January 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN E. GERLACH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-12-1576 and 03-12-1582.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Sapp-Peterson and Messano.
Following the denial of his motion to suppress evidence seized during a search conducted by the Old Bridge police department pursuant to a warrant, defendant pled guilty to second degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2), and fourth degree possession of a weapon by certain persons prohibited from possessing same, N.J.S.A. 2C:39-7(a). Thereafter, and prior to sentencing, defendant moved to withdraw his guilty pleas and proceed to trial.
On June 3, 2005, the judge denied defendant's motion and sentenced him to a term of five years imprisonment with a thirty-month period of parole ineligibility on the drug conviction, and a concurrent eighteen-month sentence on the weapons offense. The appropriate financial penalties were also imposed.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN UPHOLDING THE WARRANT-AUTHORIZED SEARCH. U.S. Const. Amend. IV, XIV; N.J. Const. (1947), Art. I, par. 7.
THE MOTION COURT ERRED IN DENYING DEFENDANT'S APPLICATION TO WITHDRAW HIS PLEA. U.S. Const., Amend. V, VI, XIV; N.J. Const. (1947), Art. 1, Pars. 1, 9, 10.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
The undisputed facts demonstrate that on September 8, 2003, the Old Bridge Township municipal court judge issued a search warrant based upon an affidavit filed by Detective Michael J. Snee of the Old Bridge Township police department. The warrant authorized the search of the premises located at 335 Monroe Avenue, in Old Bridge, described as "a one-story single family residence," along with an "unattached garage to the left of the house." The warrant further authorized the search of defendant who was identified by name and physical description. On the same day the warrant was issued, members of the Old Bridge police department executed a search of the premises and seized cocaine as well as brass knuckles and two switchblade knives.*fn1
Defendant contends the judge erred in "upholding the warrant issued in this matter, or, at the very least, in failing to order an evidentiary hearing as to the assertions contained in the affidavit submitted in support of that warrant." He argues that the affidavit in support of the warrant contained false information regarding the extent of his prior criminal record, and that it otherwise factually failed to establish probable cause. Alternatively, defendant argues that the false statements contained in the affidavit merited an evidentiary hearing on the issue, and that it was error for the motion judge to decide the motion to suppress without conducting such a hearing.
While we acknowledge that defendant demonstrated the affidavit contained false statements by Snee, we disagree that this required an evidentiary hearing because 1) the falsity of the statements was essentially acknowledged by the State; and 2) the balance of the affidavit set forth ample probable cause for the issuance of the warrant. Therefore, not only was an evidentiary hearing unnecessary, defendant's overarching argument that the motion should have been granted and the evidence suppressed is unavailing.
In his affidavit, Snee testified that during the month of August 2003, a confidential informant (CI) who had provided him with "accurate and reliable" information "on many occasions in the past," told him that "Shawn Gerlach was selling [c]ocaine out of his residence located at 335 Monroe Ave[nue] . . . ." The CI also advised Snee that defendant kept "quantities of cocaine in an unattached garage on the property next to the house."
On August 17 and August 31, 2003, Snee arranged for a CI to buy cocaine from defendant. In each instance, Snee claimed the CI contacted defendant, was given cash by the police, and met with defendant at 335 Monroe Avenue. On both occasions, the police maintained visual surveillance of the CI as he met with defendant and engaged in a hand-to-hand transaction, giving defendant the money and receiving cocaine in return. On one occasion, the police observed defendant meet with the CI and then go to the garage on the premises before completing the exchange.
Snee then claimed that a "criminal history check" of defendant revealed "[eight] felony convictions . . . for possession of cocaine ([three] counts) and possession of cocaine with the intent to distribute (five counts)." The affidavit continued that the "convictions . . . [were] dated 10-21-93 and [defendant was sentenced to [three hundred and sixty four] days in the Middlesex County Jail."
It is undisputed that defendant's prior criminal history did not reflect eight prior indictable convictions. Although the motion judge made no specific factual findings as to the defendant's actual prior criminal record, defendant has referred us to his pre-sentence report for an accurate recount of the facts. It would appear that at the time the affidavit was filed, although defendant had numerous convictions in municipal court, he had only one indictable conviction. This indeed occurred on October 21, 1993, when defendant was sentenced on Middlesex County indictment #93-02-00330 to five years of probation with a condition that he serve three hundred and sixty four days in jail. That indictment originally charged defendant in eight counts with various narcotics offenses and it is unclear from the report on what charge or charges defendant was actually sentenced.
Defendant argues, as he did before the motion judge, that Snee's false statement regarding the extent of his criminal history "could not but have improperly impacted upon the grant of the warrant."*fn2 He contends that pursuant to our holding in State v. Dispoto, 383 N.J. Super. 205 (App. Div. 2006), mod. on other grounds, 189 N.J. 108 (2007), having demonstrated the falsity of Snee's recitation of his prior criminal history, the judge was obligated to conduct an evidentiary hearing. We disagree.
In Dispoto, we took the opportunity to reiterate what has been the state of the law in New Jersey in this regard for some time now. We noted,
[U]nder certain circumstances, a search warrant's validity may be questioned, in which case an evidential hearing may be afforded. "[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request."
[Dispoto, supra, 383 N.J. Super. at 216 (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed. 2d 667, 672 (1978)(emphasis added).]
We accept that defendant established Snee's statements regarding his prior criminal history were false, and we assume, arguendo, that they were made with reckless disregard for the truth. As a veteran police detective, Snee clearly should have understood the difference between his claim--that defendant had eight "felony" convictions for drug offenses--and reality--that defendant had been convicted only once before for an indictable offense or offenses.
Nevertheless, an evidentiary hearing was not required to establish the falsity of Snee's statement or the true state of defendant's prior criminal record. It was essentially admitted by the State. As we noted in Dispoto, the purpose of the hearing is so that a "[d]efendant [may] then establish by a preponderance of the evidence that the circumstances giving rise to the hearing did in fact occur." Dispoto, 383 N.J. Super. at 217 (citing Sheehan, supra, 217 N.J. Super. at 26). In other words, at the hearing, a defendant must establish the falsity of the affiant's statement, that it was made with reckless disregard for the truth, and that the true state of affairs is other than what is set forth in the affidavit. The circumstances giving rise to the hearing in this case, Snee's false statements, were admitted; thus, no hearing was required.
More importantly, we think it abundantly clear that the "false statement[s]" were not "necessary to the finding of probable cause," that led to the issuance of the warrant. Franks, supra, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed. 2d 667, 672. "[T]he statements challenged as false must be material to the extent that when they are excised from the affidavit, whatever remains no longer establishes the requisite probable cause to support issuance of the search warrant." State v. Sheehan, 217 N.J. Super 20, 25 (App.Div. 1987); accord State v. Howery, 80 N.J. 563, 568, cert. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed. 2d 424 (1979).
Defendant argues that the affidavit is deficient because it lacks details of the CI's identity and past reliability, and fails to state the basis of Snee's "personal know[ledge]" of defendant. Together with the falsity of Snee's statements regarding defendant's past criminal history, defendant argues the motion to suppress should have been granted, or an evidentiary hearing held.
This argument, too, is unpersuasive. In considering the adequacy of probable cause contained in an affidavit in support of a search warrant, "courts must consider the totality of the circumstances, and they must deal with probabilities." Schneider v. Simonini, 163 N.J. 336, 361 (2000). "Information related by informants may constitute a basis for probable cause, provided that a substantial basis for crediting that information is presented." State v. Jones, 179 N.J. 377, 389 (2004). A controlled buy of narcotics based upon an informant's tip "typically will be persuasive evidence in establishing probable cause." State v. Sullivan, 169 N.J. 204, 217 (2001). While the fact that a controlled buy occurred may not be conclusively demonstrate the existence of probable cause for the issuance of the warrant, "even one additional circumstance might suffice." Jones, supra, 179 N.J. at 392.
Snee's informant, who had provided reliable information in the past, identified defendant by physical description and name. Snee, a veteran officer who had received training in the investigation and detection of narcotics violations, knew defendant. The tip given by the informant regarding defendant's use of the unattached garage to store the drugs was corroborated by the officers' observations during one of the controlled buys. The affidavit contained detailed descriptions of two controlled purchases of cocaine from defendant at the premises to be searched in close temporal proximity to the date of the affidavit. The items purchased from defendant by the CI tested positive for cocaine. Under all these circumstances, even with the false statement regarding defendant's prior record excised, the affidavit contained sufficient probable cause. Therefore, defendant's motion to suppress was properly denied.
Defendant further contends that the judge mistakenly exercised his discretion and denied his motion to withdraw his guilty plea prior to sentencing. He argues before us, as he did before the motion judge, that he was "under stress and emotional[ly] upset" when he pled guilty such that his plea was "involuntary and unintelligent." Although it is unclear whether there were any sworn factual statements supplied to the judge at the time of the motion that would support this assertion, we discern from the transcript of the proceeding that defendant claimed he had "some physical difficulties for which he took medication" for several months prior to pleading guilty.
In considering the motion, the judge noted that defendant appeared on the day of his trial "seriously under the influence of alcohol." The judge further noted, "[Defendant] was detained and he chose to enter a guilty plea and not go to trial and [he] did that while he was incarcerated[,] sober, not on drugs, not on any medication . . . but knowing full well what he was doing." Through counsel, defendant acknowledged he was completely sober on the day he actually pled guilty and had otherwise entered "a knowing . . . and a voluntary plea of guilty to the charge."
"[A] guilty plea voluntarily entered may not be withdrawn except pursuant to leave granted in the exercise of the trial judge's discretion." State v. Huntley, 129 N.J. Super. 13, 16 (App. Div.), certif. denied, 66 N.J. 312 (1974). When a defendant moves prior to sentencing to withdraw a guilty plea, our courts have generally exercised their discretion liberally to permit withdrawal. State v. Smullen, 118 N.J. 408, 416 (1990) (citing State v. Deutsch, 34 N.J. 190, 198 (1961)). However, "[l]iberality in exercising discretion does not mean an abdication of all discretion." Smullen, supra, 118 N.J. at 416 (quoting Huntley, supra, 129 N.J. Super. at 17). We will reverse a decision to deny a motion to withdraw a previously entered guilty plea only if the trial judge has mistakenly exercised his discretion. "[T]he measure of what constitutes
[a] fair and just reason for withdrawal must be reposed in the sound confidence of the court." Smullen, supra, 118 N.J. at 417.
Here, defendant failed to "present some plausible basis for his request." Huntley, supra, 129 N.J. Super. at 17. Defendant's bald assertion "that his impairment at the time of the entry of the plea was patent" lacks any factual support whatsoever and is belied by the actual transcript of the proceedings. We see no reason to conclude that the motion judge mistakenly exercised his discretion in denying defendant's motion to withdraw his guilty plea.