May 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-04-0669.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2008
Before Judges Sapp-Peterson and Messano.
Defendant J.P. appeals from the judgment of conviction and sentence imposed after he pled guilty to a single-count indictment, as amended, charging him with attempted neglect of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 9:6-3. He raises the following points on appeal for our consideration:
[THE] TRIAL COURT COMMITTED PLAIN ERROR IN DENYING [A] MOTION TO DISMISS [THE] INDICTMENT BASED ON LACK OF EVIDENCE AND ABSENCE OF ANY VICTIM.
[THE] TRIAL COURT COMMITTED PLAIN ERROR IN DENYING [THE] MOTION TO DISMISS [THE] INDICTMENT BASED ON THE STATE'S IMPERMISSIBL[E] INTRODUCE[TION] OF EVIDENCE OF PRIOR CRIMES AT THE GRAND JURY PROCEEDING.
[THE] TRIAL COURT COMMITTED PLAIN ERROR IN DENYING [THE] MOTION TO SUPPRESS EVIDENCE SEIZED BY POLICE DURING [A] SEARCH OF DEFENDANT'S APARTMENT, SINCE THE SEARCH WARRANT WAS ERRONEOUSLY ISSUED, PREDICATED ON INSUFFICIENT PROBABLE CAUSE.
[THE] TRIAL COURT COMMITTED PLAIN ERROR IN DENYING [THE] MOTION TO SUPPRESS STATEMENTS ELICITED BY POLICE DURING CUSTODIAL INTERROGATION OF DEFENDANT WHEN THEY FAILED TO ADVISE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS UNDER MIRANDA V. ARIZONA.*fn1
THE TRIAL COURT COMMITTED PLAIN ERROR IN TAKING DEFENDANT'S PLEA PREDICATED ON AN INSUFFICIENT FACTUAL PREDICATE.
DEFENDANT'S SENTENCE WAS ILLEGAL.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
We rely upon the facts adduced at a pre-trial hearing on defendant's motions to suppress his statements made to law enforcement officers and to suppress physical evidence seized at his residence pursuant to a search warrant. When necessary, we incorporate those facts contained in the affidavit filed in support of the warrant. Although the search was conducted pursuant to a warrant, the motion judge permitted testimony and conducted a full plenary hearing on both issues.
Detective Eric Baum of the Bergen County Prosecutor's Office Sex Crimes and Child Abuse Unit was the affiant on the search warrant and he testified that on March 24, 1999, he received a call from Lieutenant August Greiner of the Leonia Police Department. Greiner reported that a citizen had found a flyer in town that contained a solicitation to young boys, ages fourteen to sixteen, to pose for photographs. Baum secured a copy of the flyer, which we quote in its entirety.
WANTED BOYS 14-16 YEARS OF AGE TO WORK PART TIME FOR AN AMATEUR PHOTOGRAPHER IF YOU ARE BETWEEN THE AGES OF FOURTEEN AND SIXTEN YEARS OLD AND WOULD LIKE TO WORK PART TIME AT A GREAT JOB THAT PAYS VERY WELL THEN THIS MAY BE THE JOB FOR YOU.
I AM AN AMATURE (sic) PHOTOGRAPHER LOOKING FOR INDIVIDUALS TO POSE AND MODEL PART TIME BOTH INDOORS AND OUTDOORS AT SUCH PLACES LIKE STATE PARKS, LAKES, BEACHES, AND MANY OTHER SCENIC LOCTIONS AROUND THE STATE.
YOU MUST BE MONEY MOTIVATED AND FUN WITH A GOOD PERSONALITY. IF YOU'R (sic) NOT CAMERA SHY AND HARD WORKING AND YOU LOVE SPENDING MONEY THEN THIS IS THE PERFECT JOB FOR YOU. DON'T DELAY CALL OR WRITE TODAY FOR MORE INFORMATION. THERE ARE ONLY A FEW SPOTS LEFT. TRANSPORTATION AVAILABLE IF YOU NEED IT.
FOR IMMEDIATE CONSIDERATION FOR THE REMAINING POSITIONS THAT ARE STILL AVAILABLE CALL OR WRITE TODAY. (201) 967-7064 AFTER 6:00 p.m.
PLEASE LEAVE YOUR NAME, ADDRESS, AGE, NUMBER AND MESSAGE.
WRITE TO J.F.P. LIMITED 257 MAPLE AVE ORADELL, N.J. 07649 PLEASE GIVE YOUR NAME, ADDRESS, AGE, AND INCLUDE A CLEAR COLOR AND CURRENT PHOTO OF YOURSELF.
EAST COAST MODELS
Baum reviewed the addresses on file of those prior offenders required to register under Megan's Law, N.J.S.A. 2C:7-1 to -11. He was able to match the address on the flyer with the one defendant was using in his registration with the Prosecutor's Office. He examined defendant's Megan's Law file and advised Greiner of defendant's name and the fact that he was a registered sex offender.
Baum discovered that the citizen sent a copy of the flyer to his son-in-law in Rhode Island, John Randolph.*fn2 Baum interviewed Randolph by telephone and found out that Randolph had called the phone number on the flyer and spoke to an unnamed male. Posing as a teenager, Randolph inquired about the job and was told by the individual that he was an amateur photographer looking to take outdoor photographs. The individual told Randolph that he would supply all the clothing and would "pay $100 to $150 to photograph him dressed, $150 to $250 to photograph him without a shirt and would pay $500 for naked pictures." Randolph said the man "told him that the nude photographs could not be of a sexually suggestive nature."
Baum and another detective placed five phone calls to the number on the flyer over the next several days, left messages posing as a young boy, "Dougie," but none of the calls were returned. Baum did not recite these unsuccessful attempts in the affidavit supporting the search warrant.
Baum obtained defendant's computerized criminal history and included it in the affidavit. It revealed defendant's address to be "257 Maple Ave., Oradell, N.J. 07649." It also disclosed that defendant had been arrested and convicted of simple assault and "resisting a [p]olice [o]fficer" in 1983, and had been arrested in 1986, and found guilty of "[s]exual assault, endangering the welfare of a child/family offense and attempted sexual assault." The record check also revealed that defendant had been sentenced to the Adult Diagnostic and Treatment Center at Avenel and released on December 31, 1990. Defendant was also arrested subsequently in 1995 for possession of marijuana and drug paraphernalia, and was apparently found guilty and fined for those offenses. Baum's affidavit also noted that defendant was "a registered sex offender . . . and has been classified as a Tier 2 offender." Baum recounted that defendant's prior sexual conviction "involved . . . photographing juveniles and supplying them with money and engaging in sexual activities with these juveniles at his residence at 257 Maple Ave., Oradell, N.J."
The search warrant, issued on March 30, 1999, authorized the search of the premises at 257 Maple Avenue, Oradell, as well as defendant's person, and his vehicle. It authorized the seizure of "camera's (sic) other photography equipment used to take photographs, film, pictures/photographs" and "other instrumentalities and paraphernalia used . . . in furtherance of the commission of a crime or which are evidence of the commission of a crime . . . to wit: Endangering the Welfare of a Child . . . ."
Baum testified that he and other officers executed the search warrant of defendant's premises. They seized "hundreds of photographs," some of which he believed pictured males under the "age of 16 engaging in sexual acts." He acknowledged that he also seized photos that were labeled, "all models over the age of 18." Baum also admitted that his subsequent investigation failed to reveal that any of the individuals depicted in the photographs "was under the age of 16." Other documents seized from defendant's apartment also failed to relate specifically to the flyer, though some were apparently "price lists" indicating the prices paid for engaging in sexual acts. Dozens of videotapes of apparently sexually explicit material and a diary were also seized.*fn3
The assistant prosecutor characterized the Miranda issues as centered upon "a few statements" defendant allegedly made "during the execution of the search warrant." Baum testified that he arrived at defendant's residence at approximately 6:25 p.m. to execute the warrant with other officers. Defendant, who Baum recognized, answered the door. Baum told defendant he was not under arrest, and that no criminal charges had been "signed against him." Baum nevertheless told defendant that "[h]e had the right not to speak with me or to even talk to me at all with respect to what we were doing or answer any of my questions." Defendant asked Baum what the warrant was for, and Baum told him it was about the flyer and showed defendant a copy.
Defendant "acknowledged that that was a flyer belonging to him," and that "he did post that flyer in several towns, including Leonia . . . several months ago." Defendant claimed he "was not doing anything illegal," and acknowledged having several photographs of "naked males." Defendant told Baum he was "absolutely positive" the men in the photographs were over the age of eighteen. Defendant also acknowledged receiving two calls in response to the flyer, one "he traced back to a number in Rhode Island," and another "from an individual by the name of Doug."
The entire search and the conversation that accompanied it took place in a small bedroom on the bottom floor of the residence. After consulting members of his Office, Baum told defendant to accompany him back to the Oradell police department, where he subsequently placed him under arrest. Baum did not handcuff defendant at any time, though he did not recall whether any of the other officers did. Baum never read defendant his Miranda rights because defendant declined Baum's offer to talk to him further. Baum could not testify as to whether any other officer ever read defendant his Miranda rights.
The motion judge concluded that defendant's statements were voluntarily made to Baum and that there was "no interrogation." Although he also reasoned that it would have been appropriate for the officers to have read defendant his Miranda rights, the judge did not expressly conclude that defendant was in custody at the time. Rather, he determined the statements were "all volunteered" by defendant and he denied the motion to suppress.
With respect to the search warrant, the motion judge concluded that "based upon that affidavit," there "[was] probable cause that  a crime had been or [was] being committed[.]" The judge also concluded that the warrant was not overly broad, and the items seized did not exceed the scope of the warrant. He also denied that portion of defendant's motion.
On November 29, 2004, defendant pled guilty to the indictment as amended from attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and 2C:24-4(a), to attempted child abuse or neglect, a fourth-degree offense. The State agreed to a maximum sentence of eighteen months imprisonment, and also agreed that the sentence would be served concurrently to defendant's federal sentence.*fn4 The State further agreed that "neither Megan's Law nor Avenel would apply to th[e] matter."
Under oath, defendant answered affirmatively when asked by his attorney if he had circulated the flyers "in an attempt to get 14 to 16 year old boys to pose in a provocative way." When asked if that was an attempt "to endanger the welfare of those children," defendant responded, "Yes, sir." When the judge asked defendant what he was doing in court that day, defendant responded, "I'm pleading guilty to a charge of attempt[ed] neglect of a minor." Defendant also acknowledged that he understood the plea forms, had reviewed them after sufficient time with his attorney, understood he was waiving certain rights by pleading guilty, was satisfied with his attorney's representation, and was pleading guilty "freely and voluntarily," and with "a full understanding [of] what [he was] doing." On March 18, 2005, defendant was sentenced in accordance with the plea agreement. This appeal ensued.
The State argues that because defendant entered his guilty plea unconditionally, he waived his right to appeal any of the pre-trial rulings now raised in Points I, II, and IV. We agree.
Rule 3:9-3(f) specifically provides
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea. Nothing in this rule shall be construed as limiting the right of appeal provided for in R. 3:5-7(d).
Our Supreme Court has definitively held that "a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea." State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997)). The ability to challenge the State's denial of the privilege against compulsory self-incrimination is waived by the entry of a guilty plea. Ibid. An exception to this general rule exists if defendant avails himself of the conditional plea option offered by Rule 3:9-3(f). Id. at 471.
Defendant entered an unconditional guilty plea and did not reserve the right to challenge the motion judge's ruling regarding the admissibility of his statements to the police. Therefore, he has waived the ability to raise the issue on appeal, and we do not consider the argument raised in Point IV of defendant's brief.
The issues he raises in Points I and II must meet a similar fate. A challenge brought to the indictment is governed by Rules 3:10-2(c) and (d), and rulings made by the court may be specifically preserved for appeal in accordance with a conditional guilty plea entered under Rule 3:9-3(f). R. 3:10-7. We have previously held that appellate challenges to "non-jurisdictional defects in grand jury proceedings" are similarly waived by entry of an unconditional guilty plea. State v. Marolda, 394 N.J. Super. 430, 435 (App. Div.), certif. denied, 192 N.J. 482 (2007). We, therefore, refuse to consider Points I and II on appeal.
One exception to the general rule of waiver includes an appeal from the "denial of a Fourth Amendment-based motion to suppress evidence after a conviction whether based on a guilty plea or [after trial]." Knight, supra, 183 N.J. at 471. This exception is explicitly recognized in Rule 3:5-7(d). We therefore turn to the issue raised by defendant in Point III, specifically that the "search warrant was erroneously issued, predicated on insufficient probable cause."*fn5
Defendant argues the affidavit that supported the warrant "did not indicate any observations by the officers or any witnesses that established [he] had committed any crime." He contends further that "[t]he judge was basically asked to simply presume because [d]efendant was a Tier 2 [o]ffender, and there was his telephone number and address on the flyer," that probable cause existed to search defendant's home.
The State argues correctly that the motion judge had the benefit not only of the contents of the affidavit, but also the testimony of Baum at the hearing. To the extent his findings were influenced by the opportunity to consider that live testimony, we are required to give deference to them as long as they are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243-44 (2007).
It is axiomatic that a search warrant must be supported by probable cause that a crime has been, or is being, committed, and that evidence of that crime may be found at the place requested to be searched. State v. Evers, 175 N.J. 355, 381 (2003). Probable cause can be founded on less evidence than necessary to convict, and it "exists if at the time of the police action there is 'a well grounded suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2004) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). We consider the "totality of the circumstances" in determining whether probable cause exists. Schneider v. Simonini, 163 N.J. 336, 361 (2000). Lastly, because a search warrant bears the presumption of validity, and defendant bears the substantial burden of demonstrating its invalidity, we accord substantial deference "to the determination of the judge who has made a finding of probable cause to issue a search warrant." Evers, supra, 175 N.J. at 381.
The affidavit sets forth the experience and training of its affiant, Baum, that included particularized training and experience in the investigation and detection of sexual crimes and crimes committed against minors. See id. at 382 (considering the law-enforcement affiant's prior training and experience as relevant to the probable cause determination regarding a search warrant issued for the seizure of a computer thought to contain child pornography). It included the contents of the flyer itself, as well as the contents of the telephonic interview Baum conducted with Randolph regarding his phone contact with defendant. The affidavit further set forth defendant's criminal history which included a conviction for a similar offense involving the "photographing" of "juveniles" while "supplying them with money and engaging in sexual activities" with them at defendant's home. "[A] suspect's [prior] criminal history is also germane" to the determination of whether probable cause existed. State v. Jones, 179 N.J. 377, 391 (2004). We conclude that there was sufficient probable cause for the issuance of the search warrant in this case, and we find no other basis for reversal.
Defendant next argues that his conviction should be reversed because the judge failed to elicit a sufficient factual basis upon which to accept the guilty plea. He argues that his allocution was nothing more than a "pro forma recitation of the language of the statute." He notes that in his pre-sentence investigation report, he told probation that he did "not believe that he has broken any law and does not believe that his behavior deviates from the norm set by society."
Defendant's subjective belief about the propriety of his conduct is irrelevant to the inquiry. The sole issue presented is whether the factual basis he provided in entering his guilty plea was sufficient to establish the commission of the crime to which he pled guilty.
We view the situation presented as quite similar to the one faced by the Supreme Court in State v. Smullen, 118 N.J. 408 (1990). There, the Court found defendant's factual basis to be adequate, despite the fact that it was elicited through leading questions by the judge that were essentially responded to in the affirmative by one-word answers from the defendant. Id. at 412-13. The Court was satisfied that "taken in the context of the entire plea colloquy - the rather extensive discussion between the court and defendant concerning the written plea agreement that defendant signed and defendant's consultations with his attorney - there was an adequate factual basis for the plea." Id. at 415. The Court further noted that given the particular nature of the crime, criminal sexual contact of a child, the use of leading questions by the court was necessary to demonstrate that the defendant was admitting a "distasteful reality that makes the charged conduct criminal." Ibid.
So too, here we are satisfied that defendant's factual basis, when considered in the entire context of the plea, was sufficient and does not require reversal. Defendant acknowledged that he had utilized the flyer in an attempt to have children pose for his photographs "in a provocative way," and that in doing so he was attempting to endanger their welfare. He candidly acknowledged the specific crime that he was pleading guilty to, and, during a lengthy colloquy with the judge admitted he had reviewed all the plea forms with his attorney, understood the charge, was freely waiving his rights and was guilty of the crime. In short, we find no merit to the claim.
Defendant's last argument is that his sentence was illegal, though we profess some difficulty in understanding the exact claim. Defendant seems to argue that the judge was "'clearly mistaken'" in imposing the eighteen-month sentence, or that he "ignored that imprisonment was likely to cause serious hardship."
We have reviewed the transcript of defendant's sentencing hearing. We find no merit to the claims raised and they require no further discussion in this opinion. R. 2:11-3(e)(2).