Opinion
DOCKET NO. A-5249-12T4
06-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EARL L. BARLEY, a/k/a EARLY BARLEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter Blum, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Special Deputy Attorney General/ Acting Assistant County Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 09-10-2353, 10-10-2481, 11-03-0776 and 12-02-0315. Joseph E. Krakora, Public Defender, attorney for appellant (Peter Blum, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Special Deputy Attorney General/ Acting Assistant County Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Earl L. Barley appeals from the denial of his motion to suppress marijuana he handed the police at their request after he was arrested following their observation of his sale of several small bags of marijuana. He also appeals from the denial of his motion to withdraw his guilty plea to that sale of marijuana as well as three other unrelated charges, which resulted in concurrent sentences aggregating five years with a three-year mandatory minimum term. We affirm except for a limited remand to correct a typographical error in the judgment of conviction.
At approximately 7:30 p.m. in August 2009, Atlantic City Police Detective Corcoran, in plain clothes in an unmarked car, observed defendant, who was on foot in a parking area. A car drove up and an occupant had a brief conversation with defendant, who reached into the crotch area of his pants and retrieved a plastic bag from which he took several smaller plastic bags, which he handed to the occupant, who in turn handed defendant a wad of money. Defendant returned the larger plastic bag to the front of his pants and put the money in his pocket. Detective Corcoran then saw defendant enter the passenger side of a car being driven by a woman. The detective and fellow officers stopped the car.
The driver later testified on behalf of defendant at the suppression hearing, contradicting the police testimony. The judge found the police more credible.
At the detective's urging, and after considerable reluctance on the part of defendant, he pulled out the bag of marijuana, telling the officers: "[P]lease don't case me. It's only weed. I'm on parole." The officers recovered $74 from defendant's pocket.
Detective Corcoran testified that he knew defendant from previous interactions and, although he told defendant he was under arrest, the detective had a lengthy discussion with him to convince him to hand over the marijuana voluntarily. The officers were not comfortable transporting defendant with the drugs on his person. They also did not want to apply for a warrant to strip-search defendant, as they thought was required by Attorney General Guidelines.
The judge denied defendant's motion to suppress the bag of marijuana and admitted the portion of his statement where he said, "It's only weed" as a spontaneous statement not made in response to interrogation. Defendant subsequently pled guilty on December 16, 2011 to three indictments charging two marijuana charges, fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(12), and third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Five other charges were dismissed.
Sentencing was scheduled for March 2012. Defendant was released to a home confinement program pending sentencing. He cut his Global Positioning Satellite bracelet, however, and did not appear for sentencing. Defendant was eventually apprehended and filed a motion to withdraw his guilty pleas a year later, in March 2013. After the motion was denied, he pled guilty to a fourth charge of fourth-degree bail-jumping, N.J.S.A. 2C:29-7, and was ultimately sentenced on all four charges in May 2013.
On appeal, defendant raises the following issues:
POINT I: BARLEY'S STATEMENT AND THE MARIJUANA THAT HE PULLED OUT OF HIS PANTS SHOULD BE SUPPRESSED BECAUSE HE WAS RESPONDING TO THE UNMIRANDIZED CUSTODIAL INTERROGATION OF DETECTIVES, WHO WERE TRYING TO AVOID THE REQUIREMENT OF APPLYING FOR A WARRANT TO STRIP SEARCH. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, PARA 1.
POINT II: BARLEY'S PRE-SENTENCE PLEA WITHDRAWAL MOTION SHOULD HAVE BEEN GRANTED, ESPECIALLY BECAUSE HIS INNOCENCE CLAIM IN THE ALL-IMPORTANT GUN CASE - I.E., HE HAD NOT KNOWN ABOUT THE GUN IN A CAR OCCUPIED BY SEVERAL PEOPLE - WAS PLAUSIBLE. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, PARA 1.
Unquestionably, defendant was under arrest and was not given his Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thus, if he was questioned without the proper warnings, the answers would not be admissible at trial. State v. Knight, 183 N.J. 449, 461 (2005) (citation omitted) (explaining that "[c]onfessions obtained by the police during a custodial interrogation are barred from evidence unless the defendant has been advised of his or her constitutional rights."). Defendant argues that his production of the bag of marijuana upon request was tantamount to an admission of guilt and the drugs should have been suppressed. The officers, however, told defendant that they saw him sell drugs from a bag in his crotch area and wanted defendant to turn over the bag so that they did not have to retrieve it themselves. The police did not want to intrude on his privacy, nor have to apply for a warrant to conduct a strip search.
Defendant was under arrest and, had he not voluntarily turned over the bag of marijuana, the police would have inevitably discovered it during the normal arrest processing. See State v. Finesmith, 406 N.J. Super. 510, 522-23 (App. Div. 2009) (explaining discovery is inevitable when, through the use of normal police procedures, the evidence would have come to light independently of the purportedly unlawful means used initially).
Defendant did not tell the police anything about the location of the marijuana that they did not already know and would not have inevitably confirmed, had he not handed the plastic bag of marijuana to them himself. Defendant was under arrest for a crime, and thus did not fall within the statute restricting a strip search upon arrest for an offense other than a crime. N.J.S.A. 2A:161A-1. Although the Attorney General Guidelines apply to arrests for a crime as well as arrests for other offenses, it is unclear whether a strip search under these circumstances would have violated those Guidelines, and, if so, what the Constitutional ramifications of such a violation would be. See Attorney General's Strip Search and Body Cavity Search Requirements and Procedures for Police Officers, (July 1995), available at http://www.state.ni.us/lps/dci/agguide/3strpsch.pdf. Defendant cites no controlling authority for his argument that a violation of the Guidelines under these circumstances should result in suppression of contraband. The State does not address this issue. Thus, because defendant voluntarily surrendered the marijuana, and it would have been discovered by the police inevitably, the motion judge correctly denied defendant's motion to suppress the evidence.
As the judge found, defendant's statement was not in response to a question, but rather was a spontaneous plea for mercy. See State v. Brabham, 413 N.J. Super. 196, 210 (App. Div.) (citation omitted), certif. denied, 203 N.J. 440 (2010); State v. Cryan, 363 N.J. Super. 442, 454 (App. Div. 2003). Because defendant did not preserve his right to challenge the review of the admissibility of the statement on appeal, we will not further discuss the decision denying suppression of the statement. R. 3:5-7(d).
Finally, defendant argues that he should have been allowed to withdraw his guilty pleas to four indictments and proceed to trial. Rule 3:21-1 governs the withdrawal of guilty pleas. It provides that "[a] motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." R. 3:21-1. Such motions face a stricter standard when made after sentencing because of the interest of the State and the public in finality. State v. Slater, 198 N.J. 145, 155-56 (2009).
Before sentencing, the standard for plea withdrawal is in the interests of justice. State v. Howard, 110 N.J. 113, 123-24 (1988) (citation omitted). In the case of plea-withdrawal motions made before sentencing "courts are to exercise their discretion liberally to allow plea withdrawals" and "in a close case, the scales should usually tip in favor of defendant." State v. Munroe, 210 N.J. 429, 441 (2012) (citations and internal quotation marks omitted). Nevertheless, the Munroe Court explained that "[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 (citations and internal quotation marks omitted). Defendant has 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 (citation and internal quotation marks omitted).
Our Supreme Court outlined a framework to assess claims to withdraw a plea, stating:
In evaluating motions to withdraw a guilty plea, trial courts should consider the following factors: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
[Slater, supra, 198 N.J. at 150.]
The State argues that because defendant did not move to withdraw his guilty pleas until one year after his original sentencing date he should be held to the stricter, post-sentencing standard of plea withdrawal. Conversely, defendant argues that he should be held to the more expansive standard because he had not yet been sentenced.
Under either standard, defendant fell woefully short of demonstrating a good faith basis to withdraw his guilty pleas. He claimed that his relationship with his defense counsel had broken down. He also maintained that with regard to the gun charge, he was in a car with others and was unaware that two guns were in the car. He did not profess innocence to the two indictable marijuana distribution charges, but argues that because the gun charge was the more serious charge, he should necessarily be allowed to withdraw his guilty pleas on the other charges as well. Defendant does not indicate a desire to withdraw his guilty plea to the gun charge if he is not permitted to withdraw his guilty pleas to the three other charges, for which he maintains no colorable claim of innocence.
Given the elaborate plea bargain which encompassed separate charges in separate indictments, as well as defendant's year-long flight from the jurisdiction, and his failure to articulate any claim of innocence with regard to the drug charges, we cannot conclude that the motion judge was mistaken in denying defendant's application to withdraw his guilty pleas. Defendant ultimately received a sentence no longer than the one he originally negotiated, in spite of having fled, and having entered a guilty plea to another crime as a consequence of that flight.
Affirmed. We remand only to correct the judgment of conviction to reflect the proper statutory citation for bail-jumping, N.J.S.A. 2C:29-7. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION