June 27, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ABDUL AZZIZ SHABAZZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0480.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2008
Before Judges Yannotti and LeWinn.
In April 2005, defendant Abdul Azziz Shabazz was indicted, along with co-defendant Kimberly Sharee Brown, for the following offenses: first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1) (count one); second-degree possession of cocaine with intent to distribute within five hundred feet of certain public facilities, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-7.1 (count two); second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1) and N.J.S.A. 2C:5-2 (count three); second-degree eluding, N.J.S.A. 2C:29-2(b)(count seven); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count eight).*fn1
On August 2, 2005, defendant filed four pre-trial motions:
(1) to suppress evidence seized in a warrantless search of his car; (2) to disclose the identity of a confidential informant and the police surveillance location; (3) for in camera inspection of internal affairs records of the lead detective involved in his case; and (4) for severance from his co-defendant pursuant to Rule 3:15-1(b). On August 23, 2005, defendant served a notice of entrapment defense.
On September 16, 2005, notwithstanding his still-pending motions, defendant entered into a negotiated plea agreement. Defendant pled guilty to first-degree possession of cocaine with intent to distribute under count one of the indictment. Pursuant to the agreement, defendant was to be sentenced on count one as though it were a second-degree offense, with a recommended term of six years and a three-year parole ineligibility period; that sentence was to run concurrent to any sentence defendant might receive on federal charges for a violation of his federally supervised probation. At the plea hearing, defendant was represented by counsel and advised the court that he was satisfied with his attorney's services and had no questions.
In October 2005, defendant filed a pro se motion for a writ of mandamus to have his pre-trial motions heard. However, it appears that this motion was never properly filed or served.
On December 14, 2005, defendant was sentenced in accordance with the plea agreement. At the outset of the sentencing hearing, defendant, his attorney and the judge engaged in extensive colloquy as to whether defendant's sentence would be concurrent or consecutive to his federal probation violation, because of conflicting information defendant had received. At no time did defendant raise a question about the status of his pre-trial motions.
On January 25, 2006, the trial judge entered four orders denying each of defendant's pre-trial motions. On that same date, the trial judge sent a letter to the Criminal Division Manager explaining his orders. The judge's letter reflected a conversation between the judge and defendant's trial attorney, on the previous day, in which defense counsel "acknowledged that he had withdrawn all motions . . . at the time of the plea, on September 16, 2005."
On January 31, 2006, defendant received a letter from the Criminal Division Manager, enclosing both the trial judge's letter of January 25, 2006, as well as a letter from defense counsel, dated January 27, 2006, addressed to the Criminal Division Manager, stating:
Please be advised that we do not wish to proceed with any motions in the above captioned matter. The [trial judge] afforded [us] every opportunity to proceed with pretrial motions and we voluntarily elected to plead guilty and waive any pretrial motions. Consequently, please ignore my client's request to have additional legal argument on this case and I sincerely apologize for any inconvenience this has been to you and [trial judge].
Defendant now appeals, and raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS, AS DEFENDANT'S GUILTY PLEA DID NOT CONSTITUTE A WAIVER OF HIS RIGHT TO CHALLENGE THE WARRANTLESS SEARCH OF HIS CAR AS A VIOLATION OF HIS RIGHTS UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 7, OF THE NEW JERSEY CONSTITUTION.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO COMPEL DISCLOSURE OF THE CONFIDENTIAL INFORMANT AND SURVEILLANCE POINT AND MOTION FOR IN CAMERA INSPECTION OF DOCUMENTS, AS THESE MOTIONS WERE INTEGRALLY RELATED TO THE MOTION TO SUPPRESS AND SHOULD HAVE SURVIVED DEFENDANT'S GUILTY PLEA.
We consider these two arguments together as defendant acknowledges that they are "integrally" interrelated. Thus, the issue central to all four motions is the question of waiver.
The plea form defendant executed on September 16, 2005, contains no provision for preservation of any of defendant's pre-trial motions. Rule 3:9-3(f) 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."
Defendant's failure to invoke the protection of this rule at the time of his guilty plea, in order to preserve his motions to disclose the identity of the confidential informant and the surveillance location and for an in camera inspection of certain internal affairs records, constitutes a bar to the relief he now seeks on appeal. State v. Means, 191 N.J. 610, 626 (2007)("[A] knowing and voluntary guilty plea operates as a waiver of all claimed deficiencies save for those preserved by defendant or by operation of law.").
With respect to defendant's motion to suppress, Rule 3:5-7(d) provides that the denial of such a motion "may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty." However, this rule clearly contemplates a denial resulting from a hearing at which evidence germane to the suppression motion was presented. Here, the record clearly established that defendant's counsel had withdrawn the motion to suppress, and that was the basis on which the judge denied the motion.
Defendant's counsel clearly understood the waivers implicated by defendant's voluntary guilty plea. Counsel's letter to the trial judge unambiguously states an intention to "waive any pretrial motions."
Defendant is free to pursue any claims he deems appropriate regarding his counsel's performance, by way of a petition for post conviction relief pursuant to Rules 3:22-1 to -12.