Opinion
DOCKET NO. A-5541-12T2
12-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TUAN DANG, Defendant-Appellant.
Thomas R. Ashley argued the cause for appellant (Law Offices of Thomas R. Ashley, attorney; Mr. Ashley, on the brief). Ian C. Kennedy argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Paul Salvatoriello, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-11-0158. Thomas R. Ashley argued the cause for appellant (Law Offices of Thomas R. Ashley, attorney; Mr. Ashley, on the brief). Ian C. Kennedy argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Paul Salvatoriello, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Tuan Dang pleaded guilty to being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3, and was sentenced to twenty years imprisonment in accordance with his plea agreement. He appeals the trial court's denial of his motions to suppress physical evidence and his statements to the police, and also challenges the adequacy of his plea colloquy as required by Rule 3:9-2. We affirm.
On November 20, 2010, a State Grand Jury returned a twenty-three count indictment against defendant and two others. The indictment arose from police discovery of one of the largest marijuana growing and manufacturing operations found in New Jersey. Thousands of marijuana plants were being grown and cultivated in at least four houses in Monroe and Old Bridge Townships in Middlesex County, Millstone Township in Monmouth County, and Stafford Township in Ocean County.
Being a leader of a narcotics trafficking network, a first-degree crime sometimes called a "drug kingpin" charge, State v. Afanador, 134 N.J. 162, 165 (1993), carries potential sentencing exposure of life imprisonment, twenty-five years of which must be served before eligibility for parole. N.J.S.A. 2C:35-3. In addition to that offense, defendant was charged with one count of second-degree conspiracy, N.J.S.A. 2C:5-2; four counts of first-degree maintaining or operating a marijuana production facility, N.J.S.A. 2C:35-4; four counts of first-degree manufacturing marijuana, N.J.S.A. 2C:35-5(a)(1), -5(b)(10)(a); one third-degree and three first-degree counts of possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (b)(10)(a); three counts of third-degree theft of services, N.J.S.A. 2C:20-8(a), -2(b)(2)(a); three counts of third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(2), -3(b)(1); one count of second-degree money laundering, N.J.S.A. 2C:21-25(a); and one count of second-degree attempted bribery of a State Police detective, N.J.S.A. 2C:27-2(c).
After conducting hearings on defendant's motions to suppress evidence, the trial court denied the motions by written opinion, except that part of his formal post-arrest statement was suppressed.
On April 15, 2013, defendant entered into a plea agreement with the State and pleaded guilty to the drug kingpin charge. He preserved his right to appeal the denial of his suppression motions. The State agreed to dismiss the other charges of the indictment and for the court to impose a sentence of twenty years imprisonment with ten years of parole ineligibility. On June 14, 2013, the court sentenced defendant in accordance with the plea agreement.
On appeal, defendant argues:
POINT I
THE WARRANTLESS SEARCH OF [] SPOTSWOOD ROAD WAS ILLEGAL AND VIOLATED DEFENDANT'S RIGHTS.
POINT IIWe find no reversible error in defendant's conviction or sentence.
DANG'S TWO POST-ARREST STATEMENTS MUST BE SUPPRESSED.
POINT III
THE JUDGMENT MUST BE VACATED AS THE COURT BELOW FAILED TO ADDRESS AND DEFENDANT DID NOT KNOWINGLY AND VOLUNTARILY WAIVE HIS BOYKIN RIGHTS. (Not raised below).
POINT IV
THE COURT BELOW COMMITTED PLAIN ERROR BY ADVISING DEFENDANT IT WOULD CONSIDER A SENTENCE BELOW THE RECOMMENDED BRIMAGE SENTENCE AND NOT ADVISING DEFENDANT IT HAD NO AUTHORITY TO IMPOSE SENTENCE BELOW THE RECOMMENDED BRIMAGE SENTENCE. (Not raised below).
POINT V
THE JUDGMENT MUST BE VACATED BECAUSE DEFENDANT'S GUILTY PLEA ALLOCUTION DID NOT ESTABLISH ALL THE ELEMENTS COMPRISING BEING A "LEADER OF A NARCOTICS TRAFFICKING NETWORK." (Not raised below).
I.
In reviewing a motion to suppress evidence, an appellate court must defer to the trial court's fact findings and "feel" of the case and may not substitute its own conclusions regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)); State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007). In particular, we must defer to the credibility determinations of the trial court between competing factual testimony. Locurto, supra, 157 N.J. at 474. In this case, the trial court's credibility determinations and findings of fact are well-supported by the evidential record.
The police first became aware of the marijuana growing operation on February 17, 2010. Shortly after midnight on that date, Monroe Township police officers on routine patrol smelled a strong odor of burning marijuana along Spotswood-Englishtown Road. Officer Cristan Mariano saw a haze-like smoke across the roadway and also smelled a strong odor of burning marijuana. She saw that the smoke was coming from the chimney of a home. She parked nearby and walked toward the house with other officers.
From the driveway of the house, Mariano saw that the front door was open but a screen door was closed. She saw the silhouette of a man looking out the open front door. As she rushed to the door, the man stepped back and quickly closed the door. Mariano knocked on door. There was a strong smell of burning marijuana, and she could also detect now the smell of raw marijuana coming from the house.
A man later identified as Thu N. Nguyen asked from inside who was at the door. Mariano said it was the police and ordered him to open the door. Nguyen opened the door about five inches and asked "what the problem was." When he began to shut the door again, Mariano put her foot in the doorway and stopped him from closing it. Mariano and several other officers then pushed the door open and rushed in. Mariano grabbed Nguyen by the arm. He did not resist and stepped backwards into the house.
From the foyer, Mariano could see marijuana plants burning in a fireplace and a box containing what appeared to be more marijuana plants next to the fireplace. She also saw a television set being used as a split-screen surveillance system. One of the screens showed a view of the front door and others seemed to show that areas outside the house were being monitored. The officers sat Nguyen down on a chair in the kitchen and asked him if anyone else was in the house. At first, he did not respond at all. Eventually he said "he just got there and he was watching the house for a friend."
According to counsel at oral argument before us, police reports indicated that marijuana stalks and other debris from the manufacturing operation were being disposed of by burning them in the fireplace.
The officers conducted a protective sweep of the house to determine whether anyone else was present. In the basement, they found a large marijuana growing operation. There were rows of pots with marijuana plants and cut plant stalks. The basement was equipped with ceiling fans, a lighting system, and plastic covering the walls, all used to create the proper environment to grow the plants and to conceal the operation from observation. Later, the police discovered that the electric meter of the house had been bypassed to avoid recording the high amount of electricity being used to light the basement and grow the plants.
See Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108 L. Ed. 2d 276, 281 (1990); State v. Gamble, 218 N.J. 412, 426 (2014); State v. Davila, 203 N.J. 97, 117 (2010).
With Nguyen in custody and no one else present, the officers secured the house and waited outside for a search warrant, which they obtained and executed later that day. They seized 1,064 marijuana plants, about fifty pounds of processed marijuana, and equipment for the growing and manufacturing operation.
The State Police immediately joined the investigation and pursued leads to find other participants in the operation. They obtained information and conducted surveillance of the person who typically paid the rent on the Monroe Township house, a woman later identified as defendant's girlfriend, Ngoc Bui. They observed her the next day leaving a residence in Old Bridge Township with a man who was subsequently identified as defendant. The two drove in a van to another residence in Millstone Township. The police made a warrantless entry of that home and found a second marijuana growing operation. They arrested Bui and defendant.
Eventually, the police obtained and executed eight search warrants for homes in three counties. They discovered marijuana growing operations similar to the one in Monroe Township, including many plants, the same kind of equipment, and electric meters similarly bypassed. They also found more than fifteen pounds of processed marijuana in the van that defendant and Bui were driving on the day of their arrest. Altogether, the physical evidence gathered against defendant consisted of thousands of marijuana plants, more than one hundred pounds of processed and packaged marijuana, and equipment used in the operation.
Defendant argues the initial warrantless entry and search of the Monroe Township house was a violation of the Fourth Amendment of the United States Constitution and of Article I, paragraph 7 of the New Jersey Constitution, and that all of the physical evidence is inadmissible as fruits of that initial illegal search.
A warrantless entry or search of a residence is presumptively unreasonable and therefore constitutionally prohibited unless the police can show "exigent circumstances in conjunction with probable cause" and proof of the reasonableness of the police conduct. State v. Walker, 213 N.J. 281, 289 (2013) (quoting State v. Bolte, 115 N.J. 579, 585-86, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989)); accord State v. Vargas, 213 N.J. 301, 313-14 (2013); State v. Valencia, 93 N.J. 126, 136 (1983). "Under state as well as federal constitutional norms, '[a] warrantless search of a person's home must be subjected to particularly careful scrutiny, because physical entry of the home is the chief evil against which the wording of the Fourth Amendment is direct[ed].'" State v. Hinton, 216 N.J. 211, 233 (2013) (alterations in original) (quoting State v. Cassidy, 179 N.J. 150, 160 (2004)); accord Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284, 1290, 157 L. Ed. 2d 1068, 1079 (2004).
The State argues that defendant's rights were not violated by the warrantless police entry and search because the Monroe Township house was not his home. Defendant did not live there and was not present when the police actions occurred.
In New Jersey, "a criminal defendant [has standing] to bring a motion to suppress evidence obtained in an unlawful search and seizure if he has a proprietary, possessory or participatory interest in either the place searched or the property seized." State v. Alston, 88 N.J. 211, 228 (1981); accord State v. Brown, 216 N.J. 508, 528-29 (2014). "[S]tanding to seek suppression of evidence" is a "separate issue" from "the existence of a reasonable expectation of privacy," which pertains to the merits of the police action. Hinton, supra, 216 N.J. at 235. Nevertheless, the State cannot argue credibly in the circumstances of this case that defendant had no expectation of privacy in a house where he was allegedly conducting an illegal marijuana growing and manufacturing operation.
In seeking suppression of the evidence, defendant does not contend the police lacked probable cause to believe that evidence of criminal activity could be found in the Monroe Township house. He acknowledges that the smell of burning marijuana coming from the chimney and permeating across the road could establish probable cause. Instead, he contends the police were still required to apply for a search warrant before they could enter the house. He argues there were no exigent circumstances or other exceptions to the constitutional warrant requirement that justified the warrantless police entry and search.
In Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732, 743 (1984), the Court stated: "Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Accord Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980); Walker, supra, 213 N.J. at 289. Here, the State established exigent circumstances because evidence of criminal activity involving a substantial amount of marijuana was being destroyed as the police knocked on the door and sought entry.
Defendant argues that smelling contraband in a home is not sufficient to establish exigent circumstances for warrantless entry. He contends that the United States Supreme Court so held in Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 2d 436 (1948), a case that defendant contends is directly on point and requires suppression of the evidence in this case.
In Johnson, an informant told police of persons smoking opium in a hotel room. Id. at 12, 68 S. Ct. at 368, 92 L. Ed. 2d at 439. Police investigated and smelled "a strong odor of burning opium" coming from the room. They knocked and announced themselves as police. Ibid. After a delay during which the police heard some "shuffling or noise," the defendant opened the door. The police entered without a warrant and arrested her. They searched the room and found opium and a smoking device. Ibid.
The Supreme Court declared the police entry and search violated the Fourth Amendment. Id. at 13-15, 68 S. Ct. at 368-69, 92 L. Ed. 2d at 440-41. The Court noted that "[n]o suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear." Id. at 15, 68 S. Ct. at 369, 92 L. Ed. 2d at 441. See also Taylor v. United States, 286 U.S. 1, 6, 52 S. Ct. 466, 467, 76 L. Ed. 951, 953 (1932) (the smell of whiskey coming from a garage did not create exigent circumstances for warrantless entry by federal prohibition agents).
We disagree with defendant's argument that the facts are the same here. In this case, a large cloud of smoke that smelled like marijuana was coming from the chimney. Unlike in Johnson and Taylor, evidence was being destroyed as the police stood outside the house. Destruction of evidence alone may create exigent circumstances for a warrantless entry or search. See Kentucky v. King, ___ U.S. ___, ___, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865, 875 (2011); State v. Nishina, 175 N.J. 502, 518 (2003). Not only did the burning of a large quantity of marijuana provide probable cause for the entry and search of the house, it established exigent circumstances for immediate action without a warrant.
We reject without discussion, R. 2:11-3(e)(2), defendant's argument that the burned remains of the marijuana would also have been evidential, and therefore, the police could have waited and applied for a search warrant without losing significant evidence.
Defendant argues that equating the odor of burning marijuana with exigent circumstances would permit the police to enter many residences without a warrant whenever they can justify their actions by the smell of a burning marijuana cigarette. In State v. Holland, 328 N.J. Super. 1 (App. Div. 2000), rev'd on other grounds, 176 N.J. 344 (2003), we stated that the smell of burning marijuana establishes probable cause but not exigent circumstances to make a warrantless entry and search when it shows nothing more than probable cause that a disorderly persons offense is being committed. Id. at 7-8, 10-11 (citing Welsh, supra, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732); see also Bolte, supra, 115 N.J. at 597 (no showing of exigent circumstances for warrantless entry of the suspect's home where police were not investigating a serious criminal offense).
The facts in this case differ significantly from those of Holland. Smoke flowing out of a chimney and wafting across the road did not indicate that one or a few persons were smoking marijuana in the house. The smoke and strong smell reasonably led the police to suspect that a much more serious offense was being committed in the house and it involved substantial quantities of marijuana. The nature and seriousness of the offense for which probable cause is shown affects whether exigent circumstances exist to justify a warrantless entry.
We also reject defendant's contention that the police created the exigency by knocking on the door. Defendant argues the police should have waited quietly outside while applying for a warrant. However, marijuana was being burned in the fireplace and evidence was being destroyed before the police ever approached and knocked on the door. In addition, as shown after the police entered, the house was equipped to monitor any activity immediately outside. Delay likely meant the destruction of a substantial amount of highly incriminatory evidence would occur before a warrant could be obtained.
Moreover, the Unites States Supreme Court has analyzed and rejected the argument that the police act unreasonably if they approach a home without a warrant and attempt to investigate their suspicions further when they have already obtained probable cause. See King, supra, ___ U.S. at ___, 131 S. Ct. at 1857-62, 179 L. Ed. 2d at 875-81. Neither the federal nor the State constitution require that the police remain inactive while evidence is actually being destroyed.
The State proved both probable cause and exigent circumstances for the warrantless entry of the Monroe Township home. The trial court correctly denied defendant's motion to suppress physical evidence seized from that home and other locations.
II.
The following facts were developed at the suppression hearing with respect to defendant's challenge to admissibility of his post-arrest statements.
When defendant and Bui were arrested at the Millstone Township residence, Detective Christopher Wright advised defendant of his Miranda rights in English. The police then transported defendant to the police station and placed him in a holding cell. While in the holding cell, defendant attempted to bribe Detective Wright.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Defendant gestured to Wright to come to him. He offered Wright $100,000 if he would let him go. Wright did not respond immediately. Instead, he reported the offer to his superiors. He then returned to defendant's cell wearing a concealed body recorder, and defendant repeated the offer. Wright negotiated for a higher amount, $250,000, and questioned defendant about how he would get him the money. In the first recorded conversation, about fifteen minutes in length, defendant and Wright discussed the amount of the bribe and potential ways to pay Wright through others. In a third conversation, again recorded, defendant agreed to pay $150,000. Wright eventually told defendant the proposition was too risky and concluded the bribery investigation.
Defendant argues the evidence of his attempted bribe was inadmissible because he was in custody and the police were required to give him Miranda warnings before they could engage in questioning him about the bribe offer. Miranda only applies to statements made by defendants in custody in response to "express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 307-08 (1980); accord State v. Stott, 171 N.J. 343, 365 (2002). Miranda does not apply to statements made by a defendant who initiates a conversation with the police. State v. Cryan, 363 N.J. Super. 442, 453-54 (App. Div. 2003).
Here, Wright had read defendant his Miranda rights at the time of the arrest. He did not give a second set of warnings when he approached defendant wearing a concealed recording device, but defendant initiated that conversation. Defendant's contention that re-administration of Miranda warnings must occur before the police may investigate a bribe offered at police headquarters would make such a covert investigation useless. As we stated in Cryan, when "in the course of . . . unsolicited conversations a defendant makes self-incriminating statements to the police, he has only himself to blame." Id. at 454. There was no violation of defendant's Fifth Amendment rights in the manner that the police investigated defendant's bribe offer.
After his attempt to bribe Detective Wright failed, defendant was questioned by Detective Robert Wronski. Officer Tan Nguyen of the Middlesex County Sheriff's Office assisted with the interview as a Vietnamese interpreter for defendant. Nguyen was called to assist although it appeared that defendant understood "the English language very well," and much of the interview by Wronski was conducted in English.
Wronski read the Miranda warnings to defendant in English from a Miranda rights card, and Nguyen read them in Vietnamese. Defendant said he understood his rights and signed the card. The formal taped interview lasted about seventy-five minutes, and defendant made a number of admissions about his involvement in the marijuana growing and distribution operation. He claimed that all the marijuana plants discovered in the several houses were his and not Bui's.
Towards the end of the interview, defendant asked if he could call his sister to arrange for an attorney for him. Wronski asked defendant to elaborate on this request. After confirming that defendant wanted an attorney if the questioning were to be continued, Wronski said he had no other questions. At that point, Nguyen told defendant in Vietnamese to make sure he was honest. Defendant then volunteered additional information about his sale of marijuana to a man in North Carolina and about a marijuana growing operation in Texas. The trial court suppressed about fifteen minutes of defendant's taped statement that followed his request to talk to his sister about retaining an attorney.
Defendant argues that the trial court erred in concluding that he knowingly and voluntarily waived his rights when he made the recorded statement. He claims his proficiency in English is limited, and he did not understand his rights or the concept of waiving those rights. He also argues there was no explicit waiver noted on the card he signed, and Wronski never asked him whether he wanted to waive his rights
In its letter-opinion, the trial court found that the police advised defendant of his Miranda rights in both English and Vietnamese. The court further found:
After his rights were read, and the card signed defendant was asked: now that you were read your rights do you wish to talk to us; to which the defendant responded in English "yes.' Much of the conversation between defendant and the detectives was in English, which defendant seemingly understood. Defendant even laughed appropriately when the detectives made comments intended to be humorous. Officer Nguyen was able to speak to defendant and it is clear that defendant understood what was said when translated. As this court observed during the [suppression] hearing, [defendant] answered questions in English before the translation . . . .Thus the court found there was no language problem in defendant's understanding and waiving of his right not to speak to the police.
The court also considered and rejected defendant's several arguments regarding the interpreter's conversations with him in Vietnamese, and his contention that he agreed to speak to the police only because they promised to release Bui if he made a statement.
We find nothing in the record to warrant reversal of any of the trial court's findings and conclusions. The trial court correctly denied defendant's motion to suppress his post-arrest statements.
III.
Defendant argues that his plea colloquy was inadequate and did not establish a sufficient record that he was entering the guilty plea knowingly and voluntarily or that he was guilty of the drug kingpin charge.
At the plea hearing, the court engaged in a colloquy with defendant to ensure his understanding and the voluntariness of the plea and its consequences, as required by Rule 3:9-2. Among other acknowledgments, defendant agreed that he had reviewed with his attorney the questions and answers on the plea form, that he understood the contents of the form, and that he signed it. After that exchange, the court asked if defendant had any questions, and the following occurred:
DEFENDANT: I just want to say now that, because the first time I commit this crime, can you please reconsider my case?
COURT: Okay. So if I understand you right, you committed the crimes and he wants me to consider his case?
DEFENDANT: I want to ask you can you reduce at the time of sentencing?
COURT: All right. Well, we will talk about that in a moment. But for right now, did you have enough time to go over these forms with your attorney?
DEFENDANT: Yes
Defendant contends this colloquy shows he did not understand the sentencing court would not have any authority to deviate from the State's recommended sentence of twenty years imprisonment with ten years of parole ineligibility since it was a so-called Brimage plea subject to mandatory sentencing guidelines. See N.J.S.A. 2C:35-12; State v. Brimage, 153 N.J. 1 (1998). Defendant adds that, at his sentencing, he again asked the court to be more lenient than the sentence stated in the plea agreement, thus demonstrating his misunderstanding of the court's sentencing authority.
However, the court never told defendant that he could be sentenced to anything less than the sentence stated in the plea agreement. The excerpt from the plea colloquy we have quoted indicates that the court was deferring until later in the colloquy a discussion of the sentence defendant would receive. A few minutes after the quoted exchange, the court referenced the negotiated sentence of twenty years with ten years of parole ineligibility and told defendant, "[t]hat's what your sentence is. . . . Do you understand?"
In sum, the plea colloquy as a whole does not support defendant's argument that the court misled him to believe he could be sentenced to a lower term than stated in the plea agreement.
Next, defendant argues his plea was not knowingly and intelligently made because the trial court did not explicitly inform him of certain rights as listed by the Supreme Court in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274, 279 (1969), namely, that he would be waiving his right to trial by jury, the right to remain silent and not to incriminate himself, and the right to confront witnesses against him. These rights were listed in the plea form that defendant reviewed with his attorney and signed. He indicated through colloquy with the court that he understood those rights.
Last, defendant argues that his guilty plea allocution did not establish a factual basis for his plea to the drug kingpin offense. The four elements of a violation of N.J.S.A. 2C:35-3 are that: (1) defendant conspired with two or more persons; (2) the purpose of the conspiracy included a scheme or course of conduct to manufacture, distribute, dispense, bring into the State or transport a controlled dangerous substance; (3) defendant was a financier, or an organizer, supervisor or manager of at least one other person; and (4) defendant occupied a high-level position in the conspiracy. See State v. Alexander, 136 N.J. 563, 570-71 (1994); accord State v. Afanador, 151 N.J. 41, 46 (1997); Model Jury Charge (Criminal), "Leader of Narcotics Trafficking Network" (2000).
Defense counsel elicited the factual basis for defendant's guilty plea through the following questions and answers:
Q: Now, you understand that you are pleading to Count Two which charges you with being a Leader of a Narcotics Trafficking Network?Defense counsel and the prosecutor then established that the marijuana growing and manufacturing operation was conducted in a number of houses in several counties in New Jersey.
A: Yes.
Q: And is it a fact, [defendant], that at some point between January 1, 2007 and February 20th, 2010 that you conspired with Thu Nguyen and Ming Bui as a supervisor?
A: Yes.
Q: And with respect to being a supervisor, did you agree and conspire that you would with, also Thu Nguyen and Ming Bui engage for profit in a course of conduct, that is the sale of marijuana for the purpose of unlawfully distributing it to others?
A: Yes.
In his version of the offense for the presentence investigation report, defendant stated he "was not a leader and . . . each person took care of a house and they all worked together and all helped each other." At his sentencing, the court undertook to ensure that defendant was not backing away from his admissions at the time of the guilty plea. Defense counsel represented that he had discussed the matter with defendant and defendant understood his plea to the kingpin charge required that he have supervised at least one other person. The court asked whether defendant had testified truthfully at his plea allocution. Defendant answered "yes." The court was satisfied that defendant was not recanting his admissions. Defendant again asked for leniency but did not ask to withdraw his guilty plea.
Citing Alexander, supra, 136 N.J. at 575, defendant now argues that his plea allocution failed to establish the third and fourth elements of the offense, namely that he supervised others and was a high-level leader of the conspiracy. He asserts that a supervisor under the statute must not only supervise others but also "oversee the drug trafficking operation." Defendant contends he did not admit to being that type of supervisor or having authority or control over the operation as a whole.
It is true that the factual basis created at the plea hearing was lacking in detail. See State v. Smullen, 118 N.J. 408, 415 (1990). Either the prosecutor or the court should have questioned defendant more extensively to elicit admissions and further information about his role in the criminal operation. Nevertheless, the record reflects that defendant understood the nature of the charge, knowingly and voluntarily entered into a plea agreement that capped his sentencing exposure far below the maximum allowable sentences if he had been convicted at trial, and admitted that he was a supervisor of at least two other people involved in the conspiracy. Furthermore, the court had heard testimony at the suppression hearing indicating that defendant traveled with Bui to several locations where the growing and manufacturing operation was being conducted. After his arrest, defendant admitted that the marijuana was his and claimed that none of it belonged to Bui. He offered a six-figure bribe to a State Police detective in exchange for his release.
All of these circumstances combined to provide enough evidence for the trial court to accept defendant's guilty plea as adequately supported by the evidence. See State ex rel. T.M., 166 N.J. 319, 327 (2001) ("[A] factual basis, established either through inquiry of others, which a defendant acknowledges, or through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy."); Smullen, supra, 118 N.J. at 415 (adequate factual basis must be evaluated "in the context of the entire plea colloquy"). A better plea record would have avoided some issues defendant raises on appeal, but no reversible error occurred in the taking of defendant's guilty plea.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION