On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-12-01938.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 6, 2010
Before Judges C.L. Miniman and LeWinn.
Defendant John Farry appeals from his conviction for possession of cocaine with intent to distribute in excess of five ounces, contrary to N.J.S.A. 2C:35-5b(1), entered upon his plea of guilty to the charge. Because defendant's nonspecific disagreement with the police reports did not rise to the level of a colorable claim of innocence, and a factual basis for his plea was not constitutionally required, we affirm.
We glean the following information from the persistence investigation report (PCI), albeit recognizing that defendant at sentencing expressly disagreed with the accuracy of same respecting his involvement in the events recorded in the incorporated police reports. Thus, for purposes of this appeal, we treat the following background information as the State's allegations only.
As a result of information gleaned from a confidential informant and a wiretap, the Special Operations Group (SAG) in the Ocean County Prosecutor's Office set up surveillance at the Cheese quake Service Area located between Exits 123 and 124 of the Garden State Parkway on May 31, 2007. At about 11:45 p.m., investigators observed a black Cadillac with tinted windows pull into the parking lot. Three white males, defendant, Robert Ballwin and Thomas Ballwin, all known to the investigators from prior police contact, exited the vehicle. They walked over to an Hispanic male, later identified as Ricardo Melendez, who was standing next to a dark-colored vehicle with New York license plates. No interception was made at that time. The surveillance was continued for the next week.
On June 10, 2007, investigators intercepted another call between defendant and Melendez during which they again arranged to meet at the Cheese quake Service Area in the early morning hours of June 15th. The SAG investigators determined to effect an interception on that date. Surveillance was initiated at the Cheese quake Service Area during the evening hours of June 14, 2007. During that surveillance, the police intercepted two telephone calls between defendant and Melendez coordinating their arrival. Melendez advised that he would be operating a van.
A dark blue minivan was identified in the lot of the service area. The officers observed Melendez and another Hispanic male, Jose Corporeal, get out of the van and walk into the food court at the service area. Shortly thereafter, Thomas Bulwin's green Honda Accord pulled into the service area parking lot with Bulwin driving and defendant in the front passenger seat. Both defendant and Bulwin exited the Honda and went into the food court. Investigators entered the food court and observed all four men sitting together at a table. Moments later, all four men exited the food court and returned to their respective vehicles.
Both vehicles were subsequently detained before they could leave the service area. When defendant was detained, he inquired as to the reason for the detention, and the investigators informed him that it was a narcotics investigation. He stated that he "didn't know what they were talking about." He further stated that the only thing he had on him was money and, when asked how much, he replied that he had $8400 in his right front pocket. The money was confiscated. After the occupants of the blue minivan identified themselves, the investigators conducted a search of the minivan and recovered 500 grams of suspected cocaine. At 1:50 a.m. on June 15, 2007, investigators executed a search warrant at defendant's residence and recovered six packets of Effexor, two air rifles, a plastic gun, a replica submachine gun, BB pellets, fireworks, financial records, and a computer tower.
Defendant was indicted along with Melendez, Cortoreal, both Bulwins, and Philip Bruno, Jr. Defendant was charged with the following crimes: one count of second-degree conspiracy to possess cocaine with intent to distribute more than five ounces on May 31, 2007, contrary to N.J.S.A. 2C:5-2 (Count Three); third-degree possession of cocaine on June 15, 2007, contrary to N.J.S.A. 2C:35-10a(1) (Count Five); and first-degree possession of cocaine with intent to distribute in excess of five ounces on June 15, 2007, contrary to N.J.S.A. 2C:35-5b(1) (Count Six).
On April 23, 2008, defendant appeared before a judge to enter a plea of guilty to Count Six. The prosecutor agreed to recommend an eighteen-year term in prison with a five-year parole disqualifier in exchange for defendant's plea to Count Six. The prosecutor also agreed to dismiss the remaining charges against defendant and to dismiss a disorderly persons offense charged against defendant's wife. The prosecutor also represented that defendant was subject to an anti-profiteering penalty of $100,000.
The judge carefully elicited testimony from defendant that he understood the nature of the offenses with which he had been charged, he understood the plea, and he knowingly and voluntarily agreed to the plea. The judge went over the plea form and elicited defendant's agreement to each of the terms, his understanding of them, and his satisfaction with counsel.
Defendant's counsel then examined him with respect to the offense. After reviewing the telephone calls between defendant and Melendez, which defendant admitted, the following testimony was elicited:
Q. And you went up to the rest area at . . . Wall Township on the Garden State Parkway; is that correct?
Q. And on your person you had approximately $8,400; is that correct?
Q. And that was money that you had in order to purchase the CDS ...