Opinion
DOCKET NO. A-3314-13T4
04-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TIMYAN CABBELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-11-1332 and 04-11-1333. Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Timyan Cabbell appeals from the order of the trial court denying his motion to withdraw his guilty plea. We affirm.
Defendant and his codefendant John Calhoun were indicted by a Union County Grand Jury and charged with murdering Paul Lecaros on April 3, 2004, either as a principal or accomplice, N.J.S.A. 2C:11-3(a)(1), third degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b, and second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant and Calhoun were tried before the same jury and convicted of aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser included offense of murder, and the related possession of a firearm offenses. After the trial, defendant pled guilty to second degree possession of a firearm by an individual previously convicted of one of the offenses identified in N.J.S.A. 2C:39-7.
Effective February 2, 2009, the Legislature amended unlawful possession of a firearm under N.J.S.A. 2C:39-5b to constitute a second degree offense.
The trial court sentenced defendant to an extended term of forty years, with an eighty-five percent period of parole ineligibility and five years of parole supervision, as required under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also sentenced defendant to a concurrent term of five years on the conviction for possession of a firearm under N.J.S.A. 2C:39-7.
This court affirmed the conviction and sentence on direct appeal, but remanded for the trial court to reconsider the imposition of the extended term under State v. Pierce, 188 N.J. 155 (2006). State v. Cabbell, No. A-6015-05 (App. Div. Nov. 2, 2009). Our Supreme Court granted defendant's petition for certification, 202 N.J. 43 (2010), and reversed the jury's verdict, concluding defendant and Calhoun were not provided the opportunity to cross-examine one of two of the State's witnesses who identified defendant as the shooter, in violation of the Confrontation Clause requirements of our Federal and State Constitutions. State v. Cabbell, 207 N.J. 311, 317-18 (2011).
On remand, defendant entered into a negotiated agreement with the State on February 14, 2013, through which he pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a, and a second degree weapons possession charge under N.J.S.A. 2C:39-7b. In consideration for defendant agreeing to plead guilty to these two offenses, the State agreed to recommend the court sentence defendant to an aggregate term of twenty years subject to the parole restrictions required by the NERA. The State also agreed to dismiss the remaining charges against defendant.
The transcript of the plea hearing shows the trial judge questioned defendant directly to assure himself defendant was acting voluntarily and without coercion; that he was not under the influence of any medications or substances that impaired his judgment; that he understood the nature of the rights he was waiving as a result of his decision to plead guilty; and that he had sufficient time to review the discovery and discuss the matter with his attorney. The trial judge also reviewed the plea documents defendant had completed and signed with the assistance of his attorney. After this process was completed, defendant gave the following factual basis in response to his attorney's questions:
Q. On April 3, 2004 were you in the City of Piscataway?
A. Plainfield.
Q. On Plainfield Avenue?
A. Yes.
Q. And were you in a car accident?
A. Yes.
Q. And did you get angry about that car accident, so angry that you got out of the car and started shooting into the car that hit you?
A. Yeah.
Q. Did you have a reasonable certainty that shooting into the car that was - - was it occupied by a lot of people, a couple of people at least you knew?
A. Me and Mr. Lecaros got into an argument and then I just started shooting up the car.
Q. And you knew that by doing so there was a reasonable certainty that it would result in death?
A. Yeah.
Q. And you were in possession of weapon, correct?
A. Yes.
Q. And what kind of gun was it?
A. I don't even remember what kind of gun it was, honestly.
Q. But you remember - -
A. It was a weapon that I used, it was a gun, but I don't remember what kind of gun it was.
Q. But at the time you knew that you were a certain person, that you had been convicted of a felony before, and that you couldn't have that gun?
A. Yes.
The prosecutor questioned defendant concerning his plea and the evidence the State presented at trial from a witness admitted by the court as a ballistic expert. This witness testified that two different handguns were used in connection with the death of Paul Lecaros, a .22 caliber handgun and a .357 or 9mm (millimeter) caliber handgun. This prompted the following exchange between defendant and the prosecutor:
PROSECUTOR: Which gun were you using, the .22 or the other gun?
DEFENDANT: I was using the bigger gun.
PROSECUTOR: The bigger gun, not the .22 [caliber]?
DEFENDANT: Whichever one is bigger, I don't know which one is bigger, .22 or - -
PROSECUTOR: You don't know what's bigger, a 9 or a .22?
DEFENDANT: No, but I was using the bigger gun, the loud gun.
Based on defendant's responses and the information discussed on the record, the trial judge found defendant voluntarily agreed to plead guilty after receiving the advice of counsel, in exchange for the limitations on his penal exposure agreed to by the State.
On September 6, 2013, nearly seven months after his plea hearing, defendant appeared before the trial judge seeking to withdraw his guilty plea based on the recantation of a Karine Martin's statement, one of two State's witnesses our Supreme Court characterized as "key" in the opinion reversing the jury's conviction. Indeed, our Supreme Court particularly identified Martin's unwillingness to testify at trial, and the trial court's subsequent admission of the out-of-court statement she gave to the police investigators, as the basis for reversing defendant's conviction.
The appellate record does not contain a copy of, nor does it even describe, the type of application defendant filed in support of his request to withdraw his guilty plea. We infer defendant submitted at least a brief based on defense counsel's comments to the motion judge that he "appended" to his brief portions of Karine Martin's statement recanting the statement she previously gave to law enforcement investigators.
In a recorded statement to the police, Martin identified the two defendants as participants in the shooting death of Paul Lecaros. Before the jury, she admitted that the prior statement was truthful but refused to respond to further questions posed by the prosecutor. At a hearing out of the presence of the jury, she testified that she was under the influence of crack cocaine both when she observed the shooting incident and when she gave the statement to the police.
The court admitted the witness's damning out-of-court statement without allowing defense counsel the opportunity to cross-examine her before the jury.
[Cabbell, supra, 207 N.J. at 317-18.]
This is a reference to the N.J.R.E. 104 hearing required under State v. Gross, 121 N.J. 1, 10, 17 (1990).
At the September 6, 2013 plea-withdrawal hearing, defense counsel told the motion judge that on February 12, 2013, two days before the plea hearing, Karine Martin "gave a statement to a private investigator for the defense in which she recanted her statements implicating Mr. Cabbell and specifically she told a private detective that she did not see the defendant Cabbell fire three shots into the front window of the truck." Although defense counsel read portions of Martin's alleged statement into the record of the motion hearing, we have not been provided with a copy of this statement as part of the appellate record.
The transcript spells her first name as "Karen." We assume this was merely a typographical error. --------
The motion judge denied defendant's application to withdraw his guilty plea at the conclusion of the hearing. The judge explained the reasons for his ruling in a memorandum of opinion dated September 6, 2013, the same date of the hearing. In this document, the judge restates the evidence presented at the trial, including our Supreme Court's decision overturning the jury's verdict.
The judge specifically found that "a private investigator and detective" retained by defendant named Ken Timmons, interviewed Martin on February 12, 2013. The judge found Martin told Timmons that she recanted her statement, that she witnessed defendant fire three shots into the front windshield of the pickup truck after the truck crashed into defendant's car. The judge also found that on February 14, 2013, defendant freely, voluntarily, and knowingly entered a guilty plea to aggravated manslaughter, N.J.S.A. 2C:11-4a, and a related weapons possession charge under N.J.S.A. 2C:39-7b. Finally, the judge found defendant "was informed that Martin had recanted her prior statement inculpating [him] in this matter." Based on this recantation, the judge noted defendant sought to withdraw his guilty plea "based on a theory of newly discovered evidence, to wit, Martin's February 12, 2013 recantation."
Mindful of this evidence, the judge concluded defendant had not satisfied the standard for withdrawing his guilty plea under Rule 3:9-2(e) and State v. Slater, 198 N.J. 145, 157-58 (2009).
Defendant appeared for sentencing on September 13, 2013. He was thirty-three years old at the time. Defendant had multiple adjudications of delinquency as a juvenile, and three Superior Court convictions for indictable offenses. He had been placed on and subsequently violated probationary sentences, and thereafter sentenced to serve State prison terms; he also had twelve municipal court convictions. The judge found aggravating factors N.J.S.A. 2C:44-1(a)(3), (6), and (9), and no mitigating factors. The court sentenced defendant in accordance with the plea agreement to a term of twenty years, subject to NERA.
Defendant now appeals raising the following argument.
POINT I
DEFENDANT'S MOTION TO WITHDRAW HIS PLEA SHOULD HAVE BEEN GRANTED UNDER STATE V. SLATER, 198 N.J. 145 (2009).
We reject this argument and affirm substantially for the reasons expressed by Judge Robert J. Mega in his September 6, 2013 memorandum of opinion. R. 2:11-3(e)(2). We also incorporate by reference the factual findings Judge Mega made based on the evidence submitted at the plea-withdrawal hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION