scene while Schuster obtained a search warrant. After obtaining the warrant, the three officers searched the seventh floor apartment. Marshall alone found drugs and weapons in one of the bedrooms.
Parsons was charged with possession of cocaine, possession of cocaine with intent to distribute, possession of cocaine within a school zone with intent to distribute, possession of drug paraphernalia, possession of a prohibited device, and possession of a weapon by a convicted felon. Following the return of the indictment, Parsons filed a motion seeking the release of Detective Marshall's personnel records. In his documentary submissions accompanying the motion, Parsons' attorney noted that he had read news reports indicating that Marshall had been accused of "misusing his position as a police officer." The prosecutor vehemently objected to release of this information. The Law Division denied Parsons' application on the ground that there was no indication there was "any ongoing investigation," and thus the motion was predicated on mere "rumor and speculation."
On the same day that his motion was denied, Parsons entered into an agreement with the State to plead guilty to possession of cocaine in a school zone with intent to distribute and possession of a weapon by a convicted felon. Following entry of Parsons' plea, four separate indictments were returned against Marshall alleging that he was in league with various drug dealers, and that he engaged in prostitution.
Parsons then moved to withdraw his guilty plea, citing the State's discovery violation. In his accompanying affidavit, Parsons' attorney represented that a witness had observed Marshall searching the seventh floor apartment before the police obtained a search warrant. According to the attorney, police reports indicated that Marshall was alone in the bedroom when he later allegedly discovered the drugs and weapons for which Parsons was charged. Although Parsons did not specifically claim that he was innocent, he asserted that he would not have pled guilty had he been aware of the full nature and extent of the Marshall investigation.
Despite the prosecutor's candid acknowledgment that the State had violated Parsons' constitutional rights by failing to disclose the investigation relating to Marshall's activities, he urged the court to uphold the plea. The prosecutor stressed that the evidence seized from the apartment would be admissible under the inevitable discovery doctrine even if Marshall searched the apartment before the police obtained the warrant, as Parsons claimed. The prosecutor added that Parsons neither asserted his innocence nor argued that Marshall had "planted" the drugs in the apartment. The Law Division denied the motion on this basis, finding that Parsons would probably have ...