On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment Nos. 06-03-0227 and 06-04-0261.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judge Parrillo and Messano.
Defendant Jamie Hayes appeals from the denial of his motion to suppress evidence and the subsequent denial of his motion to withdraw his guilty plea. He raises the following points for our consideration:
POINT I [POLICE OFFICER PAUL] SKILL'S TESTIMONY WAS NOT CREDIBLE AND THE DRUGS WERE NOT SEEN IN "PLAIN VIEW" NOR WAS THERE PROBABLE CAUSE FOR THE SEIZURE OF DEFENDANT. THE SEARCH AND SEIZURE VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS AND THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
POINT II DEFENDANT SHOULD HAVE BEEN PERMITTED TO RETRACT HIS PLEA OF GUILTY.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant was charged by the Cape May County grand jury in Indictment 06-04-0261-I with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); and second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 and 2C:35-5a(1). Defendant's first point on appeal challenges the judge's ruling that followed the October 20, 2006 evidentiary hearing held on defendant's motion to suppress evidence supporting this indictment.
Defendant had also previously been indicted by the grand jury in Indictment 06-03-0227-I and charged with two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3). After his motion to suppress was denied with respect to Indictment 06-04-0261-I, defendant entered guilty pleas to counts in both indictments. His second point on appeal challenges the motion judge's denial of his pro se request to retract those guilty pleas made at the time of sentencing.
The State called North Wildwood police officer Paul Skill as its sole witness at the hearing on the motion to suppress. Skill was on patrol in his police car at 10:54 p.m. on the night in question when he noticed a vehicle behind him without its headlights on. Skill pulled his car over, let the other vehicle pass, and activated his overhead emergency lights. The other car eventually pulled over into the entrance of an assisted living complex for the elderly, Marina Bay Towers. Skill approached the vehicle which was driven by defendant.
When he told defendant the reason for the stop, defendant put on his headlights and stated that "he didn't need any problems." Skill asked him what he meant, and defendant told him that his license had been suspended. Skill then recalled that he had issued a prior summons to defendant, approximately one month earlier, for driving with a suspended license. Skill asked defendant why he had turned into Marina Bay Towers, and defendant responded that he was delivering a package to someone there. Defendant could not recall the last name of the person, nor what unit he lived in. When Skill asked to see the package, defendant showed him an empty plastic bag.
Skill told defendant he would issue him another summons and retreated to his police vehicle. The officer opened and closed the door of his police car hoping defendant would believe he entered the police cruiser. Instead Skill circled around the back of his car and approached defendant's passenger side door. From there, Skill saw defendant take a plastic bag that contained suspected crack cocaine from his vest pocket and place it in his lap. As he continued to look in the side view mirror back toward the police car, defendant took the cocaine from his lap and placed it in his sock. Skill then told ...