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State v. Searles

May 2, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN R. SEARLES, JR., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Gloucester County, No. 06-12-1013-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2008

Before Judges Wefing and Parker.

Defendant appeals pursuant to leave granted from a trial court order rejecting his plea agreement and returning the matter to the regular criminal list. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was charged in Gloucester County under Indictment 06-12-01013 with one count of possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10(a)(1), a crime of the third degree, and shoplifting, in violation of N.J.S.A. 2C:20-11, a crime of the third degree. In June 2007 defendant entered a negotiated plea of guilty. We have not been provided with a transcript of the plea proceedings, but the parties do not appear to dispute anything that occurred in connection with those plea proceedings. The plea form executed by defendant, his attorney and the prosecutor contains the following statement in response to the direction to specify any sentence the prosecutor had agreed to recommend.

Camden charges may be consolidated for sentencing in Drug Court on Gloucester County Ind 06-12-01013 up to 5 yrs probation in Drug Court, concurrent to Camden matters, follow drug court protocol complete treatment successfully (IOP)

Alternative sentence: 5 yrs NJSP Flat c/s consecutive to Camden charges (alt 4 yrs NJSP) restitution open on dismissed count 2 of 06-12-01013

Defendant returned before the Gloucester County trial court on October 30, 2007. We know from the transcript of that date that defendant had, in the interim, been incarcerated in Camden County. The record does not indicate the nature of the Camden County charges or when he was taken into custody in Camden County.

The prosecutor informed the trial court that there was an issue as to whether defendant had established a residence in Gloucester County, a prerequisite for admission into Gloucester County's Drug Court program. The trial court heard from a Gloucester County probation officer that he had, on four separate occasions, visited the Gloucester County address defendant had provided, 441 Salem Avenue in Woodbury, and had found no one there. On each occasion the probation officer left his business card with a request that he be called, but he never received a responding telephone call. The probation officer also informed the trial court that he had contacted defendant's mother who said that she understood that defendant was going to reside at the Woodbury address with his fiancée but that "it wasn't for sure."

In response, defendant presented Lorraine Dolson. She told the trial court that defendant was a good friend of hers and of her brother. She said she lived at that address, a one-bedroom apartment, with her mother and father. She said her brother had lived there as well but had moved out. There was no telephone in the apartment; Ms. Dolson told the court she had a cell phone for which she was planning to have additional minutes installed. Defendant's attorney said defendant was planning to install a land-line telephone, a requirement for those participating in drug court in order for the probation officer to verify the location of the call.

The trial court concluded these proceedings by stating it was not satisfied that defendant had a permanent residence in Gloucester County. It noted the additional problems that would be posed if defendant's Salem Avenue address proved to be illusory. Based upon that assessment, the trial court rejected the plea bargain.

On appeal, defendant raised the following argument:

THE TRIAL COURT ERRONEOUSLY EXERCISED ITS DISCRETION IN REJECTING DEFENDANT'S PLEA AGREEMENT. THIS COURT MUST REVERSE AND ...


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