Decided June 28, 2004 On appeal from the Superior Court, Appellate Division, whose opinion is reported at 362 N.J. Super. 600 (2003). CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE VERNIERO's opinion.
We found that argument "disingenuous," since the prosecutor never took exception to the defense counsel's statement on the record "that the court's refusal to enforce the plea agreement was one of the pretrial motions that would be appealed[, and] [t]he judge took particular note that the plea agreement reserved [the] defendant's right to appeal the pretrial motions." Ibid.; see State v. Diloreto, 362 N.J. Super. 600, 614 (App. Div. 2003) (choosing to consider the defendant's appeal from denial of his motion to suppress where the judge explained to the defendant that his right to appeal as to "those issues [was] still available" despite entry of a guilty plea), aff'd, 180 N.J. 264 (2004). We have applied Matos to other situations where the State essentially acquiesced to a defendant's clear statement on the record at the plea proceeding of an intention to pursue an appeal after pleading guilty.
The Appellate Division remanded for resentencing on the NERA claim, but otherwise affirmed. State v. DiLoreto, 362 N.J. Super. 600 (App.Div. 2003). Petitioner appealed to the New Jersey Supreme Court, which denied certification as to the consecutive sentence question, but which addressed and affirmed on the suppression issues.
PETITIONS FOR CERTIFICATION 362 N.J. Super 600 829 A.2d 1123 355 N.J. Super. 283 810 A.2d 81 358 N.J. Super. 504 818 A.2d 443 Lower Court Title Date Disposition Citation New Jersey Division of Youth and Family Services v. J.F.; B.A.F.
Gonzalez, 254 N.J. Super. at 304; see also State v. Matos, 273 N.J. Super. 6, 15 (App. Div. 1994) (considering merits of the defendant's argument on appeal, despite failure to strictly comply with the Rule, based, in part, on judge's comments at time of guilty plea and prosecutor's silence); State v. Diloreto, 362 N.J. Super. 600, 614 (App. Div. 2003) (considering merits of the defendant's appeal where the judge explained to the defendant at the time of his plea that his right to appeal as to "those issues [was] still available"), aff'd, 180 N.J. 264 (2004). We turn to the merits of defendant's argument.
Here, defense counsel's casual mention of “all of the motions” is insufficient; nor does a difficult-to-read handwritten list included in the plea form satisfy the requirement of judicial approval or constitute “on the record” acknowledgment of a particular motion. If a defendant reserves the right to appeal a motion and is successful on appeal, he or she has the right to withdraw the guilty plea and go to trial or renegotiate another plea.R. 3:9–3(f); State v. Diloreto, 362 N.J.Super. 600, 616, 829 A.2d 1123 (App.Div.), certif. denied, 178 N.J. 252, 837 A.2d 1094 (2003), and aff'd, 180 N.J. 264, 850 A.2d 1226 (2004). We note, however, that defendants are not entitled to a negotiated plea offer.
While probable cause is a necessary predicate to the first search, we believe that the officers' conduct must be evaluated in the proper context. See State v. Diloreto, 362 N.J.Super. 600, 829 A.2d 1123, 1135 (App.Div.), certification denied, 178 N.J. 252, 837 A.2d 1094 (2003) ("The need to investigate a missing person's report does not flow from the concern about criminal wrongdoing or involve the search for evidence of a crime, and the police conduct must be evaluated in that context"). B.
The rationale, as the Michigan Court of Appeals explained in People v. Hannaford , is that See, e.g., People v. Tobin , 219 Cal. App. 3d 634, 269 Cal.Rptr. 81 (1990) ; People v Hannaford , 167 Mich. App. 147, 421 N.W.2d 608 (1988) ; People v Otto , 91 Mich. App. 444, 284 N.W.2d 273 (1979) ; State v. Diloreto , 362 N.J. Super. 600, 829 A.2d 1123 (2003) ; Com. v. Rehmeyer , 349 Pa. Super. 176, 502 A.2d 1332 (1985) ; State v. Lombardi , 727 A.2d 670 (R.I. 1999) ; State v. Acrey , 148 Wash. 2d 738, 64 P.3d 594 (2003) ; State v. Kelsey C.R. , 243 Wis.2d 422, 626 N.W.2d 777 (2001).People v Hannaford, supra note 53, 167 Mich. App. at 152, 421 N.W.2d at 610.
In State v. Diloreto, we held that knowledge of a missing gun provided exigent circumstances to search a vehicle, notwithstanding the occupant's arrest. State v. Diloreto, 362 N.J. Super. 600, 627 (App. Div. 2003), aff'd, 180 N.J. 264 (2004). We noted that when a gun is missing, there is "a real danger" that it can fall into "malevolent, untrained, or immature hands."
Specifically, we noted that defendant had not yet decided whether he would exercise his right to withdraw from the first plea agreement after his successful appeal of the severance motion. See State v. Diloreto, 362 N.J. Super. 600, 616 (App. Div. 2003) (permitting a defendant to choose not to withdraw a guilty plea after succeeding on appeal from a conditional guilty plea). Our remand order directed the trial court to convene a hearing at which defendant would announce his decision whether to withdraw from the first plea agreement.