Opinion
DOCKET NO. A-5566-11T4
09-29-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES MCKOY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel an on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-06-0084. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel an on the brief). PER CURIAM
Defendant James McKoy, co-defendants Roy Harte, Sharon Vanessa Phillips, Donald H. Giddings and Gary L. Brown, were indicted by the State Grand Jury and charged with a series of crimes alleging their involvement in an interstate conspiracy to distribute large amounts of marijuana in New Jersey. The judge denied several pre-trial motions made by defendants and granted certain evidentiary motions made by the State, one of which was to permit the State to introduce a redacted version of a statement Phillips gave to law enforcement at defendants' joint trial.
On September 21, 2011, pursuant to a plea agreement with the State, defendant, Phillips and Giddings pled guilty to second-degree conspiracy to distribute marijuana, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(10)(a), and N.J.S.A. 2C:5-2 (Count One); first-degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(10)(a), N.J.S.A. 2C:35-5(c), and N.J.S.A. 2C:2-6 (Count Two); and third-degree distribution of marijuana within one-thousand feet of a school, N.J.S.A. 2C:35-7 (Count Seven). Defendant was sentenced to a twelve-year term of imprisonment with a five-year period of parole ineligibility. Defendant now raises one issue on appeal:
THE REDACTION OF A NONTESTIFYING CODEFENDANT'S CONFESSION LEFT OBVIOUS REFERENCES TO DEFENDANT'S EXISTENCE IN VIOLATION OF HIS FEDERAL AND STATE CONFRONTATION CLAUSE RIGHTS.We do not address the merits of that argument for the reasons expressed in the decision we issued in the consolidated appeals of Giddings and Phillips. See State v. Giddings, No. A-2180-11 (App. Div. June 30, 2014).
We need not detail the procedural history that followed the filing of those two appeals, or the findings made by the judge who effectuated our remand while the appeals were pending. It suffices to say we concluded that Giddings and Phillips did not preserve their rights to appeal the adverse rulings regarding certain pre-trial motions because they failed to substantially comply with Rule 3:9-3(f). Id. at 20. That Rule provides:
Conditional Pleas. With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea.We therefore dismissed those appeals, but permitted defendants to "immediately move to withdraw their guilty pleas if they so choose." Giddings, supra, slip op. at 27.
[(Emphasis added).]
Our review of the record in this appeal revealed that defendant, like Giddings and Phillips, did not substantially comply with Rule 3:9-3(f) when entering his guilty plea. We therefore asked defendant's appellate counsel and the Deputy Attorney General representing the State to address "whether defendant's guilty plea was unconditional, and, if it was, whether his guilty plea acts as a waiver of the issue now raised on appeal." We also asked counsel to address the issue in light of our decision in Giddings, supra.
The State reiterated its position that defendant "failed to preserve his right to appeal all pretrial motions in accordance with the Rule," but it did not object to permitting defendant to file a motion to withdraw his guilty plea. Defendant responded by asserting "the outcome of this case should be the same as the outcome in Giddings . . . ."
We agree that the facts presented and the legal issues involved are the same we faced in Giddings, supra. We see no principled reason to reach a different result. Therefore, the appeal is dismissed. The matter is remanded to the Law Division so that defendant may move, if he chooses, to withdraw his guilty plea. We reiterate that if such a motion is made, the court shall consider it by applying the factors set forth in State v. Slater, 198 N.J. 145 (2009).
The appeal is dismissed, and the matter remanded to the Law Division. 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