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State v. Grisales

Superior Court of New Jersey, Appellate Division

September 18, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,


Submitted September 9, 2013

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-01-00118.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Melissa A. Tirone, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Kennedy and Guadagno.


Defendant appeals his February 3, 2012 conviction, pursuant to a plea agreement, for second-degree possession of one-half ounce or more of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2), as well as the five-year sentence of incarceration "[c]onsecutive to [a] federal sentence being currently served." Defendant entered a retraxit plea of guilty to the offense on the record on November 16, 2009, after his earlier motion to suppress evidence was denied.

Defendant raises the following arguments on appeal:

Point 1 The trial court should have granted defendant's motion to suppress and excluded the evidence seized from the residence, warranting vacation of the subsequent plea based on the evidence.
Point 2 Entry of the guilty plea was improper based on legally insufficient facts and failure to fully advise defendant of all sentencing consequences during the plea colloquy.
Point 3 Defendant's sentence is improper and excessive. We have considered these arguments in light of the record and applicable legal standards, and we affirm.


We discern the following facts from the record, primarily from the transcripts of the motion to suppress evidence and the plea and sentencing hearings.

The record on the suppression motion reveals that on September 14, 2008, Plainfield police were working an area known for drugs and violence. At 11 p.m., Police Sergeant Kevin O'Brien saw a male he had known from a prior investigation looking at him, and then putting something into his pocket and dialing a cell phone. As O'Brien approached, he detected an odor of marijuana from the male, later identified as Giovanne Kelly.

Kelly initially told the officers he was visiting people in the house behind him, but when asked if the occupants of the house would confirm that, Kelly changed his story and said he had been visiting another house, pointing at a particular residence on West Front Street, a small building with apartments. Kelly was arrested after police observed him with a Ziploc bag of suspected marijuana.

O'Brien had previously executed a search warrant for drugs at that particular residence, and thus was familiar with the premises. After O'Brien knocked on one of the apartment doors, defendant opened the door. Two women, Baloco and Spahn, stood on the steps behind defendant. Defendant denied Kelly had been there earlier, but Baloco said he had just left. Defendant said he did not live there and Baloco said she did. After O'Brien asked if the officers could come in and talk with her, she invited them in.

In a bedroom, O'Brien explained they were narcotics officers and asked if they could search the apartment. He told her she had the right to refuse, had the right to accompany the officers, and could halt the search at any time. She consented but O'Brien did not ask her to sign a consent form because the other officers were keeping an eye on the others and Baloco appeared cooperative. In the kitchen, O'Brien found a scale, a box of clear bags and a sock containing cocaine. Defendant and the others were then arrested.

At the suppression hearing, O'Brien testified on behalf of the State. Defendant's investigator was permitted to play a recording of his conversation with Kelly in which he denied pointing to a particular residence, but said he merely pointed up the street. Baloco testified she never gave the police permission to search and that O'Brien never told her about her rights.

The motion judge found the testimony of O'Brien to be credible and believable and denied the motion. Defendant later pled guilty to possession of one-half ounce or more of cocaine with intent to distribute and the State agreed it would recommend six years' incarceration. On a supplemental plea form, the judge agreed that defendant's sentence would not exceed five years' incarceration. Defendant acknowledged his rights, and said he signed and understood the plea form. Defendant conceded he possessed more than half an ounce of cocaine and was going to "give it to other people." The judge accepted the plea on November 16, 2009.

Defendant did not appear for sentencing but was later apprehended, and on February 3, 2012, was sentenced to five years in State prison, "consecutive to federal sentence being currently served." The pre-sentence investigation report reveals he was convicted on April 4, 2011, in United States District Court for possession of cocaine with intent to distribute and was sentenced to ten years' incarceration. That offense occurred on March 16, 2010, in North Carolina.


We turn first to defendant's argument that the motion court erred in denying suppression. We begin with a review of the principles which guide our analysis. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (quotation marks and citation omitted). A motion court's findings of fact may be disturbed only when they are "so plainly unwarranted that the interests of justice demand intervention and correction." State v. Johnson, 42 N.J. 146, 162 (1964).

A consent to search is an exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 860 (1973); State v. Maristany, 133 N.J. 299, 305 (1993); State v. Miller, 159 N.J.Super. 552, 556 (App. Div.), certif. denied, 78 N.J. 329 (1978). Such consent need not be written. State v. Birkenmaier, 185 N.J. 552, 557 (2006). The State meets its burden under the Fourth Amendment and New Jersey Constitution if consent to search was "freely and voluntarily given." Schneckloth, supra, 412 U.S. at 222, 93 S.Ct. at 2046, 36 L.Ed.2d at 860; see also State v. Johnson, 68 N.J. 349, 353-54 (1975). "Consent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent[.]" Maristany, supra, 133 N.J. at 305 (citations omitted).

While New Jersey's search and seizure provision is similar to its federal counterpart, consent searches require a higher level of scrutiny. State v. Carty, 170 N.J. 632, 639 (2002), modified on other grounds, 174 N.J. 351 (2002). To justify a warrantless search based on consent, "the State must prove that the consent was voluntary and that the consenting party understood his or her right to refuse consent." Maristany, supra, 133 N.J. at 305 (citing Johnson, supra, 68 N.J. at 353-54). The State must "prove voluntariness by 'clear and positive testimony.'" State v. Chapman, 332 N.J.Super. 452, 466 (App. Div. 2000) (citation omitted). Furthermore, the State must "show that the individual giving consent knew that he or she had a choice in the matter." Carty, supra, 170 N.J. at 639 (citation and internal quotation marks omitted).

Guided by these standards, we affirm the decision of the motion judge. The judge found the testimony of officer O'Brien to be credible and that he properly informed Baloco of her right to refuse consent to search the premises and her right to stop the search at any time. The judge also credited the officer's explanation for the failure to have Baloco sign a consent form.

The judge determined that Baloco's consent was given freely and voluntarily and with knowledge of the right to refuse to consent to the search. These findings are adequately supported in the record and we defer to the motion judge's findings. Moreover, as we have noted, there is no requirement that consent to search be given in writing. Birkenmaier, supra, 185 N.J. 557.

Next, defendant argues there was an insufficient factual basis for his plea to the charge of possession of cocaine with intent to distribute. Defendant asserts that he never admitted to possessing the cocaine found in the apartment. We disagree.

During the plea colloquy, the judge asked the defendant:

On Count 2, it says, on the 14th of September, 2008, in Plainfield, that you did unlawfully and knowingly or purposely possess, with intent to distribute, cocaine, in a quantity . . . greater than one-half ounce of cocaine. Is that true, sir?

Defendant replied, "Yes." Defendant also acknowledged that he intended to "use [the cocaine] with other people" and "give it to other people." We briefly review the legal principles governing the adequacy of the factual bases of pleas before examining the adequacy of the factual basis of defendant's plea in this case.

Although a challenge to the adequacy of the factual basis could be raised by motion to withdraw a plea, see Rule 3:21-1, alternatively, defendant may raise that issue through a direct appeal. State v. Butler, 89 N.J. 220, 224 (1982); State v. Mitchell, 374 N.J.Super. 172, 175 (App. Div. 2005).

R. 3:9-2 provides, in pertinent part, that the court shall not accept a plea of guilty to an offense

without first questioning the defendant personally, under oath or by affirmation, and determining . . . that there is a factual basis for the plea and that the plea is made voluntarily . . . with an understanding of the nature of the charge and the consequences of the plea.

The factual basis for a guilty plea "must obviously include defendant's admission of guilt of the crime or the acknowledgment of facts constituting the essential elements of the crime." State v. Sainz, 107 N.J. 283, 293 (1987). Because "a guilty plea is the final relinquishment of the most cherished right - to be presumed innocent of a crime until a jury of one's peers has determined guilt beyond a reasonable doubt[, ]" State v. Smullen, 118 N.J. 408, 414 (1990), "a judge must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" State v. Taccetta, 200 N.J. 183, 196 (2009) (quoting State v. Slater, 198 N.J. 145, 155 (2009) (citation omitted)). Therefore, "'[e]ven if a defendant wished to plead guilty to a crime he or she did not commit, he or she may not do so. No court may accept such a plea.'" Ibid. (quoting Smullen, supra, 118 N.J. at 415).

The fact that a plea results from a negotiated plea agreement does not "obviate the need to establish a sufficient factual basis for the plea." Butler, supra, 89 N.J. at 224; State v. Taylor, 80 N.J. 353, 362 (1979). While we are "very sensitive to the requirement that there be an adequate factual basis for a plea of criminal guilt[, ]" Smullen, supra, 118 N.J. at 414, nonetheless a trial court need not

follow a prescribed or artificial ritual. To the contrary, because different criminal charges and different defendants require courts to act flexibly to achieve constitutional ends, a factual basis, established either through inquiry of others, which a defendant acknowledges, or through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy.

[State ex rel. T.M., 166 N.J. 319, 327 (2001) (citations omitted).]

However, not every alleged deficiency in a factual basis provided by a defendant during a plea colloquy requires reversal. See State v. D.D.M., 140 N.J. 83, 95 (1995); State v. Pena, 301 N.J.Super. 158, 163 (App. Div.), certif. denied, 151 N.J. 565 (1997). In State v. Mitchell, 126 N.J. 565, 577-78 (2009), the Supreme Court stated:

As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly "voluntary" decision on his own. See McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22

L.Ed.2d 418, 425-26 (1969); State v. Barboza, 115 N.J. 415, 421 n. 1, (1989). In D.D.M., supra, 140 N.J. at 95, the defendant challenged his sentence as illegal, arguing that the trial court accepted his guilty plea without a factual basis. Citing Mitchell, supra, 126 N.J. at 577-78, the Supreme Court held that the failure of the trial court to elicit a complete factual basis was not sufficient to invalidate the defendant's conviction and to render his sentence illegal because: (1) the defendant did not express a contemporaneous claim of innocence at the plea hearing; and (2) the record clearly indicated the defendant's satisfaction with counsel, his acknowledgement of his prior record for similar offenses, and his understanding of the crime and the significance of his guilty plea. D.D.M., supra, 140 N.J. at 95-96.

Here, defendant conceded he possessed the cocaine and intended to use some of it, and give some of it to others.[1] We are satisfied that defendant did provide a sufficient factual basis for his plea of guilt to possession of cocaine with intent to distribute. State v. Heitzman, 209 N.J.Super. 617, 621 (App. Div. 1986), aff'd o.b., 107 N.J. 603 (1987) (defendant's admission that he intended to use some marijuana personally, and share it with friends, as well, was a sufficient factual basis for a plea of guilt to possession of marijuana with intent to distribute).

Further, defendant argues that he was not sufficiently advised of the immigration consequences of his plea, and was "not sufficiently advised" that his sentence may run consecutively to any sentence he might face on future crimes. These arguments are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(2). We note only that there is no requirement to advise a defendant of enhancements that might apply if the defendant commits crimes in the future. State v. Wilkerson, 321 N.J.Super. 219, 224 (App. Div.), certif. denied, 162 N.J. 128 (1999) (there exists "no constitutional requirement that a defense attorney must advise a client or defendant that if he or she commits future criminal offenses that there may be adverse consequences by way of enhancement of the penalty.").

Finally, defendant argues that his sentence was excessive, and that "there was insufficient ground to run the State sentence consecutive" to the federal sentence. We disagree. The sentencing judge properly identified and weighed the aggravating and mitigating circumstances, and sentenced defendant to the lowest period of incarceration for a second degree offense. The remainder of defendant's arguments pertaining to his sentence are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(2). Affirmed.

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