Timing of motion to withdraw plea is key














Submitted February 24, 2009 – Decided


Before Judges Wefing and Parker.


On appeal from Superior Court of New Jersey,

Law Division, Sussex County, No. 04-09-0287-I.


Yvonne Smith Segars, Public Defender, attorney

for appellant (Abby P. Schwartz, Assistant Deputy

Public Defender, of counsel and on the brief).


Anne Milgram, Attorney General, attorney for

respondent (Leslie-Ann M. Justus, Deputy

Attorney General, of counsel and on the brief).




Defendant appeals from his conviction for possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), for which he was sentenced to three years in prison. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was charged under Indictment No. 04-09-0287 with one count of possession of a controlled dangerous substance, heroin, in violation of N.J.S.A. 2C:35-10(a)(1). He was also charged under a separate indictment with two counts of bail jumping, in violation of N.J.S.A. 2C:29-7. Finally, he was charged with driving while intoxicated in violation of N.J.S.A. 39:4-50 and also received several other motor vehicle summonses. The only matter before us on appeal is his conviction for possession, which was the result of defendant pleading guilty after the trial court denied his motion to suppress.

Defendant makes two contentions on appeal:





Defendant filed his motion to suppress and, in accordance with Rule 3:5-7(b), the State filed an opposing brief, which set forth its version of the applicable facts in the following manner:

At approximately 12:13 p.m. on January 11, 2004, Sparta Police Officer Jeffrey Mase was traveling southbound on Route 15. He observed what appeared to be a disabled vehicle on the shoulder underneath the Route 517 bypass. He saw two people sitting inside the cab of the pickup [] truck and a man outside of it near the passenger window. He turned around to assist and when he approached the vehicle, he saw the defendant trying to secure a piece of plastic over the passenger window.


The defendant approached the officer and in doing so he was shuffling his feet and staggering as he walked. He explained that the window had been broken last night in Elizabeth and he had stopped to re-secure it because it was ripping. His speech was slurred and he nervously rambled about why he went to Elizabeth to pick up his daughter who had a drug problem and needed to get away from the bad influences of that area. He pointed out the woman in the cab as his daughter and the male passenger as his son.


Officer Mase noted that the defendant’s pupils were constricted and his eyelids were droopy. These are signs of narcotic ingestion or intoxication based upon his training and experience. The defendant was swaying side to side. He explained that he really didn’t stay overnight in Elizabeth and that none of the numerous tools in the bed of his pickup truck had been stolen. He went on to explain that he had not reported the broken window to local police, and then began to ramble about his daughter’s boyfriend having done some serious prison time.


He provided his credentials and volunteered that his license would come back as suspended but that it really wasn’t suspended.


Backup arrived and went to check the status of the defendant’s license. In the meantime, Officer Mase told the defendant that he suspected the defendant of drug use because of his pupils, speech and his swaying and staggering. The defendant denied drug use and indicated that he had just gotten out of detox. Corporal Takacs confirmed that the license was suspended. Officer Mase asked the defendant when he last used drugs and the defendant indicated that he used cocaine maybe a week ago.


Mase went to check with the passengers to see if either of them had a valid license. They both appeared nervous and the woman was singing and turning around and bouncing on her seat. She indicated that her license was suspended and the boy indicated that he did not have a license. She provided the name of “Kelly Clark,” with a birthdate of July 11, 1979, and indicated that she did not have a middle name. She explained that her father, brother and she had gone to Elizabeth that morning in order to get money to repair the broken window, that they had left Greeley, Pennsylvania that morning and had not been in Elizabeth the night before. She went on to explain that she was responsible for the broken window.


A check of the name provided by the woman came back as not on file. In response, Mase turned to the defendant who informed him that his daughter’s name was “Connie E. Clark” with a date of birth of November 9, 1980. Mase inquired why the woman would give him the name “Kelly” and the defendant responded that she had been in a lot of trouble with drugs and probably had warrants.


Mase once again asked the woman her name and she supplied the same name and date of birth as before. She then started to reach down toward the floor under the steering wheel and grab for a pair of gloves among the many items strewn over the floor of the cab. Mase told her to let the gloves alone and to step out of the truck. She continued to insist that she had given her correct name and Mase observed that she had pinpoint pupils and her eyelids were droopy, and she had a bloody scab on her face.


The son, Paul, appeared very nervous, wouldn’t look at Officer Mase and had been moving clothing around inside the cab of the truck. Mase began to speak to him and noticed a waxed paper fold, with a green stamp on it, on the floor of the cab underneath the steering wheel. Mase knew from his training and experience that the waxed paper fold was consistent with being a bag of heroin. He seized it and directed Paul to get out of the truck.


Mase, Sgt. Spidaletto and Officer Rubino searched the truck. Mase found a used hypodermic needle on the passenger side floor and multiple other used bags of heroin on the floor of the truck. Spidaletto recovered a pipe packed with burned marijuana in a cigarette pack on the dashboard, another syringe under the seat and another bag of heroin under the seat. Rubino recovered a cap for a needle and a bag of heroin from the defendant’s coat located behind the seat. A drug recognition expert examined the defendant and gave an opinion that the defendant was under the influence of a narcotic analgesic and depressant. The defendant was directed to provide a urine sample which tested positive for codeine, morphine and 06-monoacetylmorphine, which is a metabolite of heroin. A sample of one of the two full bags of heroin seized from the vehicle tested positive for the presence of heroin.


Defendant did not oppose that factual recitation and agreed that there was no dispute as to the material facts of what had occurred. In that posture, defendant’s motion to suppress was presented to the trial court without a testimonial hearing. State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div.), certif. denied, 144 N.J. 589 (1996).

We are satisfied the trial court correctly denied defendant’s motion. Police Officer Mase was confronted with a driver who exhibited symptoms of being under the influence of a substance and unable to safely drive the vehicle. In addition, a credentials check indicated that defendant’s driver’s license had been suspended. It is immaterial whether defendant told the officer, as he now insists he did, that he did not need assistance. Officer Mase could not simply leave the scene and permit defendant to drive away.

Officer Mase properly went to speak to the other two occupants of the truck to determine whether either of them could be entrusted to safely drive the truck. It was apparent to him that defendant’s daughter was in no shape to drive and his son did not have a license. It was during his conversation with these two individuals that he noticed on the floor of the truck a waxed paper fold which his experience told him was often used to contain a controlled dangerous substance.

The cases which defendant cites to us provide no authority for reversing the order denying his motion to suppress. The issue is not whether Officer Mase had reasonable grounds to stop defendant. Defendant was already stopped and appeared to be in the process of making a repair. Officer Mase made an entirely appropriate field inquiry to determine whether everything was all right and whether further assistance was needed. Defendant’s impaired condition, and his suspended license, were ample justification for all that followed.

Several months after defendant pled guilty to possession of a controlled dangerous substance, he filed a motion to withdraw his guilty plea. He contends on appeal that the trial court erred when it denied his motion.

The Supreme Court has recently had occasion to consider the standards a trial court should employ when it is called upon to decide a motion to withdraw a plea of guilty. State v. Slater, ___ N.J. ___ (2009). In that case, the defendant pled guilty to second-degree possession of cocaine with intent to distribute after the trial court denied his motion to suppress. Id. at ___ (slip op. at 3-4). Twelve days after pleading guilty, the defendant filed a hand-written motion seeking to withdraw his guilty plea. Id. at ___ (slip op. at 5). The trial court denied his motion, saying that a change of mind was not a sufficient basis to withdraw a guilty plea. It proceeded to sentence defendant to five years in prison, in accordance with the bargain which had been negotiated. Id. at ___ (slip op. at 6). While this court affirmed the trial court’s denial of the motion to withdraw the defendant’s guilty plea, the Supreme Court reversed.

According to the Court, decision of a motion to withdraw a guilty plea requires analysis of four factors:

We hold that trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.


[Id. at ___ (slip op. at 13).]


Here, defendant told the trial court that he wanted to withdraw his guilty plea both because he was not guilty (he maintained the drugs found in the truck belonged to his daughter and not to him) and because his attorney at the time had pressured him to plead guilty, telling him he “wasn’t going to go anywhere” if he insisted on a trial.

Those assertions, however, stood in stark contrast to defendant’s statements under oath at the time he pled guilty. And, as opposed to the defendant in Slater, there is no indication in this record that at the time defendant pled guilty he had any unhappiness with his then-attorney. Further, at the time defendant entered this guilty plea, he also had charges of bail-jumping that were pending against him. Defendant clearly stated during the plea colloquy that it was his decision to plead guilty only to the charge of possession and to contest the bail-jumping charges.1 This strongly rebuts defendant’s assertion that his will was overborne.

The Court in Slater noted that defendant had acted swiftly in seeking to withdraw his guilty plea. He filed his motion twelve days after pleading guilty and, according to the Court, insisted as part of the pre-sentence report that he was not guilty and was seeking to withdraw his guilty plea. Id. at ___ (slip op. at 20-21). Here, defendant waited for months before acting, and his pre-sentence report contains not a hint of dissatisfaction with the bargain.

The Court in Slater also noted that a trial “court’s ruling may rest, of course, on its view of defendant’s demeanor and candor at both the plea proceeding and any later hearing on the withdrawal motion.” Id. at ___ (slip op. at 17). Here, defendant’s daughter, who was arrested with defendant, unfortunately died while her matter was pending. In deciding defendant’s motion to withdraw his guilty plea, the trial court made extensive observations about the effect upon defendant of his daughter’s untimely death and its belief that defendant’s motion was the product of his profound distress at his daughter’s death, rather than a reasoned analysis.
Although the trial court did not have the benefit of the Court’s opinion in Slater at the time it denied defendant’s motion, its opinion, in our judgment, can fairly be read to conclude that defendant had not put forth either a colorable claim of innocence or strong reasons for seeking to withdraw his guilty plea. Deciding such a motion rests ultimately in the trial court’s sound discretion. Id. at ___ (slip op. at 10) (“[A] plea may only be set aside in the exercise of the court’s discretion.”). We perceive no abuse of the court’s discretion here.



1 Defendant later entered a plea of guilty under that separate indictment. He did not seek to withdraw that guilty plea.

April 14, 2009


Posted on April 15, 2009, in Cases and tagged . Bookmark the permalink. 2 Comments.

  1. I wish I could write this well! great blog thanks.

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