On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-01-0076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Jerry Herbert pled guilty to two counts of third degree possession of a controlled dangerous substance (CDS) (cocaine and heroin) with intent to distribute, N.J.S.A. 2C:35- 5a(1). Following denial of defendant's motion to withdraw his guilty plea, the judge sentenced defendant to concurrent five-year terms of imprisonment with a two-year period of parole ineligibility. The sentence was to run concurrent to any violation of parole. The appropriate fees, fines, penalties, assessments, and driver's license suspension were also imposed.
Defendant entered his guilty plea and waived indictment on January 14, 2009, the day his accusation was filed. Defendant asserted he was in the courtroom at some point before the luncheon recess. The transcript reveals his case and his bail had been discussed "inside," presumably in chambers. Defendant left the courtroom to return after lunch. Other matters were heard.
Prior to the recess, the trial judge followed a procedure in which several defendants present in the courtroom identified themselves. The judge read the group their rights, including their right to file a suppression motion. The defendants who were in the courtroom when the judge informed them of their right to file a suppression motion were Adam Johnson, Kenneth Dawkins, Jonathan Storm, Michael Garner, Robert Pope, Aaron Williamson, and Matthew Laird. The judge did not advise them that a guilty plea constituted a waiver of their rights to confront their accusers.
When defendant returned in the afternoon, the judge asked him if he had been present prior to lunch. Defendant replied that he had. The judge asked whether defendant had been told the penalties he faced. Defendant said that he had. The judge verified defendant had signed the waiver of indictment and trial by jury. However, the judge never asked defendant whether he realized that he was waiving his right to file a suppression motion. Nor did the judge address whether defendant was waiving his right to have counsel review the discovery prior to entering the plea. The judge did not ask whether defense counsel had read the discovery.
The plea form reveals defendant was to receive an aggregate five-year sentence subject to a two-year period of parole ineligibility to run concurrent with any violation of parole. If defendant was arrested on a new charge prior to sentencing or failed to appear at sentencing, his two drug counts would run consecutive to one another but still be concurrent with the violation of parole. The State agreed to bail in the amount of $10,000. The judge was informed that defendant would be able to post such a bail.
Defendant provided a factual basis for one drug offense and a partial factual basis for the other. He stated that, on November 1, 2008, he was in a car in Elizabeth. He had cocaine in his trunk that he planned to distribute. He also admitted to having had heroin on the same date at the same location, but he never stated that he had an intent to distribute it.
The court then suggested that, despite the plea agreement calling for a $10,000 bail, the State might want a higher bail. After a discussion with counsel, the State and defendant agreed to a $20,000 bail.
On June 22, 2009, defendant, now represented by a different attorney, moved to withdraw his guilty plea. In his motion, defendant alleged one of his primary concerns at the time of the plea was to negotiate a reduced bail. Counsel noted that defendant had not reviewed any discovery prior to entering his guilty plea at a predisposition conference. Defendant also had not been advised of any defenses or pre-trial motions available to him, such as the right to file a suppression motion. Defendant alleged he pled guilty to have his bail reduced so that he could see his newborn child prior to going to state prison.
Defendant sought to withdraw his guilty plea so that he could file a suppression motion. Defense counsel, having reviewed the discovery, informed defendant he had grounds to pursue a suppression motion because the officers searched his vehicle without probable cause. Defendant's former attorney had not reviewed the discovery prior to the plea. As a result, defendant maintained that he had not entered a knowing and voluntary guilty plea. Counsel also indicated that defendant maintained his innocence.
The State's response to the plea-withdrawal motion provided additional facts on which defendant could support a motion. The State asserted that an informant had advised an officer that two black males had been selling drugs out of a car owned by defendant. Three officers responded to the location and saw defendant and Jamal Thompson inside the car. Officer Lawrence Smith told defendant that he believed there were drugs in the trunk and asked for ...