On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-09-01403 and 07-09-01411.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2009
Before Judges Lisa and Alvarez.
The State appeals from an order denying its motion to vacate a plea agreement. The State argues that, pursuant to the plea agreement, defendant pled guilty to a charge for which his conduct did not establish culpability, thus rendering the plea agreement illegal and subject to vacation. We disagree with the State, and because defendant has commenced serving his sentence, we lack jurisdiction to consider the appeal and accordingly dismiss the appeal. State v. Veney, 327 N.J. Super. 458, 459 (App. Div. 2000). Further, we find no error and if we had jurisdiction we would affirm.
On the same date, a Middlesex County grand jury returned two indictments against defendant. Indictment No. 07-09-01403 contained eight counts, including count four, third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and count six, third-degree unlawful possession of a handgun without first having obtained a permit to carry it, N.J.S.A. 2C:39-5b. The other indictment, No. 07-09-01411, charged two counts of second-degree possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7b.
On December 20, 2007, defendant and the State entered into a plea agreement, by which defendant would plead guilty to counts four and six of Indictment No. 07-09-01403. In return, the remaining counts of that indictment and both counts of Indictment No. 07-09-01411 would be dismissed,*fn1 and the State would recommend a four-year state prison sentence. At the plea hearing, defendant testified under oath. He acknowledged he was guilty of counts four and six and was pleading guilty for that reason. Referring to the date in the indictment, he was asked: "At that time you unlawfully possessed a weapon, correct?" He answered, "Yes." The prosecutor followed up by asking: "Mr. Baker, on December 22nd when you had the weapon it was a Smith and Wesson nine-millimeter, correct?" Defendant answered, "Yes." The prosecutor then asked: "And you didn't have a carry permit for that at all? So you weren't supposed to have a gun at that point, correct?" Defendant answered, "No." The prosecutor then said, "All right," indicating his satisfaction with the factual basis for the plea. Sentencing was scheduled for March 28, 2008.
Shortly before sentencing, the State made known its intention to file a motion seeking to withdraw from the plea agreement. Judge DeVesa adjourned the sentencing date to allow both parties to file briefs. The State argued in its brief that defendant's factual basis was inadequate because "he failed to tell this Court that he possessed this gun in his house." Thus, the State argued that, because N.J.S.A. 2C:39-6e provides that possession of a firearm in a person's home is exempt from the provisions of N.J.S.A. 2C:35-5b, defendant's conduct did not constitute commission of the crime. The State argued that it made an honest mistake by indicting defendant for violating N.J.S.A. 2C:39-5b and that "the purported plea deal in this case cannot stand, because it contains an illegality."
In the motion proceedings, the prosecutor provided Judge DeVesa with the discovery materials. However, the prosecutor had not obtained and did not provide a copy of the transcript of the grand jury proceedings. The prosecutor made no argument in the trial court that, based upon a deficiency in the grand jury proceedings, count six of Indictment No. 07-09-01403 was subject to dismissal.
In his responding brief, defendant argued that his sworn factual basis was sufficient to meet the elements of the offense. He opposed the State's motion and urged that the matter proceed to sentencing in accordance with the plea agreement.
The matter came before Judge DeVesa on July 17, 2008. The prosecutor argued that, based upon the discovery, which by then had been furnished to the court, defendant's possession of the handgun was limited to the confines of his residence and was therefore not subject to criminal prosecution. Defendant argued that "[h]e didn't plead guilty to possession of a gun inside a house."
Judge DeVesa noted that although the discovery reflected that the possession of the handgun took place within defendant's residence,
[i]t doesn't really address the issue of whether the defendant possessed the gun outside the home earlier than that. There is clearly nothing in the plea colloquy where the defendant acknowledges that he possessed the gun only in the home. And the Court does not ordinarily go behind the plea of guilty in the colloquy or the factual basis that's set forth and examine the discovery after the fact to determine whether or not the plea can be accepted. I suspect that in many, many cases courts are asked to accept plea agreements to charges and with factual bases that are inconsistent with what exists in discovery. What exists in discovery represents a summary of the State's allegations, but obviously the validity of a plea has to do with the sworn testimony that's provided in court.
The judge was of the view that the plea colloquy controlled and that defendant's sworn factual basis that he possessed a gun illegally without a permit to carry on the date referenced in the indictment satisfied the elements of the crime. No one asked defendant at the plea hearing where he possessed the handgun, and he never said he possessed it only in his home. The judge noted ...