Opinion
DOCKET NO. A-2928-12T4
02-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIEL RUSSO, Defendant-Appellant.
John D. Williams argued the cause for appellant (Nicosia Fahey & Williams, attorneys; Mr. Williams, of counsel; Vanessa L. Henderson, on the brief). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Sara B. Liebman, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 05-01-00018 and 05-01-00019. John D. Williams argued the cause for appellant (Nicosia Fahey & Williams, attorneys; Mr. Williams, of counsel; Vanessa L. Henderson, on the brief). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This is a companion case to State v. Eldakroury, ___ N.J. Super. ___ (App. Div. 2015), which we also decided today. Both cases arise out of continuing criminal and civil litigation involving Hott 22, an establishment that features live nude entertainment. In this case, defendant Daniel Russo appeals from a trial court order dated January 18, 2013, "reinstating" defendant's conviction for operating a sexually oriented business within 1000 feet of a residential area, in violation of N.J.S.A. 2C:34-7(a), and denying his motion to dismiss the indictments. Defendant raises the following issues on this appeal:
I. THERE WAS NO BASIS UPON WHICH THE LOWER COURT COULD LEGITIMATELY "REINSTATE" RUSSO'S CONVICTION, WHICH HAD BEEN VACATED BY THIS COURT.
II. THE LOWER COURT ERRED IN NOT VACATING OR ALLOWING WITHDRAWAL OF RUSSO'S GUILY PLEA. R. 3:9-2; R. 3:21-1.
A. The Lower Court Erred In Not Vacating Russo's Plea, As It Was Entered Without Adherence To The Requirements Of Rule 3:9-2.
B. The Lower Court Erred In Its Application Of The Slater Factors To Deny Russo's Motion To Withdraw His Plea.
III. GIVEN THE CONTEXT OF THIS AND THE COMPANION ELDAKROURY APPEAL, ERRORS IN THE STATE'S GRAND JURY PRESENTATION SUPPORT THIS COURT'S EXERCISE OF ITS ORIGINAL JURISDICTION TO DISMISS THE INDICTMENTS AGAINST RUSSO. R. 2:10-5.
IV. N.J.S.A. 2C:34-7(d) SHOULD BE DECLARED UNCONSTITUTIONAL BY THIS COURT.
A. N.J.S.A. 2C:34-7 Is Void For Vagueness.
B. N.J.S.A. 2C:34-7 Deprives A Defendant Of Equal Protection Under The Law.
We agree with defendant's Points I and II. Defendant pled guilty on August 11, 2008, reserving his right to pursue a First Amendment constitutional challenge to the sexually oriented business statute "as applied to the facts of these two indictments." He was sentenced to fines and probation, but the sentence was stayed pending appeal. In an earlier opinion in this same case, we vacated defendant's conviction and stayed further prosecution of the criminal charges against defendant, pending a decision by the Law Division, Civil Part, of his First Amendment challenge. We noted the disposition of the criminal appeal as "[r]eversed and remanded." State v. Russo, No. A-0662-08 (App. Div. Sept. 17, 2010). The Law Division, Civil Part, eventually ruled against defendant on the constitutional issues, and we affirmed that decision. D. Russo, Inc. v. Romankow, No. A-3483-10 (App. Div. Dec. 2, 2011), certif. denied, 210 N.J. 219 (2012).
However, based on our review of the record, we did not reinstate defendant's conviction nor did we vacate the stay earlier imposed against further prosecution. In 2012, the State filed a motion before the Criminal Part, asking the trial court to reinstate defendant's 2008 conviction and resentence him. In response, defendant filed a motion to withdraw his guilty plea and dismiss the indictments. The trial court denied the motion to withdraw the guilty plea on the merits and denied the motion to dismiss the indictments as moot.
We conclude that the procedure the State, and the trial court, followed here was incorrect, although understandable. Instead of filing a motion in the trial court, the State should have filed a motion with this court to lift the stay. Absent an order of this court lifting the stay and directing further proceedings in the prosecution, the trial court had no authority to entertain the State's motion to "reinstate" defendant's conviction.
However, since the parties are now before us, and the interests of justice warrant our considering the substantive issues, we address defendant's second point. This case concerns an alleged violation of N.J.S.A. 2C:34-7(a), which provides in relevant part: "[N]o person shall operate a sexually oriented business . . . within 1,000 feet of any area zoned for residential use." In Eldakroury, we held that "the location of the business is a material element of the offense and the State must prove that defendant acted knowingly with respect to that element." Supra, ___ N.J. Super. at ___ (slip op. at 2). Thus, the State must establish that defendant not only knowingly operated a sexually oriented business but also knew that the business was within 1000 feet of a residential zone, or other protected area listed in the statute.
In this case, Russo argues, among other things, that there was not a sufficient factual basis for his guilty plea because he was not asked during the plea hearing whether he knew the business was within 1000 feet of a residential area. After reviewing the record, including the transcript of the plea hearing, we are constrained to agree.
By way of background, the State prosecuted Russo, Eldakroury and Kevin Hickey, all of whom owned or operated Hott 22 at various times. The same judge who presided over Russo's plea hearing later held, in Hickey's case, that the State did not have to prove defendant's knowledge of the business's location. See id. at ___ n.6 (slip op. at 6). Moreover, that was the State's consistent position in all three cases. For example, in this case, a grand juror asked the prosecutor, "Does the law say that you have to know that you're operating outside [sic] of 1,000 feet?" The prosecutor responded "No" and then instructed the grand jury that "we don't have to prove that they [defendants] know that it's within 1,000 feet of a [proscribed] area." Hence, it is understandable that the knowledge-of-location issue was not specifically addressed at Russo's plea hearing.
Several other co-defendants were charged along with Russo. They are not involved in this appeal.
The plea colloquy does not establish for certain that defendant knew the business's location at the time of the plea hearing, and clearly does not establish that defendant knew that it was within 1000 feet of a residential area at the time he was operating the business, which is the relevant time frame. We set forth the pertinent portion of the transcript below:
[COURT]: And you'd agree that that business is within 1,000 feet of municipal or county playgrounds?
[RUSSO]: I'm not really sure.
[DEFENSE COUNSEL]: I think it's a residence, Your Honor. It's clearly within —
[PROSECUTOR]: A thousand feet of residential property.
[DEFENSE COUNSEL]: — a thousand feet of a residence.
THE COURT: Residential property?
[DEFENSE COUNSEL]: There's a whole list of property, church, residence, school, but it's clearly within a thousand feet —
[RUSSO]: It's residents.
Further, at the sentencing hearing on October 3, 2008, defense counsel and the prosecutor discussed defendant's contention that Hott 22 was not actually within 1000 feet of a residential area, and that the statute was ambiguous as to how the distance was to be measured. Eventually, defense counsel abandoned the argument. However, it is clear to us that no one involved in the plea process was concerned with having defendant admit that he knew Hott 22 was within 1000 feet of a residential area when he was operating the business, as opposed to admitting that it was within that distance whether he knew it or not. Those two admissions are not the same, and the distinction is critical in terms of the legal adequacy of the plea.
Before accepting a defendant's guilty plea, the court must determine "by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea." R. 3:9-2. "[O]ur law requires that each element of the offense be addressed in the plea colloquy." State v. Campfield, 213 N.J. 218, 231 (2013). The "court must be satisfied from the lips of the defendant that he committed the acts which constitute the crime." State ex rel. T.M., 166 N.J. 319, 327 (2001) (citation and internal quotation marks omitted); State v. Tate, ___ N.J. ___, ___ (2015) (slip op. at 14-15); State v. Perez, ___ N.J. ___, ___ (2015) (slip op. at 10). "The trial court's task is to ensure that the defendant has articulated a factual basis for each element of the offense to which he pleads guilty." Campfield, supra, 213 N.J. at 232. The Court has recently emphasized "that it is essential to elicit from the defendant a comprehensive factual basis, addressing each element of a given offense in substantial detail, when a defendant is pleading guilty to that offense." Id. at 236; see also State v. Gregory, ___ N.J. ___, ___ (2015) (slip op. at 7).
A guilty plea that is not supported by a sufficient factual basis will be set aside on appeal:
The remedy for an inadequate factual basis is an order vacating the guilty plea and restoring both parties to their positions prior to the trial court's acceptance of the plea. If an appellate court determines that "a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated, and defendant allowed to re-plead or to proceed to trial."
[Campfield, supra, 213 N.J. at 232 (quoting State v. Barboza, 115 N.J. 415, 420 (1989)).]
As the Supreme Court recently held, our review of the trial court's decision here is de novo. Tate, supra, ___ N.J. at ___ (slip op. at 11). In light of our construction of N.J.S.A. 2C:34-7(a), we conclude that the factual record created at the plea hearing was insufficient to establish that defendant violated the statute. As a matter of law, the facts defendant admitted, even inferentially, did not establish that he acted knowingly as to both material elements of the offense — operation of a sexually oriented business, and operation within 1000 feet of a protected area. See Eldakroury, supra, ___ N.J. Super. at ___ (slip op. at 6-7); cf. Gregory, supra, ___ N.J. at ___ (slip op. at 8 n.2) (noting that intent is irrelevant with respect to the location element of a school zone drug offense). Consequently, we vacate his guilty plea and reverse his conviction.
In light of our decision, we do not address defendant's additional arguments on this point, which are based on State v. Slater, 198 N.J. 145 (2009).
Addressing defendant's Point III, we do not find it necessary to exercise original jurisdiction, because the trial court ruled on and denied defendant's motion to dismiss the indictments. Therefore, given our decision vacating defendant's guilty plea, the issue concerning the indictments is now properly before us. In light of our holding in Eldakroury, we reverse the trial court's order denying defendant's motion to dismiss the indictments. As in Eldakroury, the prosecutor instructed the grand jury that the State did not have to prove that defendant knew that the business was within 1000 feet of a residential zone. Because that instruction was "blatantly wrong," the indictment must be dismissed without prejudice. Eldakroury, supra, ___ N.J Super. at ___ (slip op. at 7); State v. Triestman, 416 N.J. Super. 195, 205 (App. Div. 2010). Nothing in our opinion precludes the State from re-presenting the case to the grand jury, with correct legal instructions.
However, given the tortured history of this case, we would also find it appropriate to exercise original jurisdiction, to avoid more years of litigation over an indictment that is hopelessly flawed.
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Finally, we decline to address defendant's Point IV. In pleading guilty, defendant reserved the right to raise a First Amendment challenge, R. 3:9-3(f), but he did not reserve the right to litigate the additional constitutional issues he now seeks to raise on this appeal. See State v. Knight, 183 N.J. 449, 471 (2005). Nor were those issues addressed by the trial court. Hence, the issues are not properly before us on an appeal from the conviction arising from his guilty plea, and we will not address them for the first time here. Assuming that the State continues its prosecution of defendant, he may raise those constitutional issues in the trial court.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION