STATE OF NEW JERSEY VS. AHMAD J. MUHAMMAD (17-07-0820, 18-05-0743, AND 18-05-0744, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 12, 2021
• Docket: A-3856-18/A-5278-18
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-3856-18 A-5278-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AHMAD J. MUHAMMAD,

Defendant-Appellant. _______________________

Plaintiff-Appellant/ Cross-Respondent,

Defendant-Respondent/ Cross-Appellant. ________________________ Argued (A-5278-18) and Submitted (A-3856-18)1 January 11, 2021 – Decided March 12, 2021

Before Judges Sabatino, Gooden Brown, and DeAlmeida on A-5278-18.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 17-07- 0820, 18-05-0743 and 18-05-0744.

John P. Flynn, Assistant Deputy Public Defender, argued the cause for appellant/cross-appellant (Joseph E. Krakora, Public Defender, attorney; John P. Flynn, of counsel and on the briefs).

Joie D. Piderit, Assistant Prosecutor, argued the cause for respondent/cross-respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Eric M. Snyder, Assistant Prosecutor, of counsel and on the brief; Joie D. Piderit, on the briefs).

PER CURIAM

These back-to-back appeals and cross-appeal, which we consolidate solely

for purposes of issuing a single opinion, involve defendant's entry of guilty pleas

to offenses charged in unrelated indictments. In Docket No. A-5278-18, the

State appeals from the July 23, 2019 Law Division order denying its motion to

reconsider enforcing a plea agreement the State rescinded prior to its entry on

the record, which agreement involved the dismissal of charges contained in

1 A-3856-18 was submitted before Judges Sabatino and Gooden Brown only.

A-3856-18 2 Indictment Nos. 18-05-0743 and 18-05-0744 (743 and 744). In that appeal, the

State raises the following point for our consideration:

BECAUSE NEW JERSEY COURT RULE 3:9-3(C) EXPLICITLY PROHIBITS A COURT FROM DISMISSING ANY COUNTS OR INDICTMENTS WITHOUT THE CONSENT OF THE PROSECUTOR, THE TRIAL COURT ABUSED ITS DISCRETION BY ENFORCING A PLEA OFFER THAT WAS EXPLICITLY WITHDRAWN WEEKS PRIOR TO BEING ENTERED AND DISMISSING AN ENTIRE INDICTMENT WITHOUT THE STATE'S CONSENT.

In the cross-appeal in Docket No. 5278-18, defendant appeals from the

motion judge's December 11, 2018 decision denying his motion to suppress the

evidence seized following a motor vehicle stop, which evidence formed the

evidential basis for 743 and 744. In that cross-appeal, defendant raises the

following point for our consideration:

ALL THE EVIDENCE SEIZED FROM THE CAR SHOULD HAVE BEEN SUPPRESSED BECAUSE THE OFFICER IMPERMISSIBLY EXTENDED THE SCOPE OF THE TRAFFIC STOP BEFORE ALLEGEDLY SEEING A GUN.

In Docket No. A-3856-18, defendant appeals from the December 13, 2018

Law Division order denying his pre-sentence motion to withdraw his guilty plea

and the April 4, 2019 conforming judgment of conviction (JOC) imposing the

A-3856-18 3 negotiated sentence in connection with Indictment Nos. 17-07-0820 and 17-07-

0821. Defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [DEFENDANT]'S MOTION TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING BECAUSE WITHDRAWAL WAS IN THE "INTERESTS OF JUSTICE" UNDER RULE 3:9- 3(E).

POINT II

IF [DEFENDANT]'S PLEA IS NOT VACATED, THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE COURT IGNORED MITIGATING FACTORS PRESENT IN THE RECORD AND INAPPROPRIATELY IMPOSED CONSECUTIVE SENTENCES FOR OFFENSES ARISING FROM THE SAME CONDUCT.

For the reasons that follow, in Docket No. A-5278-18, we affirm in both the

appeal and the cross-appeal. In Docket No. A-3856-18, we affirm defendant's

convictions and sentence but remand solely for correction of the JOC.

I.

A. Docket No. A-3856-18 Overview

A-3856-18 4 In Docket No. A-3856-18, on July 20, 2017, defendant was charged in

Middlesex County Indictment No. 17-07-0820 with first-degree maintaining a

controlled dangerous substance (CDS) production facility, N.J.S.A. 2C:35 -4

(count one); third-degree fortifying a CDS production facility, N.J.S.A. 2C:35-

4.1(c) (count two); third-degree possession of CDS, namely heroin, with intent

to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count three); third-degree

possession of CDS, namely marijuana, with intent to distribute, N.J.S.A. 2C:35 -

5(a)(1), (b)(11) (count four); fourth-degree possession of drug paraphernalia

with intent to distribute, N.J.S.A. 2C:36-3 (count five); three counts of second-

degree possession of a firearm during a CDS offense, N.J.S.A. 2C:39 -4.1(a)

(counts six, seven, and eight); and three counts of second-degree possession of

a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts nine, ten, and

eleven). On the same date, July 20, 2017, defendant was charged in Middlesex

County Indictment No. 17-07-0821 with three counts of second-degree certain

persons not to have weapons, N.J.S.A. 2C:39-7(b), (counts one, two, and three),

arising from the same incident.

The charges stemmed from the execution of a search warrant on July 7,

2016, for defendant's person and residence located in Piscataway. The search

warrant affidavit submitted in support of the application averred that there was

A-3856-18 5 "probable cause to believe" that defendant was "utilizing the [Piscataway]

premises . . . to store and distribute . . . methylenedioxymethamphetamine

(MDMA)" and sought authorization to seize "[CDS], monies, paperwork,

paraphernalia" and other items related to narcotics trafficking. In support, the

affidavit detailed an extensive undercover investigation initiated after the affiant

received a tip from a confidential informant (CI) about defendant's drug dealing

activities.

The affidavit specified that although the CI was "providing information to

[law] enforcement for the first time," during the course of the investigation, the

CI purchased suspected MDMA "directly from [defendant]" at the residence on

three separate occasions. The affiant sought a "no-knock warrant" due to "an

elevated risk to officer safety" based on defendant's "extensive criminal history"

which included "firearms/weapons related offenses," the CI's observation of

defendant repeatedly "display[ing] a handgun" at the residence, and the presence

of "surveillance cameras on the exterior of the residence and front door" to

detect people approaching.

The search resulted in the seizure of approximately two-and-one-half

grams of heroin; over one ounce of marijuana; a .40 caliber handgun with two

magazines; a .44 caliber revolver; a 12-gauge shotgun; a stun gun; multiple

A-3856-18 6 boxes of ammunition; a bulletproof vest; assorted drug paraphernalia, including

packaging materials, heat sealers, digital scales, a blender; and mail addressed

to defendant at the Piscataway residence. No MDMA was recovered.

Defendant was arrested and gave an incriminating statement after he was

administered Miranda2 warnings. In the statement, defendant admitted selling

drugs at the Piscataway residence, but not as much as he had in the past. He

acknowledged possessing all of the contraband seized from the residence and

explained the source of some of the items, particularly the firearms, their

location in the house, and the extent of his drug inventory. He stated he moved

out of his parents' house and had been renting and living at the Piscataway

residence since "December" because he needed more room with his other

businesses.3 Defendant expressly exonerated the other occupants of the

residence of any wrongdoing, specifically his brother and his roommate.

On February 9, 2018, defendant entered a negotiated guilty plea to three

counts of Indictment No. 17-07-0820: maintaining a CDS production facility

(count one); fortifying a CDS production facility (count two); and possession of

a firearm for an unlawful purpose (count nine). Under the terms of the plea

2 Miranda v. Arizona, 384 U.S. 436 (1966). 3 Defendant stated that he had a T-shirt, a photography, and a music business. A-3856-18 7 agreement, the State agreed to recommend an aggregate sentence of seventeen

years' imprisonment, with nine-and-one-half years of parole ineligibility, and

move to dismiss the remaining counts of Indictment No. 17-07-0820 as well as

Indictment No. 17-07-0821 in its entirety. After entering the plea, defendant,

who was not detained at the time, requested an extended sentencing date to get

his affairs in order. The trial judge granted defendant's request and scheduled

sentencing for June 1, 2018.

However, on March 12, 2018, defendant filed a pro se motion and

supporting brief to withdraw his guilty pleas, claiming "ineffective counsel, lack

of evidence[,] and probable cause among other things." Notably, in his pro se

submission, defendant did not assert his innocence. Defendant was assigned

new counsel who submitted a brief and supporting certification "assert[ing

defendant's] innocence" and detailing legal challenges and defenses overlooked

by prior counsel but uncovered during her investigation of the case.

Specifically, defense counsel explained that defendant had a reasonable basis to

challenge the probable cause underlying the issuance of the search warrant based

on the unreliability of the CI and the absence of independent corroboration.

Further, according to defense counsel, the fact that defendant did not own the

residence as well as the fact that other residents and business invitees had

A-3856-18 8 "access to the premises where drugs and weapons were located" would "support

a defense to the charges."

Additionally, defense counsel asserted defendant had "a reasonable basis"

to "challenge his understanding of the [Miranda] warnings" that preceded his

confession as well as the knowing and intelligent nature of his guilty plea based

on "a learning disability that impacts [defendant's] ability to comprehend and

process information appropriately." In support, defense counsel provided a June

12, 1996 neuropsychological examination conducted when defendant was

twenty-two years old in connection with his participation in the intensive

supervision program (ISP) on unrelated charges. While the evaluation found

defendant's "general reasoning and thinking capacity [to be] good," defendant

was diagnosed with a "Learning Disorder Not Otherwise Specified" based on a

"[v]erbal-memory deficit."

Following oral argument, the judge denied the motion and entered a

memorializing order on December 13, 2018. In an oral opinion rendered on

December 11, 2018, the judge analyzed each of the four factors enunciated in

State v. Slater, 198 N.J. 145, 157-58 (2009): "(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)

A-3856-18 9 whether withdrawal would result in unfair prejudice to the State or unfai r

advantage to the accused."

As to the first Slater factor, after reviewing the "statements . . . made by

other people in support of th[e] application," the judge determined there was no

"competent evidence" establishing that other people had the ability to exercise

"ownership or . . . control" over the contraband. Thus, the judge rejected

defendant's claim that the "mere presence" of other individuals at the residence

amounted to a colorable claim of innocence. The judge also noted that "[c]ourts

generally evaluate a colorable claim of innocence by determining whether it

raises a legitimate dispute for the jury to decide," not legal issues such as those

implicated in defendant's challenge to the search warrant or the voluntariness of

his confession.

Turning to the second Slater factor, the judge acknowledged that

"defendant would likely satisfy this factor if he [could] make a plausible

showing of a valid defense against the charges and credibly explain why an

otherwise legitimate defense was overlooked during the plea colloquy."

However, the judge rejected defendant's claim that his challenge to the search

warrant satisfied the second prong, explaining that the supporting affidavit

detailing "three controlled buys" by the CI directly from defendant established

A-3856-18 10 the requisite probable cause for the issuance of the warrant. See State v.

Sullivan, 169 N.J. 204, 217 (2001) ("The two controlled drug purchases, as well

as the additional police corroboration of the informant's tip, sufficiently

demonstrated probable cause . . . to obtain the [search] warrant."); State v.

Keyes, 184 N.J. 541, 556 (2005) ("Although no corroborating fact, by itself,

conclusively establishes probable cause, a successful controlled buy typically

will be persuasive evidence in establishing probable cause.") (citations and

internal quotation marks omitted). Moreover, according to the judge,

defendant's two-year delay in challenging the search warrant weighed against

him.

As to the third Slater factor, the judge acknowledged that "this factor

should [not] be given great weight in the balanc[ing] . . . process" because "the

vast majority of criminal cases are resolved through plea bargains."

Additionally, the judge was satisfied that "the plea was entered into freely,

knowingly, voluntarily, and intelligently" and rejected defendant's contention

that the 1996 neuropsychological examination undermined the validity of

defendant's plea. On the contrary, the judge explained that based on his "clear

recollection that . . . defendant understood everything that was going on during

the plea" as well as an "independent evaluation of the [plea] transcript,"

A-3856-18 11 a [twenty]-year-old evaluation [was] not adequate to overcome the presumption that the [c]ourt's determination based on its ability to observe . . . defendant enter the plea in February of 2018 and making the determination that it was voluntarily made [was] incorrect. More importantly, . . . defendant's own statement at the plea hearing show[s] that he adequately understood the nature of the plea and the proceedings.

Regarding the fourth and final Slater factor, because the judge could not

find "that there [would be] any meaningful prejudice to the State or . . . unfair

advantage to . . . defendant if the plea was vacated," the judge determined "the

fourth prong . . . would weigh in [defendant's] favor." Nonetheless, "based on

the totality of the circumstances," the judge concluded "that the reasons to not

vacate the plea . . . far outweigh[ed] the reasons advanced to vacate the plea."

"Ultimately, '[the judge] believe[d] that th[e] application to vacate the plea [was]

nothing more than . . . buyer's remorse.'"

Following the denial of the plea withdrawal motion, over defense

counsel's objection, the prosecutor requested that defendant be sentenced that

day. The judge denied the prosecutor's request and postponed the sentencing to

allow defense counsel to submit a sentencing memo. On March 25, 2019,

defendant was sentenced in accordance with the plea agreement, and this appeal

followed.

A-3856-18 12 B. Slater Issues

On appeal, defendant argues the judge mistakenly exercised his discretion

in "weigh[ing] factors one and two" of the Slater test. According to defendant,

"there were viable grounds to challenge the probable cause supporting the search

warrant" and "seek suppression of all the evidence," as well as "evidence that

other people . . . liv[ed] in" and "visited the [Piscataway] residence" to establish

"shared access" where "[s]ome of the contraband was recovered." Defendant

continues that "[w]hen judged under the liberal standard governing pre-

sentencing withdrawal motions, these defenses were colorable" and his

ineffective assistance of counsel claim "credibly showed why these potential

defenses were overlooked" by prior counsel.

Unquestionably, "[a] more relaxed standard applies to plea-withdrawal

motions made before sentencing" than after sentencing. State v. Munroe, 210

N.J. 429, 441 (2012). "Before sentencing, a 'defendant shall be permitted to

withdraw' a guilty plea if 'the interests of justice would not be served by

effectuating the [plea] agreement.'" Ibid. (alteration in original) (quoting R. 3:9-

3(e)). "In such cases, 'courts are to exercise their discretion liberally to allow

A-3856-18 13 plea withdrawals,'" and "[i]n a close case, the 'scales should usually tip in favor

of defendant.'" Ibid. (quoting Slater, 198 N.J. at 156).

"However, [l]iberality in exercising discretion does not mean an

abdication of all discretion, and, accordingly, any plea-withdrawal motion

requires a fact-specific analysis[.]" Id. at 441-42 (first alteration in original)

(citations and internal quotation marks omitted). Thus, "[o]n appellate review,

the issue is whether the trial court properly exercised its discretion at the time it

denied the withdrawal motion," and an abuse of discretion only arises "when

'there has been a clear error of judgment.'" Id. at 443, 448 (quoting State v.

Koedatich, 112 N.J. 225, 313 (1988)).

In a plea withdrawal motion, the defendant bears the burden of

establishing and demonstrating "'a plausible basis for his request' and a good-

faith basis for 'asserting a defense on the merits.'" Id. at 442 (quoting Slater,

198 N.J. at 156). In evaluating the first Slater factor, "[a] colorable claim of

innocence is one that rests on 'particular, plausible facts' that, if proven in court,

would lead a reasonable factfinder to determine the claim is meritorious."

Munroe, 210 N.J. at 442 (quoting Slater, 198 N.J. at 158-59). While "[i]t is

more than '[a] bare assertion of innocence,' . . . the motion judge need not be

convinced that it is a winning argument because, in the end, legitimate factual

A-3856-18 14 disputes must be resolved by the jury." Ibid. (quoting Slater, 198 N.J. at 158).

However, the trial judge must still distinguish between "a colorable claim of

innocence" and a "bald assertion." State v. Lipa, 219 N.J. 323, 333-34 (2014).

Doing so requires a judge to engage in some weighing of evidence to determine

whether facts are "credible" or "plausible." Ibid.

As to the second Slater factor, "[t]he nature and strength of a defendant's

reasons for withdrawal of a plea will necessarily depend on the circumstances

peculiar to the case." Munroe, 210 N.J. at 442. "A defendant will likely satisfy

this factor if he can make a 'plausible showing of a valid defense against the

charges' and credibly explain why an otherwise legitimate defense was

overlooked during the plea colloquy." Id. at 443 (quoting Slater, 198 N.J. at

159-60).

A court should evaluate the validity of the reasons given for a plea withdrawal with realism, understanding that some defendants will be attempting to game the system, but not with skepticism, for the ultimate goal is to ensure that legitimate disputes about the guilt or innocence of a criminal defendant are decided by a jury.

[Ibid.]

We divine certain principles applicable to the analysis of the first and

second Slater factors from our Supreme Court's decisions in Slater, Munroe, and

Lipa, where the Court reversed the trial courts' decisions denying the defendants'

A-3856-18 15 respective pre-sentence plea withdrawal motions. In Slater, the defendant pled

guilty to possession with intent to distribute cocaine after police discovered

drugs and a scale in a motel room he occupied. 198 N.J. at 152. Less than two

weeks later, Slater sought to withdraw his plea, asserting that he had not rented

the motel room; he was just visiting; he was unaware the drugs were in the room;

and the drugs did not belong to him. Id. at 152-53. Slater's account was

supported by the record evidence that the police approached the motel room in

search of two white men who allegedly possessed cocaine, but Slater was

African American. Id. at 151-52, 163. Also, the State failed to disprove Slater's

claim that he did not rent the room and was only visiting. Additionally, Slater

asserted his innocence claim both in his pro se plea withdrawal motion and in

remarks he made for inclusion in the presentence report. Id. at 163.4

In Munroe, the defendant pled guilty to aggravated manslaughter but

supported a self-defense claim with evidence that the victim, "who had robbed

him in the past," threatened him with a knife and a parked car blocked the

defendant's retreat. 210 N.J. at 445. A police report confirmed that the deceased

4 Here, although defendant expressed his desire "to make a motion to withdraw his plea" in the presentence report, he never expressly asserted his innocence to the charges. While he admitted being a "felon" and having "a vest, holster and gun in a book bag," he claimed "he was coerced into saying things about the manufacturing facility and fortified premises." A-3856-18 16 victim was found with a box cutter in his hand, and the State presented no

witness statements contradicting Munroe's claim he had no room to retreat. Id.

at 445-47. The Court found Munroe's admission in his initial plea colloquy that

he shot the victim at close range was not inconsistent with his later claim of self -

defense. Id. at 445. "[N]ot a word that defendant uttered in court during his

plea colloquy was inconsistent with either the account that he gave to t he

probation officer who prepared his presentence report or his sworn testimony

when he moved to withdraw his guilty plea." Ibid.

In Lipa, the defendant pled guilty to first-degree aggravated sexual

assault. Id. at 326. To support his plea withdrawal motion, he presented

photographic evidence of his knee, which was operated on around the time the

crime was committed, as well as photographs of the exterior of the subject

building, to establish that it was impossible for him to climb into the victim's

second-floor bedroom window, as she had alleged. Id. at 333. The Court noted

that because the victim asserted that Lipa "was inebriated" when he committed

the offenses, "[h]is condition thus would have further hampered his ability to

commit the assault in the manner [the victim] described." Ibid. Lipa also

presented evidence that "a [Division of Youth & Family Services] investigation

A-3856-18 17 found that [the victim's] previous accusations of sexual assault against [the]

defendant and a family friend lacked merit." Ibid.

"[M]indful that the admissibility and veracity of [the] defendant's

evidence ha[d] not been tested," the Court determined "the specific facts that

[the] defendant asserted could provide a plausible basis to impeach [the victim's]

testimony and cause a reasonable jury to find reasonable doubt as to [the]

defendant's guilt." Id. at 334. Further, the Court found that the defendant

"presented sufficient reasons to support his request for withdrawal" by

"claim[ing] that his counsel induced him to plead guilty" and by "offer[ing]

some evidence that contradicts the State's charges." Id. at 335.

We draw from these cases the principle that in order to establish the first

Slater factor, evidence corroborating a defendant's claim of innocence must

support the claim's plausibility, as does the State's failure to present evidence on

easily verifiable facts that would undermine the defendant's innocence claims.

Through this lens, we are satisfied defendant's proffer fails to establish the

"colorable claim of innocence" standard countenanced in Slater, Munroe, and

Lipa. Defendant also failed to establish the second Slater factor, which

"dovetails with his assertion of innocence," and requires a "showing of a valid

defense against the charges." 198 N.J at 159-60, 163. We conclude substantially

A-3856-18 18 for the sound reasons expressed by the judge in his oral decision that defendan t

failed to show that enforcement of the plea agreement would be contrary to the

interests of justice. Hence, the judge did not abuse his discretion in rejecting

defendant's request to withdraw his guilty plea.

C. Sentencing Arguments

In the alternative, defendant argues that his sentence, which was the

sentence recommended under the terms of the plea agreement, should be reduced

because the judge ignored "mitigating factors supported by the record" and

failed to "address[] the Yarbough[5] factors when imposing consecutive

sentences."

We review sentences "in accordance with a deferential standard," State v.

Fuentes, 217 N.J. 57, 70 (2014), and "note that appellate courts should not

'substitute their judgment for those of our sentencing courts.'" State v. Cuff, 239

N.J. 321, 347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we

will

affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the]

5 State v. Yarbough, 100 N.J. 627 (1985). A-3856-18 19 case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Fuentes, 217 N.J. at 70 (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

"While the sentence imposed must be a lawful one, the court's decision to impose

a sentence in accordance with the plea agreement should be given great respect,

since a 'presumption of reasonableness . . . attaches to criminal sentences

imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71

(App. Div. 1996) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)).

"The plea agreement can appropriately be considered and weighed in the

decision to impose consecutive sentences." Ibid. "That said, a trial court is

expected to give 'a separate statement of reasons for its decision to impose

consecutive sentences.'" State v. Molina, 168 N.J. 436, 442 (2001) (quoting

State v. Miller, 108 N.J. 112, 122 (1987)). Certain considerations govern a trial

court's decision to impose consecutive sentences, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

A-3856-18 20 (d) any of the crimes involved multiple victims; [and]

(e) the convictions for which the sentences are to be imposed are numerous.

[State v. Molina, 168 N.J. 436, 441-42 (2001) (quoting Yarbough, 100 N.J. at 644).]

Here, the judge found aggravating factors three, six, and nine based on

defendant's extensive prior criminal record in both New Jersey and New York.

See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that . . . defendant will commit another

offense"); N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of . . . defendant's prior criminal

record and the seriousness of the offenses of which he has been convicted"); and

N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring . . . defendant and others from

violating the law"). According to the judge, defendant's record exhibited

"criminal behavior . . . throughout his adult life," including three indictable and

two municipal court convictions in New Jersey alone for both violent and non-

violent offenses for which defendant served multiple prison terms.6

The judge also determined there were no mitigating factors, rejecting

defendant's reliance on mitigating factors four, nine, and eleven. See N.J.S.A.

6 The State "bargained away its right to seek a mandatory extended term [under N.J.S.A. 2C:43-6(f)] as a part of its negotiated plea agreement with defendant." State v. Courtney, 243 N.J. 77, 88-89 (2020). A-3856-18 21 2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or justify the

defendant’s conduct, though failing to establish a defense"); N.J.S.A. 2C:44-

1(b)(9) ("[t]he character and attitude of the defendant indicate that the defendant

is unlikely to commit another offense"); and N.J.S.A. 2C:44-1(b)(11) ("[t]he

imprisonment of the defendant would entail excessive hardship to the

defendant").

Notwithstanding the overwhelming aggravating factors and dearth of

mitigating factors, the judge found that the plea agreement was "fair and

reasonable" and sentenced defendant in accordance with its terms. The judge

imposed a twelve-year term of imprisonment, with a seventy-two-month period

of parole ineligibility, on count one; a consecutive five-year term of

imprisonment with a forty-two-month period of parole ineligibility, on count

nine;7 and a concurrent flat five-year term of imprisonment on count three.

In imposing a consecutive sentence, the judge explained:

As to [c]ount [nine], the sentence is to be consecutive . . . . [I]n this case, [c]ount [one] deals with the issue of packaging and distribution of a [CDS]. The harm to society is obviously the continued illegal proliferation of drugs and has a significant negative impact on society.

7 The sentence imposed on count nine was the minimum legally authorized sentence. See N.J.S.A. 2C:43-6(c). A-3856-18 22 As to [c]ount [nine], that deals with handguns and this crime deals with the danger that is posed to society for the possession of handguns by persons not trained to handle a handgun or not licensed to possess a handgun. So, the harm to society between [c]ount [one] and [c]ount [nine] are significantly different. The dates of the offense[s] are different. The nature of the crimes are different and the harm to society is different. So as a result, this fits precisely into the definition of how this [c]ourt reads the Yarbough criteria.

Defendant argues that because the proffered mitigating factors were

supported by his "history of substance abuse," "documented cognitive

limitations," and "significant back problems," as well as "character letters

reflecting . . . [his] positive attributes," the judge erred in "fail[ing] to fairly

consider" them. However, our caselaw does "not require . . . that the trial court

explicitly reject each and every mitigating factor argued by a defendant"

particularly when "we can readily deduce from the sentencing transcript" that

the judge "was mindful of and did consider the mitigating factors urged for

defendant." State v. Bieniek, 200 N.J. 601, 609 (2010).

Here, based on the judge's finding of the applicable aggravating factors,

we discern no abuse of discretion in the judge's rejection of the proffered

mitigating factors. See id. at 610 (noting that the applicability of aggravating

factor three undermines a finding of mitigating factor nine); State v. Ghertler,

114 N.J. 383, 390 (1989) (rejecting "defendant's contention that his drug

A-3856-18 23 dependency should be considered a mitigating factor"); State v. Wilson, 421 N.J.

Super. 301, 312 (App. Div. 2011) (upholding the trial court's determination that

mitigating factor eleven based on a medical condition was inapplicable in the

absence of any evidence that satisfactory medical treatment was unavailable in

prison).

Defendant also contends the judge abused his discretion by imposing

consecutive sentences on counts one and nine. While we agree that, contrary to

the judge's statement, the dates of the offenses were the same, we are nonetheless

satisfied that the imposition of a consecutive sentence comports with Yarbough

and is supported by the judge's finding that the crimes have different objectives

and inflict different harms upon society. Indeed, the Yarbough factors "should

be applied qualitatively, not quantitatively" and "a sentencing court may impose

consecutive sentences even though a majority of the Yarbough factors support

concurrent sentences." State v. Carey, 168 N.J. 413, 427-28 (2001).

Applying our deferential standard of review, we are satisfied that the

judge's findings are amply supported by the record, that the sentence comports

with the guidelines enunciated in the Code of Criminal Justice, and that the

aggregate sentence does not reflect an abuse of discretion or shock our judicial

conscience. However, because the judgment of conviction incorrectly recites

A-3856-18 24 the sentence,8 we remand for the JOC to be corrected to reflect the oral sentence

pronounced by the judge. See State v. Abril, 444 N.J. Super. 553, 564 (App.

Div. 2016) ("In the event of a discrepancy between the court's oral

pronouncement of sentence and the sentence described in the [JOC], the

sentencing transcript controls and a corrective judgment is to be entered.").

II.

A. Docket No. A-5278-18 Overview

In Docket No. A-5278-18, on May 11, 2018, while Indictment Nos. 17-

07-0820 and 17-07-0821 were still pending, defendant was charged in

Middlesex County Indictment No. 18-05-0743 with first-degree unlawful

possession of a weapon, a .45 caliber handgun, N.J.S.A. 2C:39-5(b), 2C:39-5(j)

(count one); fourth-degree unlawful possession of a weapon, a buck knife,

N.J.S.A. 2C:39-5(d) (count two); third-degree possession of CDS, oxycodone,

N.J.S.A. 2C:35-10(a)(1) (count three); fourth-degree possession of CDS,

hashish, N.J.S.A. 2C:35-10(a)(3) (count four); third-degree possession of CDS

8 Contrary to the oral sentence, the JOC states as follows: on count two, defendant is sentenced to a five-year term of imprisonment with a forty-two- month period of parole ineligibility "to run consecutive to the sentence imposed on [c]ount [one,]" and, on count nine, to a five-year term of imprisonment with a forty-two month period of parole ineligibility "to run concurrent to the sentence imposed on [c]ounts [one and two]." A-3856-18 25 with intent to distribute, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(3) (count five);

second-degree possession of a firearm while engaged in drug distribution,

N.J.S.A. 2C:39-4.1 (count six); third-degree receiving stolen property, a .45

caliber handgun, N.J.S.A. 2C:20-7 (count seven); and fourth-degree possession

of handgun ammunition, N.J.S.A. 2C:58-3.3 (count eight). On the same date,

May 11, 2018, defendant was charged in Middlesex County Indictment No. 18-

05-0744 with second-degree certain persons not to have weapons, N.J.S.A.

2C:39-7(b)(1) (count one), and fourth-degree certain persons not to have

weapons, N.J.S.A. 2C:39-7(a) (count two), arising from the same incident.

The charges arose from a motor vehicle stop conducted on February 21,

2018, twelve days after defendant pled guilty to offenses charged in Indictment

No. 17-07-0820 and was awaiting sentencing. During the stop, police seized a

handgun and other contraband from defendant's vehicle. As a result of the new

charges, defendant was detained. Defendant moved to suppress the evidence

seized during the February 21 motor vehicle stop, and the judge conducted an

evidentiary hearing on October 12 and December 11, 2018, after which the judge

denied the motion in an oral decision placed on the record on December 11,

2018.

A-3856-18 26 On the same date, December 11, 2018, the judge denied defendant's

motion to withdraw his guilty plea in connection with Indictment No. 17-07-

0820 and scheduled sentencing on that indictment as well as a status conference

on the new indictments for January 25, 2019. The prosecutor indicated on the

record that in the interim, she would e-mail the new plea offer on the new

indictments to defense counsel as the prior offer had expired with the

adjudication of the suppression motion.

When the parties appeared on January 25, 2019, defense counsel requested

an adjournment of the sentencing on Indictment No. 17-07-0820 because

defendant had "a doctor's appointment" with "a pain specialist" scheduled for

February 1, 2019, at the county jail to address his "serious back issues." Defense

counsel explained that after a long wait, defendant had finally obtained

"approval" for a specialist to evaluate him at the jail and he would miss his

appointment if he was sentenced because he would be transferred to the custody

of the Department of Corrections. Over the State's objection, the judge

acknowledged that the "delay" in resolving Indictment No. 17-07-0820 was

attributable to "defendant wanting to vacate his guilty plea," but granted the

adjournment request, finding no "meaningful prejudice . . . to the State by

A-3856-18 27 delaying the sentencing a little bit in order for the doctor's appointment to occur

as scheduled."

Turning to the new indictments that are the subjects of this appeal, defense

counsel indicated that defendant had accepted the State's offer, had signed the

paperwork, and was prepared to resolve the cases in accordance with the agreed

upon terms. According to defense counsel, those terms required defendant to

plead guilty to count one of Indictment No. 18-05-0744 in exchange for a

sentencing recommendation of five years' imprisonment, with a five-year period

of parole ineligibility, to run consecutive to his sentence on Indictment No. 17-

07-0820, and dismissal of count two of Indictment No. 18-05-0744 as well as

Indictment No. 18-05-0743 in its entirety.

However, because the judge had granted defendant's request to adjourn

the sentencing on Indictment No. 17-07-0820, the State indicated that it was

rescinding the plea offer on Indictment Nos. 18-05-0743 and 18-05-0744 on the

ground that the offer contemplated "the resolution" of all the cases that day.

Defense counsel protested that under the terms of the plea agreement, "[t]here

was no stipulation . . . that [defendant] had to be sentenced today."

Acknowledging that during "a conference in chambers," the prosecutor stated

"that the plea offer was contingent upon the matter being globally resolved

A-3856-18 28 today," the judge directed defense counsel to "file [a] motion to enforce the plea

agreement" and permitted the prosecutor "to put under [her] signature" on the

plea form, "offer rescinded by State."

On March 11, 2019, defendant filed a motion to enforce the plea

agreement on Indictment Nos. 18-05-0743 and 18-05-0744, which the State

opposed. The parties appeared on March 25, 2019, for sentencing on Indictment

No. 17-07-0820 and oral argument on the motion. The judge granted defense

counsel's request for an adjournment of the motion but proceeded to sentence

defendant on Indictment No. 17-07-0820.

Thereafter, oral argument on the motion was conducted on May 24, 2019,

during which the parties placed their respective positions on the record.

Defendant asserted that "once the plea form was signed" by all the parties, which

execution occurred before the conference in chambers regarding a global

resolution, there "was an enforceable contract" and "the condition of when

sentencing was to occur [was] ancillary to that contract" and "[was] not a

material element of the contract." Further, defendant argued that "there [was]

no provision under the caselaw or the rules that allow[ed] the State to rescind

its offer once it[] entered into an agreement."

A-3856-18 29 The prosecutor countered that there was no enforceable agreement

because by requesting an adjournment of the sentencing on Indictment No. 17-

07-0820, defendant reneged on "a material term" of the agreement. When asked

by the judge why the sentencing on other charges "was so essential to the State,"

the prosecutor responded:

Resources. My office has limited resources. The more times that we have to come back, the more files that we have to carry, the more times we have to be prepared for trial, it's a zero[-]sum game. That means it's to the exclusion of some other file or some other matter we can be doing.

Further, for the first time, the prosecutor stated that if defendant's motion was

granted, "the State would[ not] participate . . . in th[e] plea," and "would not

consent to any dismissals of anything." Thus, according to the prosecutor, any

dismissals would be in violation of Rule 3:9-3(c), which "explicitly [states that]

the [c]ourt does not have the authority to dismiss any counts without the State's

permission."

Following oral argument, the judge granted defendant's motion in an order

entered May 24, 2019. In an oral decision on the record, initially, the judge

posited that the issue was whether the condition of setting the date for sentencing

on other charges was "an ancillary issue or as argued by the State, . . . a material

issue" so much so that "if the [c]ourt were to excise out the sentencing date," the

A-3856-18 30 "material terms of the plea[ agreement]" would be "alter[ed.]" The judge found

that "the material terms" of the plea agreement were "what . . . defendant [was]

pleading guilty to and what the recommended sentence of the State would be"

which, "under all the facts and circumstances," the judge deemed "fair and

reasonable." Further, the judge concluded that "the condition of the sentencing

date [was] ancillary to the . . . terms of the contractual agreement." Moreover,

according to the judge, "judicial efficiency and overall fairness" militated in

favor of enforcing the plea agreement.

In expressly rejecting the State's proffered reason for attempting to

condition the plea on the sentencing on other charges, the judge explained:

[M]uch of the [State's] reason for wanting to bring this matter to closure had to do with the frustration of the protracted nature of this process, and the [c]ourt can fully understand that in light of what has transpired procedurally with this case . . . .

However, ultimately, the [c]ourt feels as though frustration with the process or the length that it takes is part of what we do in this court system, and sometimes things just do take longer because of an emphasis to always do what is right.

....

The prosecutor also argues that the court date is to promote the effective use of limited prosecutor resources. Once again, the [c]ourt struggles with that line of thinking because there seems to be then a greater

A-3856-18 31 use of prosecutor resources if the matter is . . . returned to the trial calendar.

In addition, the [c]ourt looks at the issue of judicial efficiency. And clearly in this case, the substantive terms . . . were agreeable to both the State and . . . defendant.

See State v. Warren, 115 N.J. 433, 443 (1989) ("The [plea bargaining] system

enables a defendant to reduce penal exposure and avoid the stress of trial while

assuring the State that the wrongdoer will be convicted and punished, and that

scarce and vital judicial and prosecutorial resources will be conserved through

a speedy resolution of the controversy.").

The judge then conducted a plea hearing during which defendant entered

a guilty plea pursuant to the terms of the plea agreement, which was accepted

by the judge in accordance with Rule 3:9-2. However, the State refused to

participate in the plea colloquy and thereby withheld its consent to the

anticipated dismissal of charges as required under the plea agreement at

sentencing. Acknowledging the State's argument raised for the first time during

oral argument on the motion that Rule 3:9-3(c) precluded the court from

dismissing charges without the consent of the prosecutor, the judge suggested

that the State should seek reconsideration of the motion based on the newly

A-3856-18 32 raised legal argument or seek interlocutory relief from the Appellate Division

prior to the scheduled sentencing date.

Thereafter, the State moved for reconsideration. On July 22, 2019, during

oral argument, the State reiterated its prior arguments that under Rule 3:9-3(c),

the court was not authorized "to dismiss any of the counts that the aborted plea

would require." The judge denied the motion in an order filed on July 23, 2019.

In an oral opinion on the record, the judge found that the State failed to meet the

"high standard" for reconsideration because "the State . . . has not presented any

evidence that the decision was palpably incorrect or irrational." See State v.

Puryear, 441 N.J. Super. 280, 294 (App. Div. 2015) (explaining that

reconsideration is only available when "either 1) the [c]ourt has expressed its

decision based upon a palpably incorrect or irrational basis, or 2) it is obvious

that the [c]ourt either did not consider, or failed to appreciate the significance

of probative, competent evidence." (quoting Palombi v. Palombi, 414 N.J.

Super. 274, 288 (App. Div. 2010))).

Further, the judge concluded that

[Rule 3:9-3(c)] does not apply when the dismissal of the charges was pursuant to a negotiated plea agreement. Rather, it appears as though this rule was intended for a situation where the [c]ourt acts unilaterally and especially if there's no legitimate basis for it.

A-3856-18 33 In this case, the [c]ourt did not act unilaterally to dismiss charges, but rather acted pursuant to . . . the plea agreement that the [c]ourt finds was a valid plea agreement . . . .

So that, even though the State is disagreeing that the agreement is enforceable, once the [c]ourt found that it is enforceable, the [c]ourt then [i]s authorized to dismiss the other charges because th[at] was a material term to the plea agreement. [9]

The judge then sentenced defendant in accordance with the terms of the

plea agreement and dismissed count two of Indictment No. 18-05-0744 as well

as Indictment No. 18-05-0743 in its entirety. In the conforming judgment of

conviction entered on August 22, 2019, the judge noted that in order "to insure

that both the appeal rights of the State and . . . [d]efendant [were] fully preserved

regarding decisions made in this matter," the consecutive sentence imposed on

Indictment No. 18-05-0744 was not to be served until defendant "completed his

sentence on Indictment No. 17-07-0820 to allow any direct appeals to be filed

and considered by the Appellate Division."

B. State's Appeal of Enforcement of Plea Agreement

9 The judge also noted that an evidentiary hearing "to make findings of fact [was] not necessary" because "the plea agreement itself [was] the contract" that determined "the terms of the plea agreement." The plea form included in the record corroborates the judge's reasoning. A-3856-18 34 On appeal, the State argues that "[b]ecause no case in New Jersey . . . has

ever countenanced enforcing a plea offer that was explicitly rescinded prior to

its entry" and "because the trial court failed to abide by the applicable court rule

that circumscribes the role trial courts may take in plea negotiations," the State's

motion for reconsideration should have been granted and the plea vacated.

Defendant counters that as a threshold matter, "[t]he State's appeal must be

dismissed for lack of jurisdiction." In support, defendant relies on Rule 2:3-1

which "limits the State's right of appeal to . . . narrow circumstances to comport

with the Double Jeopardy Clauses." Defendant asserts that Rule 2:3-1 does "not

authorize the State's appeal from the order denying reconsideration of the trial

court's decision to enforce the plea agreement" when the State failed to seek

interlocutory review under Rule 2:5-6(a) "before the matter became final" with

the imposition of "a legal sentence."

Substantively, defendant asserts that "[i]n accordance with due process

and contract-law principles, the trial court correctly exercised its discretion to

enforce the plea agreement" because "[a]llowing the State to repudiate a signed,

written plea agreement based on unwritten, immaterial terms would offend due

process, frustrate the legitimate expectations of defendants, and weaken the

plea-bargaining system." Further, according to defendant, enforcing the

A-3856-18 35 agreement "under the circumstances of this case did not run afoul of [Rule 3:9-

3(c)]."

Preliminarily, we reject defendant's contention that the State's appeal must

be dismissed for lack of jurisdiction. Rule 2:3-1 governing appeals by the State

in criminal actions allows the State to "appeal or where appropriate, seek leave

to appeal pursuant to [Rule] 2:5-6(a)," from "a judgment of the trial court

dismissing an indictment, accusation or complaint, where not precluded by the

constitution of the United States or of New Jersey." R. 2:3-1(b)(1). In the past,

we have entertained the State's appeal from trial court orders dismissing

indictments without seeking leave of court. See, eg., State v. Salley, 264 N.J.

Super. 91, 93 (App. Div. 1993) ("The State appeals from the Law Division's

order dismissing an indictment . . . . because the State refused to comply with

an order requiring the police to disclose the identity of a confidential

informant."); State v. Childs, 242 N.J. Super. 121, 125 (App. Div. 1990) ("The

State appeals from an order in which the trial judge dismissed this three-count

State grand jury indictment charging thefts, on the ground that a deputy attorney

general infringed upon the grand jury's independent judgment."); State v.

Merlino, 153 N.J. Super. 12, 14-15 (App. Div. 1977) ("The State appeals from

the order of the Assignment Judge of Mercer County dismissing the indictment

A-3856-18 36 as to all defendants because of the denial of the constitutional right to a speedy

trial."). Here, because the reconsideration order relates back to the judge's order

to enforce the plea agreement, including the attendant dismissals, the practical

effect of the order is the dismissal of an indictment.

We also find that defendant has suffered no deprivation of his

constitutional rights as a result of the State's appeal. The Double Jeopardy

Clause states no person "shall . . . be subject for the same offence to be twice

put in jeopardy of life or limb." U.S. Const. amend. V. Our "state constitutional

double jeopardy protection is coextensive" with the federal doctrine. State v.

Cooper, 307 N.J. Super. 196, 201 (App. Div. 1997). In United States v. Scott,

437 U.S. 82, 96, 99 (1978), the Court explained that although "a defendant once

acquitted may not be again subjected to trial without violating the Double

Jeopardy Clause," that situation is "a far cry from" circumstances where a

criminal defendant sought and obtained the dismissal of charges "against him

on a basis unrelated to factual guilt or innocence of the offense of which he is

accused."

New Jersey courts have consistently applied this same principle, even in

circumstances where a defendant has gone to trial, a jury has been impaneled,

and charges have then been dismissed on grounds unrelated to guilt or

A-3856-18 37 innocence. See, eg., State v. Brito, 345 N.J. Super. 228, 230 (App. Div. 2001)

(holding that where trial court's dismissals of criminal complaints "were, in no

sense, a disposition on the merits of the charges" but rather "on procedural

grounds only," the State was "entitled to appeal" under Rule 2:3-1); State in

Interest of S. Z., 177 N.J. Super. 32, 36 (App. Div. 1981) ("[A] defendant who

chooses to seek termination of proceedings against him on a basis unrelated to

factual guilt of the offense of which he has been accused cannot claim injury

cognizable under the double jeopardy concept if the government is permitted to

appeal from such a ruling . . . ."); State v. Barnes, 84 N.J. 362, 371 (1980)

("Where the proceedings against an accused are terminated during trial on a

basis unrelated to factual guilt or innocence, the State may appeal from a ruling

of the trial court in favor of the defendant without offending the princ iples

expressed in the double jeopardy clause."). Indeed, "[t]he mere commencement

of a case does not automatically entitle a defendant to a bar of further

prosecution." S.Z., 177 N.J. Super. at 36. Rather, "[f]airness and reasonable

expectation in the light of constitutional and common law goals should control,

not technicalities." Ibid.

Additionally, although defendant may face a harsher sentence if the State

prevails in its appeal, "the critical inquiry in assessing whether principles of due

A-3856-18 38 process and double jeopardy bar imposition of a sentence greater than one

initially imposed is whether the defendant maintains a legitimate expectation of

finality with respect to the sentence." State v. Haliski, 140 N.J. 1, 21 (1995)

(internal quotation omitted). "Finality interests arise after the 'final judgment

and commencement of the sentence.'" State v. Thomas, 459 N.J. Super. 426,

433 (App. Div. 2019) (quoting State v. Veney, 327 N.J. Super. 458, 461 (App.

Div. 2000)).

Here, defendant has not commenced serving the sentence at issue. In fact,

the judge explicitly preserved both the State's and defendant's appeal rights by

noting in the JOC that defendant would not serve the sentence in this case until

he had completed serving the sentence imposed on Indictment No. 17-07-0820,

which has not yet occurred. See State v. Rodriguez, 97 N.J. 263, 270 (1984)

("[T]he commencement of sentence coupled with the defendant's expectation of

finality in his original underlying conviction and sentence combined to raise a

constitutional bar against an increase in that sentence." (citing State v. Ryan, 86

N.J. 1, 9-10 (1981))). Moreover, since the underlying conviction is itself the

subject of attack by virtue of defendant's cross-appeal, in which he seeks

invalidation of the seizure of the evidence upon which the charge is predicated,

"no legitimate expectation of finality could be invested in the underlying

A-3856-18 39 conviction[] or the sentence[] related to [it]." Id. at 271. See United States v.

Jerry, 487 F.2d 600, 606 (3d Cir. 1973) ("[W]here a defendant by his own motion

causes the withdrawal of his guilty plea, he has waived his right not to be put in

jeopardy a second time.").

Turning to the substantive argument, the State asserts the judge violated

Rule 3:9-3, which provides in pertinent part:

(a) Plea Discussions Generally. The prosecutor and defense attorney may engage in discussions relating to pleas and sentences and shall engage in discussions about such matters as will promote a fair and expeditious disposition of the case, but except as hereinafter authorized the judge shall take no part in such discussions.

(b) Entry of Plea. When the prosecutor and defense counsel reach an agreement concerning the offense or offenses to which a defendant will plead on condition that other charges pending against the defendant will be dismissed or an agreement concerning the sentence that the prosecutor will recommend, or when pursuant to paragraph (c) the defendant pleads guilty based on indications by the court of the maximum sentence to be imposed, such agreement and such indications shall be placed on the record in open court at the time the plea is entered.

(c) Disclosure to Court. On request of the prosecutor and defense counsel, the court in the presence of both counsel may permit the disclosure to it of the tentative agreement and the reasons therefor in advance of the time for tender of the plea or, if no tentative agreement has been reached, the status of negotiations toward a

A-3856-18 40 plea agreement. The court may then indicate to the prosecutor and defense counsel whether it will concur in the tentative agreement or, if no tentative agreement has been reached and with the consent of both counsel, the maximum sentence it would impose in the event the defendant enters a plea of guilty, assuming, however, in both cases that the information in the presentence report at the time of sentence is as has been represented to the court at the time of the disclosure and supports its determination that the interests of justice would be served thereby. If the agreement is reached without such disclosure or if the court agrees conditionally to accept the plea agreement as set forth above, or if the plea is to be based on the court's conditional indication about the sentence, all the terms of the plea, including the court's concurrence or its indication concerning sentence, shall be placed on the record in open court at the time the plea is entered. Nothing in this Rule shall be construed to authorize the court to dismiss or downgrade any charge without the consent of the prosecutor.

[R. 3:9-3(a) to (c).]

"A plea agreement is . . . governed by contract-law concepts." State v.

Pennington, 154 N.J. 344, 362 (1998). "It requires a meeting of the minds upon

the negotiated pleas and is an executory agreement since it depends on the

approval of the sentencing court." State v. Smith, 306 N.J. Super. 370, 383

(App. Div. 1997).

The essence of a plea agreement is that the parties agree that defendant will plead guilty to certain offenses in exchange for the prosecution's recommendation to dismiss other charges and suggest a certain sentence,

A-3856-18 41 all subject to the right of the court to accept or reject the agreement in the interest of justice.

[State v. Means, 191 N.J. 610, 622 (2007).]

Under basic contract law principles, "[w]hen two parties reach a meeting of the

minds and consideration is present, the agreement should be enforced." Ibid.

While our court Rules expressly authorize a defendant to move to

withdraw a negotiated guilty plea, and we review the trial court's decision on

such an application for abuse of discretion, Munroe, 210 N.J. at 443, "[o]ur

Rules do not contain a corresponding right of the State to withdraw from a plea

agreement." Means, 191 N.J. at 620. Nonetheless, "[i]n proper circumstances

the State may withdraw its agreement after the defendant has accepted," Smith,

306 N.J. Super. at 383, including, for example, when "the prosecutor placed on

the record" that the agreement was contingent on the sentencing court's

acceptance of the plea of multiple defendants and a criminal history report

showing no prior indictable convictions. Id. at 381-82. Significantly, in Smith,

"[e]ach defendant also signed and initialed a plea form indicating that the plea

was based on no prior convictions and contingent on the plea of the co -

defendant." Id. at 382. We held there was no error in the sentencing court's

refusal to enforce the plea agreement when both defendants failed to meet a

specific condition of its terms. Id. at 383.

A-3856-18 42 However, in Means, our Supreme Court held that when "[v]alid

consideration exists to support the agreement," a "unilateral mistake made by

the prosecutor, standing alone," is insufficient "to invalidate the plea

agreement." Id. at 622. There, the mistake made by the prosecutor was the

failure to notify the victims of the plea agreement prior to making the plea offer

to defendant in violation of "the victims' statutory rights and the Attorney

General's guidelines." Id. at 620. After finding "that basis insufficient to vacate

the plea agreement," the Court concluded the trial court erred in "grant[ing] the

State's motion to set aside the plea agreement." Id. at 613, 622. Cf. State v.

Veney, 327 N.J. Super. 458, 459, 461 (App. Div. 2000) (noting that "there is no

reason why the State should not be permitted to withdraw [a plea] offer" before

sentencing based on "an honest mistake" in the calculation of the authorized

Brimage10 plea offer but dismissing the State's appeal of the denial of its plea

withdrawal motion on double jeopardy grounds because the defendant had

"commenced serving the sentence").

Relying on Means, in State v. Conway, 416 N.J. Super. 406, 411 (App.

Div. 2010), we held that the defendant had a right to enforce a plea agreement

"according to its terms, without implying unstated terms favorable to the State

10 State v. Brimage, 153 N.J. 1 (1998). A-3856-18 43 and unfavorable to the defendant." In Conway, "[t]he written plea form, signed

by defendant and the prosecutor, did not list any special conditions set by either

side" and "[a]t no point during the plea hearing did the prosecuting attorney

indicate that the State was conditioning its acceptance of defendant's plea

agreement on the co-defendants entering into plea agreements." Id. at 408-09.

However, a month after the trial judge in Conway accepted defendant's

plea agreement, "when one of the co-defendants opted to go to trial," the State

moved to vacate the agreement, contending "that the plea deal was conditioned

on all defendants pleading guilty," and the judge granted the State's motion "over

defendant's vigorous objection." Id. at 409-10. We reversed, holding that "the

written plea agreement did not state any conditions that would give the State the

right to withdraw from the deal," and "[i]n the absence of any such explicit

condition, defendant had a right to enforce the plea agreement." Id. at 412-13.

See also State v. Salentre, 242 N.J. Super. 108, 111-12 (App. Div. 1990)

(reversing the trial court's decision to vacate a plea agreement based on the

"unarticulated premise" that the agreement was conditioned on all defendants

accepting a plea bargain).

Guided by these principles, we are satisfied that the judge properly

enforced the plea agreement based on the explicit terms of the agreement.

A-3856-18 44 Although the State maintains that the plea agreement was contingent on

sentencing taking place on and no later than January 25, 2019, no such provision

was included in the written agreement executed by both parties. Had such a

term been included and defendant still requested an adjournment of the

sentencing, without question, the State would have been entitled to rescind the

plea agreement based on defendant breaching a material term of the agreement.

See Conway, 416 N.J. Super. at 411 ("Where we have permitted the State to

withdraw from a plea agreement, that relief was premised on the explicit terms

of the agreement.").

We acknowledge the prosecutor's representation on the record that "the

resolution was to get everything resolved today." However, defendant

vehemently disagreed, asserting that "[t]here was no stipulation on this plea

agreement that he had to be sentenced today," and, significantly, no such term

was contained in the duly executed agreement. The judge's recollection from

the in-chambers conference that "the plea offer was contingent upon the matter

being globally resolved today" does not mandate a contrary outcome. In fact,

the judge's recollection has no bearing on the issue given Rule 3:9-3(a)'s

prohibition against courts taking any part in plea negotiations except as

authorized under Rule 3:9-3(c), which does not apply here. See also State v.

A-3856-18 45 Williams, 277 N.J. Super. 40, 47-48 (App. Div. 1994) ("What the trial court

clearly may not do . . . is participate in plea negotiations" or "tender a plea

offer."). To give weight to the judge's representation regarding a contract term

absent from the plea agreement that the defense denied was a condition of the

agreement would be contrary to court rules and case law.

The State also argues that there was no enforceable agreement because it

rescinded the plea offer before it was accepted on the record. Although the rules

contemplate both a plea "agreement" and the "enter[ing]" of a plea by the

defendant on the record, the text of the rules clearly indicate that the

"agreement" and the "enter[ing]" are two separate legal events. See R. 3:9-3(b)

("When the prosecutor and defense counsel reach an agreement . . . such

agreement . . . shall be placed on the record in open court at the time the plea is

entered."); R. 3:9-2 (conditioning the court's acceptance of a guilty plea on

"questioning the defendant personally[] under oath" and "determining . . . that

there is a factual basis for the plea and that the plea is made voluntarily, . . . and

with an understanding of the nature of the charge and the consequences of the

plea"). The significance of the schism is that while there must be both an

enforceable "agreement" and the "enter[ing]" of a plea in order for the agreement

to be effective, the former exists separate and apart from the latter. While the

A-3856-18 46 latter is the subject of court rules, the former is governed by contract principles.

Pennington, 154 N.J. at 362.

Applying contract principles, when defendant accepted the State's offer as

evidenced by the completion and execution of the plea form, containing both

defendant's signature and the signature of the prosecuting attorney as well as the

material terms of the agreement, an enforceable agreement was formed subject

to the entering and the court's acceptance of the plea on the record. Means, 191

N.J. at 612-13. Thus, the State was not justified in relying on an "unstated

term[]" that was not memorialized in the four corners of the agreement to rescind

the plea offer after it was accepted by defendant but before it was formally

entered on the record. Conway, 416 N.J. Super. at 411. See State v. Rosario,

391 N.J. Super. 1, 15 (App. Div. 2007) ("[W]e see no basis in law or equity to

hold that the [State's plea] offer was unenforceable merely because it was not

placed in writing before it was accepted."); see also State v. Chappee, 211 N.J.

Super. 321, 324 (App. Div. 1986) (affirming the judge's refusal to enforce a plea

agreement that was "rescinded" by the State "before it was put on the record and

before [the defendant] accepted or rejected it").

To hold otherwise under the idiosyncratic circumstances of this case

would jeopardize defendant's constitutional rights and would be unfair to

A-3856-18 47 defendant. "[A]lthough notions of fairness apply to each side, the State as well

as the defendant, the defendant's constitutional rights and interests weigh more

heavily in the scale." Warren, 115 N.J. at 443. "Due process concerns as well

inhibit the ability of the prosecutor to withdraw from a guilty plea." Id. at 445.

See State v. Antieri, 186 N.J. Super. 20, 25 (App. Div. 1982) (affirming the

judge's refusal "to order specific performance of the rejected plea agreement"

after it was entered on the record because "[t]here [was] nothing in the record

which indicate[d] that there was any impropriety in the prosecutor's withdrawal

of the plea agreement" and the judge's reasons supported "his rejection of the

proposed plea agreement as well"). Notably, defendant presented to the judge a

legitimate need to attend a long-awaited medical appointment, while the

prosecutor asserted concerns of mere inconvenience in returning on a later date.

We also reject the State's contention that the judge violated Rule 3:9-3(c)

by dismissing charges without the State's consent. Rule 3:9-3(c) applies to

situations where "the judge does not react favorably to the 'tentative agreement'

or the maximum sentence acceptable to defendant for the offense to which

defendant offers a plea." Salentre, 275 N.J. Super. at 419-20. Rule 3:9-3(c) did

not apply here. The judge did not take part in the "plea discussions," "modify[

a] guilty plea . . . or fashion[ a] disposition . . . when there [was] no basis to

A-3856-18 48 accept the plea offered." Id. at 419 (quoting State v. Barboza, 115 N.J. 415, 422

(1989)). Instead, because there was an enforceable negotiated plea agreement,

once the plea was entered on the record and accepted by the judge as fair and

reasonable, the judge properly dismissed the remaining count of Indictment No.

18-05-0744 as well as Indictment No. 18-05-0743 in its entirety at sentencing

as contemplated under the express terms of the agreement. Accordingly, we

discern no abuse of discretion in the judge's denial of the State's motion for

reconsideration in this distinctive setting. See State v. Washington, 453 N.J.

Super. 164, 187 (App. Div. 2018) (reviewing the trial court's denial of

reconsideration for "abuse of discretion").

C. Defendant's Cross-Appeal of the Denial of the Suppression Motion

In the cross-appeal, defendant argues the judge erred in finding "the plain

view exception to the warrant requirement" justified "the discovery of the

handgun" because the officer "had unlawfully extended the traffic stop without

reasonable suspicion" and "thus was not lawfully in the viewing area when he

allegedly saw the gun." According to defendant, the other items seized "should

also have been suppressed as fruit of the poisonous tree."

At the suppression hearing conducted on October 12 and December 11,

2018, Piscataway Township Patrolman Robert Yulich testified that while on

A-3856-18 49 routine patrol at approximately 3:00 a.m. on February 21, 2018, he observed

defendant fail to stop at a stop sign and fail to use a turn signal. He also observed

defendant "swerve[] over the fog line," 11 "fail . . . to stop at the red light," turn

"without signaling" on two more occasions, almost crash into a barrier, and

exceed the speed limit. Yulich then activated his lights and siren, which also

activated his mobile video recorder (MVR),12 and pulled defendant over after

"notif[ying] Dispatch of a motor vehicle stop."

With the spotlight from his patrol car shining on defendant's vehicle,

Yulich first approached on the "passenger side of the vehicle," tapped on the

window, and asked defendant for his "license, registration, and . . . insurance

card." Initially, defendant gave Yulich "his entire wallet" but then removed "a

[S]tate [identification card]" from the wallet and handed it to Yulich while "he

continued looking for the [other] documents." Suspecting that defendant was an

unlicensed or impaired driver, Yulich moved to "the driver's side of the vehicle"

where defendant handed him "a Walmart receipt" and a rental agreement for the

vehicle.

11 "The fog line is a solid white line on the right-hand side of the road." 12 The MVR was admitted into evidence and viewed by the judge during the hearing. A-3856-18 50 At that point, because defendant had "bloodshot, watery eyes," which are

indicators of impaired driving, Yulich asked defendant "for the vehicle's keys"

so that he could not "drive . . . away." While defendant "leaned to the right" to

look for the keys,13 "his left leg lifted up" and Yulich observed "part of a

handgun barrel sticking out from under [defendant's] leg." Yulich recognized

the gun from his experience as a police officer as well as prior experience in the

military.

Without informing defendant of his observation, Yulich tried to open the

driver door, but it was locked. Yulich then ordered defendant to open the door

and exit the vehicle. However, when defendant repeatedly "reach[ed] for the

handgun," Yulich "told [defendant] to keep both hands on [the] steering wheel."

Once another officer arrived to assist Yulich, defendant was removed from the

vehicle and escorted to the patrol car. After defendant was out of the car, Yulich

observed a "full-sized, double-action handgun on the driver's seat" with "ball

ammunition inside the magazine" and "a round of ammunition . . . in the

chamber" in the "ready[-]to[-]fire" position. Before seizing the handgun, Yulich

photographed it "in place without touching it." The photograph was admitted

into evidence at the hearing.

13 The car had "a push[-]to[-]start" ignition. A-3856-18 51 An ensuing search of "[t]he interior cabin" uncovered "[a] large buck

knife" in "a compartment" in "the driver's door," and "a mason jar" with

"suspected marijuana" as well as "a pill bottle" with suspected "Oxycodone" in

"the center console." Defendant remained in the patrol car until the search of

the interior of his vehicle was completed, at which point defendant was arrested

and transported to police headquarters for processing. The entire encounter

lasted approximately forty-five minutes. Defendant's car was also impounded

and a subsequent search pursuant to a search warrant revealed vials of marijuana

oil in a bag in the trunk. In addition to the weapons and drug possession related

charges, defendant "was charged with numerous motor vehicle summonses" on

the same day as the stop.

Following the hearing, the judge denied the motion, concluding that the

stop was justified based on "the motor vehicle violations," and the search was

justified under "the plain view doctrine." In an oral decision, the judge found

Officer Yulich's testimony "very credible" and made factual findings consistent

with his testimony as well as "the [c]ourt's observations of the MVR." Initially,

the judge determined that "between the testimony and the . . . MVR, the stop

itself for the motor vehicle infractions was clearly legitimate." Next, the judge

found that "based . . . on the interaction that transpired" after the stop, which

A-3856-18 52 caused the officer "to suspect . . . [that] defendant was under the influence while

. . . operating the vehicle," "the officer properly went to the driver['s] side" and

"was lawfully in the location" when, "based on his training and experience," he

observed "in plain view" "what he believed to be a gun."

In rejecting defendant's argument that the officer prolonged the stop

unnecessarily, the judge concluded "the length of th[e] [stop] . . . was not

unreasonable to taint the actions of the officer." Rather, the judge found that

"the interaction itself [was] very quick," "[i]t was part of the routine motor

vehicle stop with suspicion of . . . [driving while under the influence,]" and "it

was further delayed because there [were] issues as to whether . . . defendant[,]

in fact[,] was impaired and whether his license was valid." The judge noted that

the officer's failure to conduct field sobriety tests was understandably preempted

by his observation of the handgun.

The judge also found that the search of the interior cabin was lawful under

the automobile exception to the warrant requirement because "probable cause to

believe that the vehicle contained evidence of a crime . . . arose in a manner that

was unforeseeable and spontaneous" and the subsequent search warrant was not

tainted by any illegality during the initial stop and search. See State v. Witt,

223 N.J. 409, 450 (2015) ("Going forward, searches on the roadway based on

A-3856-18 53 probable cause arising from unforeseeable and spontaneous circumstances are

permissible.").

"When reviewing a trial court's decision to grant or deny a suppression

motion, [we] 'must defer to the factual findings of the trial court so long as those

findings are supported by sufficient evidence in the record'" and "[w]e will set

aside a trial court's findings of fact only when such findings 'are clearly

mistaken.'" State v. Dunbar, 229 N.J. 521, 538 (2017) (quoting State v.

Hubbard, 222 N.J. 249, 262 (2015)). "We accord no deference, however, to a

trial court's interpretation of law, which we review de novo." Ibid. (citing State

v. Hathaway, 222 N.J. 453, 467 (2015)).

"A warrantless search is presumed invalid unless it falls within one of the

recognized exceptions to the warrant requirement," State v. Cooke, 163 N.J. 657,

664 (2000), and "[t]he State bears the burden of proving that the warrantless

search is justified by one of those exceptions." State v. Gamble, 218 N.J. 412,

425 (2014). Evidence seized when found in plain view following a lawful traffic

stop is one such exception. State v. Gonzales, 227 N.J. 77, 82 (2016). To be

lawful, a traffic "stop 'must be based on reasonable and articulable suspicion

that an offense, including a minor traffic offense, has been or is being

committed.'" State v. Bacome, 228 N.J. 94, 103 (2017) (quoting State v. Carty,

A-3856-18 54 170 N.J. 632, 639-40, modified, 174 N.J. 351 (2002)). Here, Yulich properly

stopped defendant's vehicle based on him observing numerous traffic infractions

and defendant does not argue otherwise.

During a lawful traffic stop, a police officer is permitted to "inquire 'into

matters unrelated to the justification for the traffic stop,'" Dunbar, 229 N.J. at

533 (quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009)), and "may make

'ordinary inquiries incident to [the traffic] stop.'" Ibid. (alteration in original)

(quoting Rodriguez v. United States, 575 U.S. 348, 355 (2015)). "If, during the

course of the stop or as a result of the reasonable inquiries initiated by the

officer, the circumstances 'give rise to suspicions unrelated to the traffic offense,

an officer may broaden [the] inquiry and satisfy those suspicions.'" State v.

Dickey, 152 N.J. 468, 479-80 (1998) (alteration in original) (quoting United

States v. Johnson, 58 F.3d 356, 357-58 (8th Cir. 1995)).

The inquiries, however, "may not be performed 'in a way that prolongs the

stop, absent the reasonable suspicion ordinarily demanded to justify detaining

an individual.'" Dunbar, 229 N.J. at 533 (quoting Rodriguez, 575 U.S. at 355).

Thus, a detention following a lawful stop "must be reasonable both at its

inception and throughout its entire execution," State v. Coles, 218 N.J. 322, 344

(2014), and prolonging a traffic stop "beyond the time reasonably required to

A-3856-18 55 complete the . . . stop's purpose . . . is unlawful absent independent reasonable

suspicion of criminal activity." Dunbar, 229 N.J. at 536.

In determining "whether an investigative detention is unreasonable,

common sense and ordinary human experience must govern over rigid criteria."

Dickey, 152 N.J. at 477 (quoting United States v. Sharpe, 470 U.S. 675, 685

(1985)). "The standard of reasonable suspicion required to uphold an

investigative detention is lower than the standard of probable cause necessary to

justify an arrest," State v. Nishina, 175 N.J. 502, 511 (2003) (citation omitted),

and "must be based on the law enforcement officer's assessment of the totality

of the circumstances with which he [or she] is faced." Ibid. (quoting State v.

Davis, 104 N.J. 490, 504 (1986)). Indeed, it "is based on 'specific and articulable

facts which, taken together with rational inferences from those facts,' give rise

to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117,

126-27 (2002) (citation omitted).

Here, the seizure was based on the officer's plain view observation of the

handgun during the course of the traffic stop. A warrantless seizure of evidence

in plain view is justified when "a police officer is lawfully in the viewing area

and the nature of the evidence is immediately apparent" as evidence of a crime

or contraband. Gonzales, 227 N.J. at 82. The record reveals substantial credible

A-3856-18 56 evidence supporting the judge's fact-findings, see State v. Elders, 192 N.J. 224,

243-44 (2007), and his determination that the handgun was properly seized

because it was in plain-view is legally sound.

Defendant contends that the officer was not "lawfully in the viewing area

when he allegedly saw the butt of the handgun underneath [defendant]" because

at that point, the officer had "moved to the driver's side of the car" and "had

impermissibly extended the traffic stop by failing to diligently address the traffic

infractions." To be sure, a detention becomes unlawful when it is longer than is

reasonably necessary to diligently investigate an officer's reasonable suspicion

of criminal activity. Dickey, 152 N.J. at 476-79. However, "diligence [is]

gauged . . . by noting what the officer actually did and how he did it[.]"

Rodriguez, 575 U.S. at 357. Here, we agree with the judge that, based on the

interaction between the officer and defendant during the stop, the officer acted

diligently and did not prolong the stop beyond what was necessary to satisfy his

suspicions. Accordingly, we affirm the judge's order denying the suppression

motion.

Affirmed in Docket No. A-5278-18 on the appeal and cross-appeal; and,

in Docket No. A-3856-18, defendant's convictions and sentence are affirmed but

we remand solely for correction of the JOC.

A-3856-18 57