On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-05-01101.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2008
Before Judges Sabatino and Alvarez.
Defendant, Robert Frazier, appeals the denial of his motion to withdraw a guilty plea prior to sentence. After consideration of his claims, for the reasons set forth below, we affirm.
Defendant was indicted in Essex County for second-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(2)*fn1 (count one); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count three); third-degree possession with intent to distribute a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); and second-degree possession with intent to distribute a controlled dangerous substance within 500 feet of a public facility, N.J.S.A. 2C:35-7.1 (count five). He was also charged with the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2. In accord with the terms of the plea, defendant was sentenced on the third-degree drug possession count to a three-year term of probation and appropriate fines and penalties.
The charges result from the search of defendant's Newark apartment on December 23, 2004, when officers from the Gang Investigation Unit executed a search warrant. The State alleges that upon entry, the officers observed defendant and a female in a front bedroom. A bag of crack cocaine, weighing approximately 46.29 grams, was tossed out of a window in the apartment and was subsequently recovered by the investigating officers.
Defendant contends on appeal:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BEFORE SENTENC[ING].
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING THE NEGOTIATION AND ALLOCUTION OF HIS GUILTY PLEA.
Prior to defendant's entry of a guilty plea, his trial attorney filed a notice of motion to compel the state to disclose the identity of the confidential informant who provided the information which resulted in the issuance of the search warrant. The trial attorney also filed a motion to suppress. Defendant faced a potential three years' parole ineligibility. See N.J.S.A. 2C:35-7. Whether because of the pendency of the motions, or for some other reason, the state offered defendant a three-year term of probation in exchange for a guilty plea to mere third-degree drug possession. This plea offer was highly favorable, not just because the charges included a school zone possession with intent to distribute count, but because of defendant's prior criminal history. Because he was sentenced for five separate burglaries in one proceeding on August 6, 1982, and was placed on probation in 2001 for possession of cocaine if convicted of the charges, he was eligible for a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a).
During the comprehensive plea colloquy, defendant testified that he wanted to plead guilty, and had read and understood the plea form. The judge asked him on several occasions if he knew the crime to which he was pleading guilty was a third-degree drug possession charge, and asked defendant repeatedly if he understood the consequences of the entry of a guilty plea to that offense. Defendant consistently answered "yes" to these questions. Defendant said he was satisfied with the ...