On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-10-2338.
The opinion of the court was delivered by: Gilroy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Fuentes, Gilroy and Chambers.
With advice of counsel, defendant Louis E. Veney pled guilty to the charge of third-degree unlawful possession of a weapon. The question presented on appeal is whether defendant was denied effective assistance of counsel because his attorney failed to seek dismissal of the charge prior to his plea, the State having previously tried defendant to conclusion on another charge arising from the same core set of facts giving rise to the charge of unlawful possession of a weapon. We conclude that the State was barred from prosecuting the charge of unlawful possession of a weapon pursuant to the mandatory joinder rule, N.J.S.A. 2C:1-8b and Rule 3:15-1(b). Accordingly, we hold that defendant was denied effective assistance of counsel; and reverse the conviction and dismiss the indictment.
On July 6, 2005, a Howell Township patrolman investigated a suspicious-activity complaint at a K-Mart retail store in the township. On approaching defendant's motor vehicle in the store's parking lot, the officer observed what appeared to be a "marijuana blunt" on the vehicle's center console. After defendant informed the officer that there was a gun in the vehicle, the officer searched the vehicle, finding an unloaded handgun, inside a work boot in the rear of the vehicle.
On October 26, 2005, a Monmouth County Grand Jury charged defendant under Indictment No. 05-10-2338 with third-degree unlawful possession of a weapon (a handgun, without having obtained a permit to carry the same), N.J.S.A. 2C:39-5b (Count One); fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b (Count Two); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7b (Count Three).*fn1 The State also charged defendant under a separate complaint-summons with disorderly persons offenses of possession of less than 50 grams of marijuana, N.J.S.A. 2C:35-10a(4); and possession of drug paraphernalia, N.J.S.A. 2C:36-2. Lastly, the State charged defendant with two traffic offenses of operating a motor vehicle while his driver's license was suspended and of operating a motor vehicle while in possession of a controlled dangerous substance (CDS).
Following a jury trial, defendant was found guilty on Count Three. On November 8, 2006, the trial court granted defendant's motion for judgment of acquittal notwithstanding the verdict.
On the same day, defendant pled guilty, pursuant to a plea agreement, to Count One in exchange for the State recommending: a four-year term of imprisonment with an eighteen-month period of parole ineligibility; and a dismissal of Count Two, the disorderly persons and traffic offenses. On the same day, the trial court, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6), and (9), and mitigating factor N.J.S.A. 2C:44-1b(11), sentenced defendant in accordance with the plea agreement.
On appeal, defendant argues:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS ATTORNEY FAILED TO RAISE A DOUBLE JEOPARDY DEFENSE. (NOT RAISED BELOW).
THE COURT COMMITTED PLAIN ERROR, CAPABLE OF PRODUCING AN UNJUST RESULT, IN ACCEPTING A PLEA OF GUILTY TO A CHARGE THAT VIOLATED DEFENDANT[']S RIGHTS AGAINST DOUBLE JEOPARDY WITHOUT CONDUCTING A WAIVER HEARING. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
On July 18, 2006, prior to selecting a jury, the prosecutor advised the court that the State "is going" to dismiss Counts One and Two of the indictment, and "move" to trial on Counts Three and Four, with the State either dismissing the disorderly persons and traffic offenses after trial or remanding them to the municipal court for disposition.
PROSECUTOR: Judge, with regard to -- the State initially made, actually drafted a letter to defense counsel, and the State is going to dismiss the indictment on 05-10-2338, case number 05337, Count 1, unlawful possession of a weapon which is [defendant] and Steven Mason. That will be dismissed.
Count 2 is a hindering apprehension of oneself, that's charged against [defendant] solely. That would be a dismissal. The State is going to move on Counts 3 and 4. Count 3 is a certain persons not to have a weapon, second degree offense.
So the State is just going to proceed with Counts 3 and 4.
COURT: All right, so the State is -- I asked if there were requests to charge. But you want to address amendments to the indictment.
PROSECUTOR: Well, not amendments, we're dismissing Counts 1 and 2.
With neither defendant nor co-defendant objecting to the State's motion, the court informed counsel that it would grant the motion "after the jury is sworn and before the openings." Accordingly, the court did not enter an order of dismissal at that time. Nor did the State move to dismiss Counts One and Two after the court impaneled the jury.
The State proceeded to try Counts Three and Four, charging defendant and co-defendant, respectively, with second-degree certain persons not to have a weapon. The jury convicted defendant, but did not reach a verdict on Count Four against co-defendant. On August 11, 2006, defendant filed a motion for a new trial contending that the verdict was against the weight of the evidence. The court denied the motion on October 11, 2006. At that proceeding, after reviewing the pre-sentence report, defendant questioned whether the ...