STATE v. GREGORY (2013)

Following the granting of the State's pre-trial motion to withhold disclosure of the surveillance location used in defendant's arrest, defendant, Tahir S. Gregory, entered into a negotiated plea to one drug charge, while preserving the right to appeal that issue. On appeal, he also challenges his conviction on the grounds that the court failed to explain to him that he was giving up his right to a trial where the jury would have to find him guilty beyond a reasonable doubt and the factual basis for his plea was insufficient, and challenges his sentence on the grounds that the court failed to articulate its sentencing rationale. We affirm.

I.

On March 26, 2009, defendant was indicted by an Atlantic County grand jury with others as a result of a drug surveillance operation. Defendant was indicted for: third-degree possession of a controlled substance (heroin), N.J.S.A. 2C:35–10a(1) (count one); third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35–10a(1) (count two); third-degree possession of a controlled dangerous substance (heroin) with intent to distribute, N.J.S.A. 2C:35–5a(1) and 2C:35–5b(3) (count three); third-degree distribution of a controlled dangerous substance (heroin), N.J.S.A. 2C:35–5a(1) and 2C:35–5b(3) (count four); third-degree conspiracy to possess a controlled dangerous substance (heroin) with the intent to distribute, N.J.S.A. 2C:5–2 and 2C:35–5b(3) (count five); third-degree possession of a controlled dangerous substance (heroin) with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35–7 (count six); third-degree possession of a controlled dangerous substance (cocaine) with the intent to distribute, N.J.S.A. 2C:35–5a(1) and 2C:35–5b(3) (count seven); third-degree possession of a controlled dangerous substance (cocaine) with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35–7 (count eight); third-degree conspiracy to possess a controlled dangerous substance (cocaine) with the intent to distribute, N.J.S .A. 2C:5–2 and N.J.S.A. 2C:35–5b(3) (count nine); and third-degree hindering apprehension, N.J.S.A. 2C:29–3b(1) (count ten).

On July 28, 2011, pursuant to Rule 3:13–3(f), the State filed a pre-trial motion for a protective order to keep the surveillance location used in defendant's arrest from being disclosed. Following a Garcia¹ hearing, Judge Bernard DeLury, Jr., granted the State's motion. The jury was then sworn in,² then sent out because defendant expressed a desire to plead guilty. He entered an “open plea” of guilty to count six of the indictment, third-degree possession of heroin with intent to distribute in a school zone, preserving his right to appeal the motion, and the State dismissed the balance of the indictment.

On November 3, 2011, Judge DeLury sentenced defendant to an eight-year custodial term with a parole ineligibility of forty-eight months. The court also imposed appropriate fines, fees, and penalties. This appeal ensued.

II.

The following testimony was presented by Detective Michael Davis of the State Police at the August 2, 2011 hearing. On December 9, 2009, the New Jersey State Police, Atlantic City Police Department, and the Atlantic County Prosecutor's Office conducted an undercover narcotics surveillance operation targeting the Carver Hall area of Atlantic City. They set up surveillance inside a residential building, with back-up teams available to effectuate an arrest. During the operation police observed defendant partake in a drug transaction and subsequently arrested him.

Det. Davis testified that to the best of his knowledge the residential building used that day by law enforcement was still being utilized by local police for surveillance operations; however, because he no longer was assigned to Atlantic City, he could not answer with one hundred percent certainty whether the building was used for a “sneak and peak” operation in the last three months. Nonetheless, he asserted that he spoke to a detective working an operation at that surveillance site about five or six months ago. Moreover, Det. Davis believed it was possible that there could be retaliation against the building's owners and residents if the surveillance location were disclosed.

The judge expressly evaluated the motion in accordance with the standards of Rule 3:13–3(f)(1), Garcia, supra, and N.J.R.E . 515(b). Judge DeLury found Det. Davis to be highly credible, and found he “testified clearly and convincingly that he is aware of the use of the location by law enforcement up to and including some period of about five or six months ago with a hundred percent certainty[.]” The judge concluded that revealing the surveillance location would put individuals at risk of being retaliated against or placed in danger, police need to protect the location for what appears to be an ongoing usage of this location, and disclosing the location would compromise present and future prosecutions. He emphasized that the “ability to conduct surveillance aids law enforcement in effectuating hundreds of arrests for CDS-related activities in a high-crime area.”

The judge was convinced the detective had satisfied the burden of proof of a “realistic possibility that revealing the information would compromise present or future prosecutions or would possibly endanger lives or property.” Accordingly, he granted the motion subject to defendant's ability to inquire during cross-examination about the distance, ability to see, use of any handheld or other devices to enhance the view or the aspect of the scene of the alleged offense, the lighting, the time of day, and any obstructions of the police's view.

III.

On appeal, defendant argues:

POINT I

THE STATE FAILED TO ESTABLISH THAT IT WAS NECESSARY TO WITHHOLD DISCLOSURE OF THE SURVEILLANCE SITE.

POINT II

THE COURT FAILED TO DISCUSS ALL CONSTITUTIONAL RIGHTS ON THE RECORD PERSONALLY AND INDIVIDUALLY AS REQUIRED BY RULE 3:9–2 WHEN MR. GREGORY PLEADED GUILTY TO COUNT SIX OF THE INDICTMENT.

POINT III

A FACTUAL BASIS FOR A PLEA OF GUILTY WAS NOT ESTABLISHED REGARDING POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WITH INTENT TO DISTRIBUTE WITHIN 1000 FEET OF A SCHOOL BECAUSE MR. GREGORY WAS NEVER ASKED WHETHER HE POSSESSED THE CONTROLLED DANGEROUS SUBSTANCES IN ISSUE WITH THE INTENT TO DISTRIBUTE THEM.

POINT IV

THE COURT FOUND AGGRAVATING FACTORS THREE AND NINE WITHOUT ARTICULATING ITS RATIONALE FOR FINDING THEM WHEN IT SENTENCED MR. GREGORY.

Based on our review of the record and applicable law, we are not persuaded by any of these arguments and affirm.

Defendant contends Det. Davis' testimony failed to establish a realistic possibility that revealing the surveillance location would compromise present or future prosecutions or endanger lives or property. He claims the testimony “was riddled with speculation” and inconsistent with the sworn affidavit the State submitted in support of its motion. We disagree.

A court must consider the disclosure of a surveillance location on a case-by-case basis. Garcia, supra, 131 N.J. at 80, 618 A.2d 326. The State's burden to withhold that location is to “demonstrate a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property.” Id. at 78, 618 A.2d 326. If the State carries its burden, “[a]bsent some showing of need by a defendant for the exact surveillance location, the trial court should deny its disclosure.” Id. at 80, 618 A.2d 326. In other words, “a defendant must make a substantial showing of need to defeat the State's proper assertion of the privilege.” Id. at 81, 618 A.2d 326. In deciding whether defendant has established a substantial need, “the court should balance the defendant's need for that information with the public's interest in nondisclosure.” State v. Zenquis, 131 N.J. 84, 88, 618 A.2d 335 (1993). A court should consider the charged crime, possible defenses, and other relevant factors. Ibid.

The appropriate standard of review of a trial court's granting of a protective order to prohibit the disclosure of a surveillance location is “whether, after weighing the competing factors, the trial court abused its discretion.” Garcia, supra, 131 N.J. at 81, 618 A.2d 326.

Similar to Garcia, the only evidence the State presented was the testimony of the surveillance officer, but the record demonstrates there would have been sufficient opportunity for defendant to cross-examine Det. Davis at trial even without being permitted to inquire about the exact surveillance location, and thus defendant failed to make a “substantial showing” that knowing the precise location was imperative to his defense. Id. at 81–82, 618 A.2d 326. Moreover, Judge DeLury expressly informed defendant that he would have been permitted at trial to cross-examine the State's witnesses involved in the surveillance regarding visibility issues. The judge made sufficient findings supporting his determination as to the need to keep the surveillance location secret. Accordingly, we discern no abuse of discretion in his granting of the State's motion, which was amply supported by the credible evidence in the record.

There is also no factual or legal merit to defendant's argument that the court failed to inform him that he was “forfeiting his right to a jury trial of his peers where the jury could only convict if it found him guilty beyond a reasonable doubt.”

During the plea colloquy, the judge informed defendant that he was giving up his “right to trial of the facts by a jury of your peers” and the right to confront the witnesses against him, meaning “to see, hear and cross-examine the evidence the State believes it has to prove [his] guilt beyond a reasonable doubt[.]” The judge unambiguously explained to defendant that by pleading guilty he was forfeiting his right to a trial by a jury of his peers. However, the judge did not unequivocally note at that time the burden of proof at trial would be beyond a reasonable doubt.

Viewing the entire proceeding in context, we discern no constitutional infirmity. The record clearly reveals that defendant was well aware of the State's burden of proof in a jury trial. The plea form which defendant stated he read and understood explicitly states that he was giving up “[t]he right to a jury trial in which the State must prove you guilty beyond a reasonable doubt [.]” The judge inquired whether defendant had any questions regarding this form, and defendant responded in the negative. See State v. Smith, 306 N.J.Super. 370, 384, 703 A.2d 954 (App.Div.1997) (finding the fact that the defendants signed the plea forms demonstrates they were aware of the mandatory period of parole ineligibility). Moreover, during the initial colloquy the preceding day when defendant was planning to represent himself (before his co-defendant pled guilty), defendant acknowledged that the State's burden of proof in submitting the case to the jury was “reasonable doubt,” which he explained as “without a doubt.”

Contrary to defendant's next challenge, we are satisfied the factual basis for his plea was also amply established. Defendant was charged with, and pled guilty to possession of heroin with intent to distribute it within a school zone. N.J.S.A. 2C:35–7 provides, in pertinent part, that one is guilty of a third-degree crime if one distributes, or possesses with the intent to distribute, a controlled dangerous substance on or within 1000 feet of school property used for school purposes.

During the plea colloquy, defendant admitted that he was in Atlantic City, and he knowingly or purposely had heroin in his possession. The bags were not in his pocket but “someplace else,” i.e., an accessible stash. Defendant asserted he knew at the time it was heroin, and it was individually packaged, in packages the size of a stamp with “Sex and the City” markings. He also confirmed he was within 1000 feet of the New York Avenue School while in possession of the heroin.

The Supreme Court has held that the “law requires that each element of the offense be addressed in the plea colloquy.” State v. Campfield, 213 N.J. 218, 231 (2013). However, “[t]hat does not mean that a court must follow a prescribed or artificial ritual.” State ex rel. T.M., 166 N.J. 319, 327, 765 A.2d 735 (2001). This is because “different criminal charges and different defendants require courts to act flexibly to achieve constitutional ends, [and] a factual basis, established ․ through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy.” Ibid. Moreover, “[e]very alleged deficiency in the taking of a factual basis does not constitute reversible error. Only in those instances where the failure rises to constitutional dimensions is the sentenced rendered illegal.” State v. Pena, 301 N.J.Super. 158, 163, 693 A.2d 1195 (App.Div.), certif. denied, 151 N .J. 465, 700 A.2d 877 (1997).

When faced with a defendant's claim that his factual basis was insufficient, the Supreme Court has considered “the context of the entire plea colloquy,” including “the rather extensive discussion between the court and defendant concerning the written plea agreement that defendant signed and defendant's consultations with his attorney[.]” State v. Smullen, 118 N.J. 408, 415, 571 A.2d 1305 (1990).

Although defendant did not expressly state during the colloquy that he intended to sell the heroin, that is implicit based on the quantity, packaging, and defendant's conduct. Moreover, the plea form lists the charge to which defendant was pleading guilty. In addition, during the above referenced self-representation colloquy, defendant expressly acknowledged that he was not only being charged with a possessory offense, but with intent to sell the drugs. Moreover, nothing in the record suggests that defendant was unsure whether his conduct actually fell within the charge. See State v. Pineiro, 385 N.J.Super. 129, 137, 896 A.2d 480 (App.Div.2006).

We turn now to defendant's challenge to his sentence. The judge noted that defendant was thirty-two years old with an extensive criminal history, comprising twenty-two arrests resulting in seven convictions. Additionally, his juvenile record included six adjudications for serious offenses, including robbery. Accordingly, Judge DeLury concluded that aggravating factors three (risk that defendant will commit another offense), N.J.S.A. 2C:44–1(a)(3), six (prior criminal record and the seriousness of the offenses of which he has been convicted), N.J.S.A. 2C:44–1(a)(6), and nine (the need for deterrence), N.J.S.A. 2C:44–1(a)(9) applied. He found no mitigating factors. N.J.S.A. 2C:44–1(b).

Defendant urges that the court found aggravating factors three and nine without providing adequate rationale. He further asserts that mitigating factors N.J.S.A. 2C:44–1b(3) (defendant acted under a strong provocation) and (9) (the character and attitude of defendant indicate that he is unlikely to commit another offense) should have been applied. Moreover, defendant claims the court misidentified the crime for which he was being sentenced. These arguments are without merit.

In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215, 564 A.2d 1202 (1989); State v. Roth, 95 N .J. 334, 365, 471 A.2d 370 (1984). At sentencing the judge inadvertently referred to defendant's plea as “third-degree distribution in a school zone.” It was apparent from the record, however, that the judge was aware the offense was possession with intent to distribute in a school zone. Regardless, defendant does not challenge that he was extended-term eligible, and under N.J.S.A. 2C:43–7, a third-degree crime necessitates a term of imprisonment between five and ten years with a parole disqualifier. The court sentenced defendant to an eight-year custodial term with a parole disqualifier of forty-eight months. We are satisfied Judge DeLury made findings of fact regarding aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such a clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215–16, 564 A.2d 1202; Roth, supra, 95 N.J. at 364–65, 471 A.2d 370. Accordingly, we discern no basis to second-guess the sentence.

Affirmed.

FOOTNOTES

1.  State v. Garcia, 131 N.J. 67, 618 A.2d 326 (1993).

2.  One co-defendant pled guilty after the jury was selected but before it was sworn in.

PER CURIAM.