February 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
RASAN BAKER, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 that the prosecutor was satisfied with the factual basis at the time of the plea, as was the court.
Having determined that he was not required to vacate the plea agreement because it was illegal, the judge then considered whether the plea agreement should be rejected because it was not in the interest of justice. Based upon his extensive experience in criminal cases, Judge DeVesa said: "I don't think that this plea agreement is so far beyond the norm, so to speak, or that a four-year sentence is so lenient of a proposed recommendation for sentence that the Court will simply reject it based upon the interest of justice." Indeed, in the colloquy at that hearing, it was noted that the prosecutor's offer to renegotiate the case if the plea agreement were vacated was to seek a five-year sentence with a five-year period of parole ineligibility.
When the judge concluded his statement of reasons for denying the motion, he said, "I would like to move ahead at this time, unless counsel are not prepared to sentence the defendant." Defense counsel acknowledged his agreement, and the prosecutor said, "Your Honor, the State is ready to proceed to sentencing." The State did not request an adjournment or stay to afford it an opportunity to seek interlocutory review of the order denying its motion to vacate the plea agreement. The judge then sentenced defendant to concurrent four-year terms on counts four and six of Indictment No. 07-09-01403, and defendant commenced serving the sentence.
We are satisfied from our review of the record that Judge DeVesa was correct in concluding that there was nothing illegal about the plea agreement. We find no error in his conclusion that defendant's sworn testimony provided a sufficient factual basis to establish all elements of the offense to which he pled guilty. Discovery materials are not all-inclusive and the absence of any mention in the discovery materials that defendant did not possess the gun outside his home does not preclude that possibility.
On appeal, for the first time, the State has furnished this court with a transcript of the grand jury proceedings. It argues that the only evidence presented to the grand jury was that the gun was possessed in defendant's home, and therefore the charged crime is limited to that circumstance. Further, the State argues that the grand jury was not properly instructed because it was given no instruction about the exemption from criminal liability contained in N.J.S.A. 2C:39-6e. We reject this argument for several reasons. First, it was never presented to the trial court and is not properly cognizable on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Second, any defect in the grand jury proceeding affecting the decision to indict is cured or rendered moot upon conviction because a jury verdict (or guilty plea supported by a sufficient factual basis) establishes that there was probable cause to indict. United States v. Mechanik, 475 U.S. 66, 70, 196 S.Ct. 938, 941-42, 89 L.Ed. 2d 50, 56 (1986); State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). And third, from our review of the grand jury transcript, it is not clear whether the grand jurors were instructed with respect to N.J.S.A. 2C:39-6e. It is clear from the colloquy in the grand jury proceeding that instructions on the law had been provided to the grand jurors at a previous session, the transcript of which we have not been furnished.
Finally, we find no mistaken exercise of discretion by Judge DeVesa in declining to vacate the plea agreement on the basis that it was not in the interest of justice.
The appeal is dismissed.