July 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAKESHA P. JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-06-0834.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 8, 2008
Before Judges Parker and Gilroy.
Defendant Lakesha Jones appeals from a judgment of conviction entered on December 16, 2005 after she pled guilty to one count of first degree armed robbery with bodily injury, N.J.S.A. 2C:15-1a(1) (Count One); four counts of first degree armed robbery, N.J.S.A. 2C:15-1a (Counts Two, Six, Seven and Eight); three counts of second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Three, Four and Nine); two counts of third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5 (Counts Five and Twelve); two counts of second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Ten and Eleven); three counts of second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Three, Four and Nine); and two counts of third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5 (Counts Five and Twelve). After the appropriate mergers, defendant was sentenced on each of the first degree offenses to concurrent terms of twelve years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and four years on each of the third degree offenses concurrent with each other and the first degree sentences for an aggregate term of twelve years subject to 85% parole ineligibility. We affirm.
These charges arose from defendant's participation, with four co-defendants, in the armed robberies of two massage parlors, one in Highland Park and the other in East Brunswick on January 16, 2003. Defendant joined in the co-defendants' motion to suppress the physical evidence. After three days of evidentiary hearings, the suppression motions were denied in their entirety. Defendant then entered a plea agreement subjecting her to a maximum sentence of fifteen years. The agreement stated that "defendant is free to argue for a ten-year sentence."
During the plea colloquy on November 29, 2005, defendant testified that she was entering the plea "freely and willingly." Defendant's counsel questioned her in great detail about both of the robberies and defendant acknowledged that she was with the co-defendants when they entered the massage parlors. She identified the driver of the get-away vehicle; acknowledged that she was "a little intoxicated" on the day of the offenses; and identified the co-defendants who had the guns in each of the robberies. Defendant testified that she knew a robbery was going to occur, and gave details of what happened during the robberies, including that the victims were duct taped during the Highland Park robbery. The trial court further questioned defendant with respect to her involvement in the crimes.
At one point during the colloquy, defense counsel stated, "For the record, I notice you are upset, you are about to cry? Are you doing this voluntarily?" Defendant responded, "Yes." The court then advised defendant that it could not accept her plea "unless I hear from you, in your own words, and I'm satisfied that you did participate in the armed robberies, as alleged in this [i]ndictment." Defendant again responded, "Yes," and indicated that, although she did not take anything from the victims herself, she helped the others commit the robberies.
The court emphasized to defendant that "if you have any doubts about your plea of guilty, or your decision to plead guilty, you have a right to go to trial, and let a jury decide whether or not the State can prove your guilt, beyond a reasonable doubt. You understand that?" Defendant responded, "Yes." The court then advised defendant a second time that she did not have to plead guilty and that she could go to trial. This time, the court added, "But, of course, if you go to trial, you would be facing a significantly longer prison term, if you were convicted. You understand?" Defendant responded, "Yes." The court further asked defendant if she understood that she would be subject to the No Early Release Act and, again, she indicated that she understood.
The court then found that defendant understood her rights and the nature of the plea agreement, that she entered the plea freely and voluntarily, and that she had given an adequate factual basis for the plea.
At sentencing, when defendant's motion to withdraw the plea was argued, her counsel indicated that she was "upset" by an inaccuracy in the presentence report (PSR) indicating that she had been found guilty of all charges after a trial in Bergen County, when in fact, she had been acquitted on several counts. Defense counsel stated that defendant was concerned that the inaccuracy could affect her sentence here. Defense counsel further indicated that although defendant testified that she entered the plea voluntarily, "she was upset, she was crying . . . . [and] she seemed to be something less than fully enthusiastic about entering a plea but I don't know that that is a requirement for a plea."
Defendant then had the following exchange with the court prior to sentencing:
THE DEFENDANT: Well, the reason why I wanted to withdraw my plea is for the simple fact that I know I didn't do the crime and I know that I'm not guilty and I feel as though . . . I was forced into making [sic] a plea offer so I just, I just don't want, I just don't want to plead out to something that I didn't do.
THE COURT: So, under oath you lied in this Court about your guilt?
THE DEFENDANT: Actually I didn't lie. I feel as though I was pressured into taking the plea offer. And I was going with --
THE COURT: Well, that's a different issue, Ms. Jones. I didn't ask you whether you felt pressured or not. But I specifically asked you when you pled guilty . . . whether or not you were, in fact, guilty of these crimes. I asked you questions about these crimes and your guilt and I also asked you questions if you wanted to plead guilty and under oath you told me you were guilty, right?
THE DEFENDANT: Yes.
THE COURT: And you even described how you helped commit these robberies, did you not?
THE DEFENDANT: I was going by the counts that I was told.
THE COURT: You were going by the discovery that you say you never got?
THE DEFENDANT: I never received the discovery. I never received the Grand Jury transcript, your Honor.
THE COURT: But you were able to tell me about some of the details of the armed robberies that you participated in. Even though you weren't there and you were innocent[,] that is what you're telling me.
THE DEFENDANT: Yes, because Darryl Saunders [her attorney] had the counts what I was indicted for. He didn't show me the discovery, he just showed me the counts.
The court then determined that it was satisfied that defendant entered the plea voluntarily and that she was guilty of the crimes contained in the indictment. Defendant then stated:
Since . . . my sentence [in] Bergen County is my only prior conviction. And I didn't receive a fair trial with Bergen County so you sentence[d] me off of Bergen County so that make me have a rap sheet, a rap sheet of robberies on my jacket and robbery is not my jacket. I never committed any robbery. And I just feel if it is possible that you can charge me with a second degree.
The trial court rejected defendant's arguments and proceeded to sentence her.
In this appeal, defendant argues:
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HER PLEA
THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE FOUND AS A RESULT OF A WARRANTLESS SEARCH
EVIDENCE OBTAINED AS A RESULT OF THE ILLEGAL SEARCH SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE
THE SENTENCE IMPOSED BY THE COURT PURSUANT TO THE PLEA AGREEMENT [IS] ILLEGAL
Plaintiff initially contends that the trial court erred in denying her motion to withdraw her plea. She argues that she "did not provide a factual basis in her own words and instead exhibited hesitation, confusion and emotional instability during the plea." She claimed that she was intoxicated at the time of the offenses and did not remember many of the details. She did, nevertheless, identify her co-defendants in each of the two robberies, indicate her role, identified the individual holding the gun in each of the robberies and acknowledged that she knew the intention of the co-defendants when they went to each of the robbery sites.
With respect to defendant's argument that the factual basis was not in her own words, we note that a factual basis for a guilty plea as a result of leading questions is acceptable. State v. Smullen, 118 N.J. 408, 415 (1990); State v. Kane, 335 N.J. Super. 391, 396 (App. Div. 2000). Moreover, a factual basis in conjunction with a written plea agreement signed by defendant in consultation with her attorney further supports an adequate factual basis for the plea. Ibid.
Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a "formidable barrier" which defendant must overcome before he will be allowed to withdraw his plea. Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed. 2d 136 (1977). That is so because "[s]olemn declarations in open court carry a strong presumption of verity." Ibid.; State v. DiFrisco, 137 N.J. 434, 452 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996). When the trial court determines that a guilty plea has been voluntarily entered, "the measure of what constitutes fair and just reason for withdrawal must be reposed in the sound confidence of the [trial] court." State v. Smullen, 118 N.J. 408, 417 (1990); see also, R. 3:21-1. "A guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). Thus, the trial court's denial of defendant's request to withdraw his guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous. Smullen, supra, 118 N.J. at 416. [State v. Simon, 161 N.J. 416, 444 (1999).]
In considering the plea colloquy as a whole, defendant admitted a factual basis for each of the crimes charged -- albeit in response to leading questions. Smullen, supra, 118 N.J. at 415; Kane, supra, 335 N.J. Super. at 396. At sentencing, defendant denied committing the crimes, but offered no plausible defense, such as an alibi. Rather, she claimed that she did not see the Grand Jury transcript. Nevertheless, during the plea colloquy defendant admitted facts of the crime not specifically stated in the indictment, identified the individuals who participated in the robberies with her and the individuals who were in possession of the guns during each of the robberies. She also acknowledged that she was inside the massage parlors during each of the robberies.
We have carefully considered defendant's argument in light of her plea colloquy, the written plea agreement and her statements during sentencing, and we are satisfied that the trial court did not abuse its discretion in denying her motion to withdraw her plea. Simon, supra, 161 N.J. at 444.
In her next two points, defendant argues that the trial court erred in denying her motion to suppress and that the evidence obtained should have been suppressed as "fruit of the poisonous tree." Specifically, defendant objects to the warrantless search of the vehicle owned by her co-defendant, Alnesha Minitee. Defendant argues that she and Minitee were separated from the vehicle when it was searched, thereby requiring the police to obtain a warrant. State v. Eckel, 185 N.J. 523 (2006).
The search of Minitee's vehicle yielded the following items: (1) pages of the classified sections of the Star-Ledger listing area massage parlors with marks next to them indicating the words "no"; (2) four rolls of duct tape and one roll of electrical tape; (3) a videotape of people committing a robbery at a massage parlor in East Brunswick; (4) a brown and white wool hat, a black skull cap, a black wool visor and a black ski mask; (5) a checkbook in the name of Anthony Herns; (6) a Kyocera 2235 cellular telephone; and (7) a piece of paper with handwritten directions on it.
A defendant must have standing to challenge the validity of a search and seizure of evidence. State v. Bruns, 172 N.J. 40, 43 (2002). In Bruns, the defendant sought to suppress evidence seized from a vehicle that was subject to a warrantless stop and search. Id. at 43. The defendant had no connection with the vehicle but the evidence seized from it implicated him in the robbery. Id. at 44-45. The Supreme Court stated:
In order to contest at trial the admission of evidence obtained by a search or seizure, a defendant must first demonstrate that he has standing. Generally speaking, that requires a court to inquire whether defendant has interests that are substantial enough to qualify him as a person aggrieved by the allegedly unlawful search and seizure. [Id. at 46.]
The Court noted that the standing requirement is broader under the New Jersey Constitution, Article I, § 7, than under the Fourth Amendment of the United States Constitution. Ibid. In New Jersey, standing depends upon "whether that defendant has a proprietary, possessory or participatory interest in the place searched or the items seized." Ibid. The Court explained that "in most cases in which the police seize evidence implicating a defendant in a crime that defendant will be able to establish an interest in the property seized or place searched." Id. at 59. The term "participatory" connotes some involvement in the underlying criminal conduct in which the seized evidence is used by the participants to carry out the unlawful activity . . . . It thus provides standing to a person who, challenging the seizure and prosecutorial use of incriminating evidence, had some culpable role, whether as a principal, conspirator, or accomplice in a criminal activity that itself generated the evidence. [State v. Mollica, 114 N.J. 329, 339-40 (1989).]
In short, if the evidence is to be used against a defendant, the defendant has standing to challenge its admissibility. Here, defendant lacks standing to challenge the search of the co-defendant's vehicle. State v. Alston, 88 N.J. 211, 218-19 (1981); State v. De La Paz, 337 N.J. Super. 181, 191-92 (App. Div. 2001). She did not claim a proprietary interest in the items seized, nor was there any indication the State intended to use any of the items seized as evidence against her. Bruns, supra, 172 N.J. at 46. Accordingly, defendant lacks standing to challenge the warrantless search of Minitee's vehicle.
To the extent we understand defendant's "fruit of the poisonous tree" argument, we find it without merit. It appears that defendant is arguing that because the police searched Minitee's vehicle without a warrant, the evidence was illegally obtained and must be suppressed. This argument may well be available to co-defendant Minitee, but is not available to defendant because she had no proprietary or participatory interest in the vehicle or the items seized. Bruns, supra, 172 N.J. at 46; Alston, supra, 88 N.J. at 218-19.
Finally, defendant argues that her sentence was illegal because the court relied upon inaccurate information contained in the PSR indicating that she was convicted of all charges in Bergen County, when, in fact, she was acquitted on several counts. She claims that because the Bergen County conviction and sentence were already subject to appeal and petitions for post-conviction relief, and she was acquitted on some of the counts, it was unnecessarily prejudicial for the trial court to rely upon them.
In sentencing defendant, the trial court merely relied upon the fact that defendant had been previously convicted of certain similar offenses. The court noted defendant's prior involvement in similar robberies in Essex and Bergen Counties, but clearly indicated that it did not believe those crimes represented prior convictions reflecting a criminal history. Rather, the court stated that in its view, "the defendant has virtually no criminal history." The court concluded:
So what we have here then is a fairly young woman who stands before the [c]court convicted of armed robbery and weapons offenses with virtually no criminal history. Fortunately for her and the victims here . . . there was no actual serious harm committed against anyone, . . . so I am satisfied that this [c]court should sentence this defendant to the lower end of the range. She stands before the [c]court facing a term of imprisonment of between ten and twenty years and I think that given her lack of a real criminal history, and given the fact that all of this criminality involved one extensive criminal episode I don't see any basis to sentence her to the maximum term or even to the higher end of the range.
The court considered the appropriate aggravating and mitigating factors and sentenced defendant accordingly. We find no merit in defendant's sentencing argument.
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