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State v. Nicolas

Superior Court of New Jersey, Appellate Division

October 28, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JOE D. NICOLAS, a/k/a JOSE D. NICOLAS, and DIMITRI JOE NICOLAS, Defendant-Appellant.

          Submitted September 18, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 15-09-1200.

          Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief).

          Mark Musella, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief; John J. Scaliti, Legal Assistant, on the brief).

          Before Judges Whipple, Gooden Brown and Mawla.

          OPINION

          WHIPPLE, J.A.D.

         Defendant Joe D. Nicolas pled guilty to third-degree possession of 100 grams of a controlled dangerous substance (CDS) called alpha-pyrrolidinopentiophenone (alpha-PVP), also known as "flakka," in violation of N.J.S.A. 2C:35-10(a)(1). He appeals from a March 23, 2018, judgment of conviction, arguing the trial court should have granted his motion to dismiss the indictment because the substance defendant possessed was not illegal under New Jersey law. We affirm.

         We discern the following facts from the record. On April 23, 2015, narcotics officers arrested defendant after a successful undercover buy-bust operation in Fort Lee. Defendant was charged with second-degree possession of CDS (alpha-PVP), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(4), and third-degree possession of CDS (alpha-PVP), N.J.S.A. 2C:35-10(a)(1). Defendant appeared before the trial judge on a motion to dismiss the indictment, and argued alpha-PVP was not illegal to possess under New Jersey law. On May 25, 2017, the judge denied the motion with a written decision. On January 26, 2018, defendant entered a plea of guilty to the third-degree charge. On March 23, 2018, he was sentenced to a three-year term of probation, and the second-degree charge was dismissed. This appeal followed.

         On appeal, defendant raises the following arguments:

POINT I
THE INDICTMENT SHOULD HAVE BEEN DISMISSED BECAUSE POSSESSION OF ALPHA-[PVP] WAS NOT CONTRARY TO LAW ON APRIL 23, 2015.
POINT II
THE CONVICTIONS SHOULD BE REVERSED, AND THE CHARGES DISMISSED, BECAUSE DEFENDANT WAS DENIED DUE PROCESS OF LAW BY A STATUTORY- AND ADMINISTRATIVE-LAW SCHEME SO VAGUE THAT PEOPLE OF ORDINARY INTELLIGENCE MUST GUESS AT ITS MEANING. (Not Raised Below).

         We first address whether defendant waived his right to appeal from the May 25, 2017 denial of his motion to dismiss the indictment. Question 4(e) of defendant's plea form states defendant intended to enter a conditional plea, reserving his right to appeal "[the] [m]otion to [d]ismiss [and] [m]otion to [r]eveal [c]onfidential [i]nformant[.]" However, during the plea colloquy, the plea judge did not acknowledge defendant's reservations. Instead, the plea judge asked defendant whether he understood he was "giving up [his] right to file an appeal or any pretrial motion, with exception of a motion to suppress physical evidence, or enter a pretrial intervention ...


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