March 16, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STANLEY SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 06-09-2024-I and 06-09-2187-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Grall and Ashrafi.
Defendant Stanley Smith, a convicted felon with a lengthy criminal history, was arrested twice in one month for selling heroin in the same Atlantic City park. He pleaded guilty pursuant to a plea agreement with the State, and he was sentenced to prison in accordance with the terms of the plea agreement. He now challenges the search of his apartment and the sufficiency of a factual basis in his plea allocution.
Two separate indictments were returned against defendant in September 2006. Indictment 06-09-2187 charged seven counts of drug, illegal weapon, and related offenses occurring on July 6, 2006: (count one) third-degree possession of heroin, in violation of N.J.S.A. 2C:35-10a(1); (count two) third-degree possession of heroin with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and -5b(3); (count three) second-degree possession of heroin with intent to distribute within 500 feet of public property, in violation of N.J.S.A. 2C:35-7.1; (counts four and five) third-degree resisting arrest with physical force, in violation of N.J.S.A. 2C:29-2a(1); (count six) third-degree receiving stolen property, namely a handgun, in violation of N.J.S.A. 2C:20-7; and (count seven) second-degree possession of a weapon by a convicted felon, in violation of N.J.S.A. 2C:39-7.
Indictment 06-09-2024 charged defendant with five counts of drug offenses occurring on August 3, 2006: (count one) third-degree possession of heroin, in violation of N.J.S.A. 2C:35-10a(1); (count two) third-degree possession of heroin with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and -5b(3); (count three) third-degree distribution of heroin, in violation of N.J.S.A. 2C:35-5a(1) and -5b(3); (count four) third-degree distribution of heroin within 1000 feet of school property, in violation of N.J.S.A. 2C:35-7; and (count five) second-degree possession of heroin with intent to distribute within 500 feet of public property, in violation of N.J.S.A. 2C:35-7.1.
Defendant moved to suppress evidence seized by the police at the time of his arrests. The trial court held a suppression hearing on both indictments and denied defendant's motions. Several weeks later, defendant accepted a plea offer from the State and pleaded guilty to three counts: count two of Indictment No. 06-09-2187, third-degree possession of heroin with intent to distribute; count seven of the same indictment, second-degree possession of a handgun by a convicted felon; and count five of Indictment No. 06-09-2024, second-degree possession of heroin with intent to distribute within 500 feet of public property.
Subsequently, defendant was sentenced to eight years in prison with a five-year period of parole ineligibility on the second-degree weapons charge; a concurrent term of five years in prison on the charge of possession of heroin with intent to distribute on July 6, 2006; and another concurrent term of eight years in prison with four years of parole ineligibility on the second-degree charge of possession of heroin with intent to distribute within 500 feet of public property on August 3, 2006.
Defendant makes the following arguments on appeal:
BECAUSE THE CONSENT TO SEARCH WAS INVALID, THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE GUN FOUND IN HIS APARTMENT, U.S. CONST. AMENDS, IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7
THE GUILTY PLEA TO COUNT 5 OF INDICTMENT 06-09-2024 MUST BE VACATED BECAUSE IT LACKED THE FACTUAL BASIS THAT THE OFFENSE OCCURRED WITHIN 500 FEET OF PUBLIC PROPERTY (NOT RAISED BELOW).
We reject both arguments.
Defendant challenges the seizure of a .357 silver revolver from a bag in his apartment after his arrest on July 6, 2006. He contends that he did not give voluntary consent for the search. One of the arresting officers and defendant testified at the suppression hearing. Reviewing the testimony, the court found the following relevant facts.
On July 6, 2006, Officer Howard Mason of the Atlantic City Police Department received information from a citizen that a man fitting the description of defendant was selling drugs in Brown's Park. The officer conducted surveillance from about one block away and observed defendant engage in a hand-to-hand transaction with another man. Based on his experience on the vice squad, the officer believed that defendant had just sold an illegal drug to the other man.
Officer Mason and another officer approached the two men. Defendant began to walk or run away, and both officers pursued him. Officer Mason saw defendant reach into his pocket and throw something to the ground. The officer picked up the discarded item while continuing his pursuit. It was later determined to be fifty small bags of heroin.
Eventually, defendant stopped and a struggle ensued with the officers while he was being put under arrest and handcuffed. Through a search of defendant's person incident to arrest, the officers found $517 in cash and another four bags of heroin with markings like the bags retrieved from the ground. The officers placed defendant in a patrol car.
About fifteen minutes after the arrest, the police officers asked defendant if he would consent to their searching his apartment. Defendant said that he had no other drugs in the apartment and that his wife was not involved with the drugs. After one of the officers advised defendant that he had a right to refuse consent and to stop the search at any time if he did consent, defendant signed a consent form and provided a key for the officers to enter his apartment. As they entered, the officers asked defendant if he had any weapons in his apartment. Defendant told them that he had an unloaded handgun in a closet but that he had no ammunition for it. The officers found the .357 revolver where directed by defendant. They did not find any ammunition.
Defendant's version at the suppression hearing was that he was beaten by the officers and he was too fearful to refuse consent for the search. He admitted signing the consent form, but as corroboration for his allegation that he was beaten, defendant testified that the county jail would not accept him into custody until he had been medically cleared.
The trial court found Officer Mason's version of the facts more credible. The court found nothing unusual in the manner that defendant had signed the consent form and credited the testimony of the officer that defendant was cooperative after the police arrested him and seized all the drugs in his possession. The county jail's refusal to accept defendant into custody was likely the result of his serious medical conditions, including being on kidney dialysis treatment and suffering from congestive heart disease. The court concluded that defendant had voluntarily consented to a search of his apartment, as further evidenced by his revealing the location of the handgun.
On appeal, this court must defer to the trial court's credibility determinations between competing factual testimony. State v. Locurto, 157 N.J. 463, 474 (1999); State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S.Ct. 1929, 16 L.Ed. 2d 1022 (1966). Considering the testimony of Officer Mason that defendant was advised of his right to refuse consent and to stop the search after it began, and evidence that defendant's mental and physical condition did not interfere with his ability to understand his rights or to exercise his free will, there was ample evidence in the record to support the judge's conclusion that defendant voluntarily consented to the search.
With respect to defendant's guilty plea, Rule 3:9-2 requires that the court determine "by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea." The May 23, 2007, transcript of the plea hearing establishes that the plea agreement required defendant to plead guilty to counts two and seven of Indictment No. 06-09-2187 and to counts four and five of Indictment No. 06-09-2024. Upon questioning by the judge, defendant could not acknowledge a particular school within 1,000 feet of the location where he distributed heroin on August 3, 2006, as charged in count four of the second indictment.
The court moved on to count five, charging possession with intent to distribute within 500 feet of public property, and the following colloquy took place:
THE COURT: All right. Now, on the same date, Count 5, did you knowingly or purposely possess with intent to distribute C.D.S. within 500 - I'm sorry, C.D.S. that was heroin within 500 feet of what?
[ASSISTANT PROSECUTOR]: This would've been Brown's Memorial Park.
DEFENDANT: Your Honor, that sounds like the same - the same as - I'm confused now because it sounds like the same -
[DEFENSE COUNSEL]: Well, it is.
[ASSISTANT PROSECUTOR]: It's also Stanley Holmes, too, Your Honor.
DEFENDANT: Yeah, I mean, that's all the same.
[ASSISTANT PROSECUTOR]: And that's what the complaint says.
DEFENDANT: It sounds like the same - I'm saying yes to the same thing.
The court then discussed with counsel whether count four was necessary as part of the plea, since it would merge with count five for purposes of sentencing. The assistant prosecutor agreed to amend the plea agreement. The colloquy continued as follows:
THE COURT: - I'm going to dismiss Count 4. Mark your paper accordingly. And then the only thing he's going to plead to then is Count 5, that you were within 500 feet -
THE COURT: - of Stanley Holmes.
THE COURT: All right. All right. All right. I'll accept the plea. Defendant's knowingly, voluntarily waived his right to trial.
Although not stated explicitly, all participants seemed to understand that Stanley Holmes was a reference to a public housing facility in the area of the drug transaction. By accepting the guilty plea to count five in the context of discussion about the school and public property counts, the trial court implicitly found a factual basis for the plea of guilty within 500 feet of public property. Cf. State v. Clark, 352 N.J. Super. 130 (App. Div.), certif. denied, 174 N.J. 545 (2002)(despite defendant's insistence in plea allocution that knife in his possession was a tool and not a weapon, court could accept guilty plea to charge of armed burglary based on court's understanding of the nature of the knife).
We conclude that acceptance of defendant's guilty plea to count five of Indictment 06-09-2024 satisfied the requirements of Rule 3:9-2.
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