NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NO. A-1892-14T2 A-1909-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHARON BOWEN,
Defendant-Appellant. ______________________________
JAMES GADSON, a/k/a JAMES P. GADSON, JR., JAMES BENNETT,
Submitted May 15, 2017 – Decided August 29, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09- 05-0914. Joseph E. Krakora, Public Defender, attorney for appellant in A-1892-14 (Alison Perrone, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant in A-1909-14 (John A. Albright, Designated Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent in A-1892-14 and A- 1909-14 (Samuel Marzarella, Chief Assistant Prosecutor, of counsel; William Kyle Meighan, Senior Assistant Prosecutor, on the brief).
PER CURIAM
Charged with controlled dangerous substance (CDS) offenses,
defendants Sharon Bowen and James P. Gadson, Jr. filed motions to
suppress the wiretap evidence on which the charges were largely
based. The trial court denied the motions. Thereafter, defendants
negotiated guilty pleas and received the sentences they bargained
for: Bowen, a probationary term; Gadson, an eighteen-year
custodial term with nine years of parole ineligibility. Defendants
filed separate appeals, which we have consolidated for purposes
of this opinion. Bowen argues:
POINT I
THE LOWER COURT ERRED IN DENYING DEFENDANT'S SECOND MOTION TO SUPPRESS FOR INSUFFICIENT MINIMIZATION OF UNAUTHORIZED INTERCEPTION OF CONVERSATIONS AND INFORMATION BECAUSE SUPPRESSION OF ALL INTERCEPTED COMMUNICATIONS WAS REQUIRED AFTER THE COURT FOUND A MINIMIZATION VIOLATION.
2 A-1892-14T2 POINT II
THE LOWER COURT ERRED IN DENYING DEFENDANT'S FIRST MOTION TO SUPPRESS THE INTERCEPTED CALLS AS THERE ARE INSUFFICIENT FACTS IN THE RECORD TO SUPPORT THE JUDGE'S FINDINGS WHICH WERE MADE WITHOUT THE BENEFIT OF TESTIMONY AT AN EVIDENTIARY HEARING (PARTIALLY RAISED BELOW).
Gadson argues:
THE LOWER COURT ERRED IN DENYING DEFENDANT'S SECOND MOTION TO SUPPRESS FOR INSUFFICIENT MINIMIZATION OF UNAUTHORIZED INTERCEPTION OF CONVERSATIONS AND INFORMATION BECAUSE SUPPRESSION OF ALL INTERCEPTED COMMUNICATIONS WAS REQUIRED AFTER THE COURT FOUND A MINIMIZATION VIOLATION.
POINT II
DEFENDANT'S CONVICTION FOR SECOND-DEGREE DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE MUST BE REVERSED BECAUSE THE RECORD DOES NOT ESTABLISH AN ADEQUATE FACTUAL BASIS TO PROVE THE ELEMENTS OF THAT OFFENSE. THE LOWER COURT FAILED TO PERFORM ANY INQUIRY INTO DEFENDANT'S EQUIVOCAL ANSWERS TO QUESTIONS POSED DURING THE PLEA COLLOQUY AS TO THE NATURE AND AMOUNTS OF THE SUBSTANCE IN QUESTION AND THE POTENTIAL DEFENSES DEFENDANT SEEMED TO BE RAISING. (NOT RAISED BELOW).
POINT III
THE LOWER COURT ERRED IN DENYING DEFENDANT'S FIRST MOTION TO SUPPRESS THE INTERCEPTED CALLS AS THERE ARE INSUFFICIENT FACTS IN THE RECORD TO SUPPORT THE JUDGE'S FINDINGS WHICH WERE MADE WITHOUT THE BENEFIT OF TESTIMONY AT AN EVIDENTIARY HEARING. (PARTIALLY RAISED BELOW).
3 A-1892-14T2 POINT IV
DEFENDANT'S EIGHTEEN-YEAR EXTENDED TERM SENTENCE WITH A NINE-YEAR PERIOD OF PAROLE INELIGIBILITY FOR A NON-VIOLENT DRUG-RELATED OFFENSE IS MANIFESTLY EXCESSIVE, AND THE JUDGE APPARENTLY ERRONEOUSLY BELIEVED THAT HE HAD TO SENTENCE DEFENDANT TO THE PERIOD OF INCARCERATION RECOMMENDED BY THE PROSECUTOR.
POINT V
THE TRIAL COURT FAILED TO AWARD THE CORRECT AMOUNT OF JAIL CREDIT REQUIRING A REMAND FOR CORRECTION OF THE JUDGMENT OF CONVICTION. DEFENDANT IS ENTITLED TO JAIL CREDIT FROM MARCH 9, 2012 TO APRIL 22, 2012 BECAUSE HE NEVER LEFT THE COUNTY JAIL BETWEEN HIS ARREST ON SEPTEMBER 8, 2009 AND SENTENCING ON OCTOBER 10, 2014. (NOT RAISED BELOW).
For the reasons that follow, we affirm the convictions and
sentences but remand for correction of Gadson's judgment of
conviction to reflect gap-time credits.
In May 2009, an Ocean County grand jury returned an eight-
count indictment against multiple defendants. The grand jury
charged Gadson with first-degree leader of a narcotics trafficking
network, N.J.S.A. 2C:35-3 (count one); second-degree conspiracy
to manufacture, distribute and/or possess with the intent to
distribute a CDS, cocaine, N.J.S.A. 2C:35-5(a) and (b)(1), and
2C:5-2 (count two); second-degree distribution of a CDS, cocaine,
N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count three); third-degree
distribution of CDS, heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3)
4 A-1892-14T2 (count six); second-degree possession with intent to distribute a
CDS, cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count four);
third-degree possession with the intent to distribute a CDS,
heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count seven); and two
counts of third-degree possession of a CDS, N.J.S.A. 2C:35-
10(a)(1) (count five – cocaine and count eight – heroin). In the
same indictment, the grand jury charged Bowen in count two with
second-degree conspiracy to manufacture, distribute and/or possess
with the intent to distribute a CDS, cocaine.
Following the indictment, defendants filed a motion to
suppress intercepted communications transmitted over Gadson's and
an alleged co-conspirator's cellular telephones. Law enforcement
officers intercepted the communications after obtaining a wiretap
order and communications data warrant. Defendants also filed a
motion for a minimization hearing. The trial court granted in
part and denied in part the suppression motions, suppressing some
conversations on the ground the State had failed to minimize
interception of privileged communications.
Thereafter, both defendants pleaded guilty. Bowen pleaded
to an amended second count charging her with third-degree
possession of a CDS with intent to distribute. The trial court
sentenced her in accordance with the plea agreement to probation
for eighteen months, conditioned on her serving nineteen days in
5 A-1892-14T2 county jail, with credit for nineteen days of time served. The
trial court also imposed appropriate fines and assessments.
Gadson pleaded guilty to the indictment's third count,
second-degree distribution of a CDS, cocaine. In accordance with
his plea agreement with the State, the court sentenced him to an
extended eighteen-year custodial term with a nine-year period of
parole ineligibility. The court also imposed appropriate fines
and assessments.
Bowen raises two points on appeal. In her second point, she
contends the trial court erred by initially denying her motion to
suppress the intercepted cellular telephone communications without
an evidentiary hearing. She asserts the record the court
considered contained insufficient factual support for the court's
findings. In her first point, Bowen argues the court improperly
denied her second suppression motion. She contends that because
the trial court found the State had not adequately minimized the
intercepted conversations, it should have suppressed all
intercepted conversations.
Gadson raises identical arguments in his brief's first and
third points. He also alleges his plea contained an inadequate
factual basis, challenges his eighteen-year custodial sentence as
excessive, and claims he is entitled to additional jail credits.
6 A-1892-14T2 In opposition, the State argues, among other things, that by
pleading guilty without reserving the right to challenge the trial
court's orders on the motions, Bowen and Gadson waived their right
to appeal the orders. We agree.
"Generally, a guilty plea constitutes a waiver of all issues
which were or could have been addressed by the trial judge before
the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498
(App. Div. 1988); see also State v. Marolda, 394 N.J. Super. 430,
435 (App. Div.), certif. denied, 192 N.J. 482 (2007). Thus, "a
defendant who pleads guilty is prohibited from raising, on appeal,
the contention that the State violated his constitutional rights
prior to the plea." State v. Crawley, 149 N.J. 310, 316 (1997);
see also State v. Knight, 183 N.J. 449, 470 (2005).
There are exceptions. Rule 3:5-7(d) authorizes a defendant
to appeal an unlawful search and seizure of physical evidence
after entering a guilty plea. In addition, Rule 3:9-3(f)
authorizes a defendant, "[w]ith the approval of the court and the
consent of the prosecuting attorney," to "enter a conditional plea
of guilty reserving on the record the right to appeal from the
adverse determination of any specified pretrial motion." It is
"clear that the automatic as opposed to conditional reservation
of the right to appeal following a guilty plea applies only to
motions to suppress physical evidence allegedly seized in
7 A-1892-14T2 violation of the Fourth Amendment and not to other evidential
challenges, such as the admissibility of confessions." Pressler
& Verniero, Current N.J. Court Rules, comment 4 on Rule 3:5-7
(2017) (citing State v. Morales, 182 N.J. Super. 502, 508 (App.
Div.), certif. denied, 89 N.J. 421 (1982)).
Neither exception applies here. As both defendants state,
"[i]n this case, defendant moved to suppress evidence under the
Wiretap Act . . . ." The defendants sought to suppress recorded
statements, not physical evidence, and neither defendant entered
a conditional plea pursuant to Rule 3:9-3(f). To preserve the
right to appeal an order denying a motion to suppress conversations
recorded under the Wiretapping and Electronic Surveillance Control
Act, N.J.S.A. 2A:156A-1 to -37, a defendant must do so under Rule
3:9-3(f). State v. Keegan, 188 N.J. Super. 471, 475-76 (App.
Div.), certif. denied, 93 N.J. 320 (1983). Neither Bowen nor
Gadson did so here. For that reason, they have not preserved
their right to raise the issue on appeal, and we decline to
consider it.
Gadson contends his conviction for second-degree distribution
of a CDS must be reversed because the record lacks an adequate
factual basis. He further contends the trial court failed to
perform any inquiry into his equivocal answers to questions posed
8 A-1892-14T2 during the plea colloquy regarding the nature and amounts of the
substance in question and the potential defenses he raised.
During Gadson's plea colloquy, the following exchange
occurred:
DIRECT EXAMINATION BY [DEFENSE COUNSEL]:
Q Mr. Gadson, on or about March 9th of 2008 were you in possession of in excess of a half ounce of cocaine, just over a half ounce of cocaine?
A I believe so. I believe it was cocaine.
Q And - -
[THE ASSISTANT PROSECUTOR]: I didn't hear his answer.
THE COURT: He said he believed it was cocaine.
Q You didn't have a lab facility but it was your understanding that it was cocaine, and cocaine was illegal?
A Yes.
Q And you did actually turn over that cocaine to a Robert Stevens, distribute it to Robert Stevens?
A Yes, I did. Yes. Q And you did that in Lakewood?
[DEFENSE COUNSEL]: That's all I have, Your Honor.
CROSS-EXAMINATION BY [THE ASSISTANT PROSECUTOR]:
9 A-1892-14T2 Q Mr. Gadson, you had been through discovery with your attorney; haven't you?
A Yes, I have.
Q And you saw and heard the lab report from the Ocean County Sheriff's Department regarding the cocaine that you believe you had and distributed to Robert Stevens?
Q And so you have no reason to dispute the fact that that was cocaine and it was more than a half an ounce of cocaine; is that correct?
A Now I know, yeah.
Q Right.
A. But before at first when he said it was coke, I didn’t know that it was coke. After I seen the reports, yes, now, but when Mr. Stevens came and got it from me - -
Q I can't understand what you're saying.
A - - when Mr. Stevens came and got it from me, I didn’t know it was cocaine at that time.
[DEFENSE COUNSEL]: May I ask a question, Your Honor? THE COURT: Yes, you.
[THE ASSISTANT PROSECUTOR]: Just for the record - -
THE COURT: Counsel would like to further question his client. I'll allow him to do that. You can revisit the issue.
REDIRECT EXAMINATION BY [DEFENSE COUNSEL]:
10 A-1892-14T2 Q You did not have any lab facilities; is that correct?
A Exactly. That's my point. Right.
Q And so the substance that you obtained you believe to be cocaine - -
Q - - the substance that you provided Mr. Stevens you believe to be cocaine?
Q And now you've reviewed the lab reports that it was indeed cocaine?
Q So it was your intent to possess and to distribute cocaine, and now you have proof that it was cocaine; is that correct?
A Yes. Yes.
[DEFENSE COUNSEL]: I have nothing further, Your Honor.
[THE ASSISTANT PROSECUTOR]: Thank you.
THE COURT: Anything further?
[THE ASSISTANT PROSECUTOR]: No, sir. Thank you.
A trial court "may refuse to accept a plea of guilty and
shall not accept such plea without first . . . determining by
inquiry of the defendant and others . . . that there is a factual
basis for the plea[.]" R. 3:9-2. "[I]t is essential to elicit
11 A-1892-14T2 from the defendant a comprehensive factual basis, addressing each
element of a given offense in substantial detail." State v. Perez,
220 N.J. 423, 432 (2015) (quoting State v. Campfield, 213 N.J.
218, 236 (2013)).
Here, Gadson provided an adequate factual foundation. During
his plea colloquy, Gadson admitted that when he sold the substance
at issue, he believed it was cocaine and he intended to possess
and distribute cocaine. He also admitted he reviewed the lab
report, which confirmed the substance had indeed been cocaine.
The plea colloquy, considered in its entirety, belies Gadson's
contention that the trial court lacked adequate facts upon which
to base his guilty plea.
Gadson contends his eighteen-year extended-term sentence with
nine years of parole ineligibility is manifestly excessive and the
trial court "erroneously believed . . . [it] had to sentence
[Gadson] to the period of incarceration recommended by the
prosecutor."
An appellate court may review a sentence imposed by a trial
court to determine if the trial court (a) abided by legislative
policies, (b) based its findings of aggravating and mitigating
factors upon competent, credible evidence in the record, and (c)
properly applied the sentencing guidelines to the facts of the
case to reach a sentence that does not shock the judicial
12 A-1892-14T2 conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). An
appellate court must not substitute its judgment for that of the
trial court. Id. at 365.
In sum, then, appellate review of a sentencing decision calls for [an appellate court] to determine, first, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.
[Id. at 365-66.]
Here, the trial court carefully analyzed the aggravating and
mitigating factors upon which it based its decision to sentence
Gadson to an eighteen-year custodial term. Further, Gadson
qualified for an extended term sentence, which was consistent with
his plea agreement. Accordingly, Gadson's sentence is not
manifestly excessive; rather, his sentence is proper and does not
shock the judicial conscience.
The trial court made two comments during the sentencing
proceeding that Gadson construes as reflecting the court's belief
that it was bound by the State's sentencing recommendation; a
recommendation the State made in accordance with the plea
agreement. After noting Gadson was extended-term eligible, and
13 A-1892-14T2 following its review of Gadson's lengthy criminal record —
including eight CDS offenses, four of which were possession with
the intent to distribute — the trial court stated: "The [c]ourt
will note this is a negotiated plea. And why that's important,
. . . [t]he terms of it [are] negotiated between both [the] defense
and the [p]rosecutor. Mr. Gadson knows exactly what he'll be
sentenced to through that negotiated plea."
Later in its decision, after reviewing and weighing
aggravating and mitigating factors, and after considering six
letters from Gadson's family "indicating a different aspect of Mr.
Gadson," including how he sacrificed for his children, the court
stated: "Notwithstanding that, the [c]ourt has to go along with
this plea agreement in light of all the other things I've placed
on the record and sentence . . . Mr. Gadson to eighteen years . .
. ." (Emphasis added).
Having considered the court's statements in the context of
the entire sentencing proceeding, we disagree that they indicated
the court's misimpression it was bound by the State's sentencing
recommendation. Considered in context, the court was conveying
to Gadson that in light of his lengthy record and eligibility for
an extended term, the plea agreement provided him with some
certainty about the sentence he would receive; not that the
sentence was mandatory. This was made clear when the court
14 A-1892-14T2 explained it was following the plea recommendation "in light of
all the other things I've placed on the record." We thus reject
both Gadson's construction of the court's statements and his
argument that he should be resentenced.
Lastly, Gadson contends the trial court awarded him an
incorrect amount of jail time credits. Specifically, Gadson
contends he is entitled to jail credits from March 9, 2012, through
April 22, 2012, because "he never left the county jail between his
arrest on September 8, 2009[,] and sentencing on October 10,
2014."
A defendant is entitled to "credits against all sentences
'for any time served in custody in jail . . . between arrest and
the imposition of sentence' on each case." State v. Hernandez,
208 N.J. 24, 28 (2011) (quoting R. 3:21-8), mod. on other grounds,
State v. C.H., 228 N.J. 111 (2017). A defendant may receive these
credits as "jail credits under Rule 3:21-8 or [as] gap-time credits
under N.J.S.A. 2C:44-5(b)(2) to reduce the time to be served on
his sentence." Id. at 36.
Jail credits are "day-for-day credits," [Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App. Div. 2005), certif. denied, 186 N.J. 606 (2006)], that are applied to the "front end" of a defendant's sentence, meaning that he or she is entitled to credit against the sentence for every day [he or she] was held in custody for that offense prior to sentencing.
15 A-1892-14T2 [Id. at 37.]
Jail credits reduce a defendant's period of parole ineligibility
as well as the sentence imposed. Ibid. (citing State v.
Mastapeter, 290 N.J. Super. 56, 64 (App. Div.), certif. denied,
146 N.J. 569 (1996)).
In contrast, a sentencing court may award gap-time credits:
[w]hen a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:
. . . .
(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served[.]
[Ibid. (second and third alterations in original) (citing N.J.S.A. 2C:44-5(b)).]
"The credit awarded under N.J.S.A. 2C:44-5(b) is referred to as
'gap-time credit' because it awards a defendant who is given two
separate sentences on two different dates credit toward the second
sentence for the time spent in custody since he or she began
serving the first sentence." Id. at 38.
"To demonstrate an entitlement to gap-time credit, a
defendant must establish three facts: '(1) the defendant has been
16 A-1892-14T2 sentenced previously to a term of imprisonment[;] (2) the defendant
is sentenced subsequently to another term[;] and (3) both offenses
occurred prior to the imposition of the first sentence.'" Ibid.
(alterations in original) (quoting State v. Franklin, 175 N.J.
456, 462 (2003)). Although "a defendant accrues and is entitled
to jail credits for time spent in custody, . . . once the first
sentence is imposed a defendant is only entitled to gap-time
credits for time accrued thereafter when sentenced on the other
charges." Id. at 47. A sentencing court must award gap-time
credits to a defendant who meets these requirements. Id. at 38.
Gap-time credits apply towards the "back end" of a defendant's
aggregate sentence. Ibid. (citation omitted). Gap-time credits
do not reduce a defendant's parole ineligibility period or the
length of a defendant's parole upon release. Id. at 39.
Here, police arrested Gadson on September 8, 2009, and he
remained in county jail until the court sentenced him on October
10, 2014. The court awarded Gadson 1813 days of jail credit for
his time served, but did not award Gadson credit for the period
between March 9, 2012, and April 22, 2012, when he served time in
county jail on unrelated municipal offenses. The failure to award
Gadson forty-four days of gap-time credit for this period was
error, as Gadson is entitled to the additional forty-four days of
17 A-1892-14T2 gap-time credit. The State concedes this point. The judgment of
conviction must be corrected accordingly.
For the foregoing reasons, we affirm Bowen's conviction and
sentence and Gadson's conviction and sentence. We remand for
correction of Gadson's judgment of conviction to reflect the
appropriate gap-time credits.
18 A-1892-14T2