Odor of pot does not permit police to search trunk STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MAURICE HOUSTON,
Defendant-Respondent.
____________________________________________
Argued November 13, 2017 – Decided December 12, 2017
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
16-06-1965 and 16-06-1966.
Kayla Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Robert D. Laurino,
Acting Essex County Prosecutor, attorney;
Kayla Elizabeth Rowe, of counsel and on the
brief).
Thomas R. Ashley argued the cause for
respondent. NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0023-17T3
PER CURIAM
We granted the State of New Jersey leave to appeal from the
Law Division's July 28, 2017 order that granted in part defendant
Maurice Houston's motion to suppress physical evidence seized
during a warrantless search of his car. We defer to the factual
findings made by the motion judge following an evidentiary hearing
because those findings are supported by sufficient credible
evidence in the record. State v. Gonzales,
227 N.J. 77, 101
(2016).
New Jersey State Police (NJSP) Detective Joseph Palach and
Trooper Frederick Peters were on patrol in Newark when they spotted
defendant's car, a Cadillac SUV, make a turn into the parking lot
of a housing complex without signaling. As the car turned, Palach
observed the windows were tinted. Defendant parked the car in a
legal parking spot, and the officers conducted a motor vehicle
stop for the observed motor vehicle infraction.
Palach approached the car and observed defendant was not
wearing a seat belt. He also detected the smell of burnt marijuana
once defendant lowered the window. The officers removed defendant
from the car and placed him under arrest after a search of his
person produced five prescription Endocet pills, along with a
large sum of money. Defendant was placed between the officers'
car and his own, and Palach began to search the vehicle's passenger
compartment, as other officers, including NJSP Detective
Christopher Durning, arrived.
2 A-0023-17T3
Palach found a "half-smoked marijuana cigarette" in the
ashtray and detected the odor of raw marijuana. He opened a
backpack that was on the back seat, behind the driver's seat, and
found two Tupperware containers of marijuana, a digital scale and
a plastic bag containing other smaller plastic bags. Palach also
found a bottle in the backpack containing seventy-one Endocet
pills similar in nature to those found on defendant.
In addition, two baby bottles were found in the "driver's
side front seat pocket sleeve." Defendant admitted these contained
promethazine with codeine, a prescription legend drug. Defendant
acknowledged that he "paid for" the vehicle, although it was
legally owned by his sister.
After noticing the dashboard air vents "did not line up"
properly, Palach "popped out [the cover] from the dashboard" and
shone his flashlight into the space. He found a .40 caliber
handgun. Meanwhile, Durning was in the rear area of the vehicle.
He removed plastic paneling above the rear wheel well and found
two packages of marijuana in a "void." The officers took defendant
from the scene and his car was towed.
The motion judge found Palach's credibility "waned on
multiple occasions on cross-examination," and that his testimony
was "less credible." She found that Durning was credible, and she
3 A-0023-17T3
discounted Peters' testimony because he denied seeing the critical
elements of the search while he guarded defendant.1
The judge concluded the "vehicle stop was lawful" because the
officers "observed motor vehicle violations." See, e.g., State
v. Scriven,
226 N.J. 20, 33-34 (2016) ("[O]rdinarily, a police
officer must have a reasonable and articulable suspicion that the
driver of a vehicle . . . is committing a motor-vehicle violation
or a criminal or disorderly persons offense to justify a stop.").
She then concluded the officers had probable cause to arrest
defendant based upon the smell of marijuana. See, e.g., State v.
Walker,
213 N.J. 281, 290 (2013) (alteration in original) ("New
Jersey courts have recognized that the smell of marijuana itself
constitutes probable cause that a criminal offense ha[s] been
committed and that additional contraband might be present.")
(quoting State v. Nishina,
175 N.J. 502, 515-16 (2003)).
The judge found that Palach's seizure of the burnt marijuana
cigarette in the ashtray was "valid pursuant to a search incident
to arrest," and because it was in "plain view." However, she
reasoned that after defendant was "handcuffed and removed from the
car, he did not have the ability to access a weapon, destroy
potential evidence or suddenly take flight," therefore, "though
1
Defendant called Peters as a witness.
4 A-0023-17T3
the search incident to arrest started out lawfully, it did not end
that way." The judge concluded the officers had no right to search
the backpack or its contents, "or disassemble the car parts which
covered the voids and the air vents of the car."
Although the judge did not specifically address the two baby
bottles seized, the order did not suppress this evidence, or the
five Endocet pills seized from defendant or the partially burnt
marijuana cigarette. The order suppressed the remaining evidence
seized by the officers.
Relying on the automobile exception to the warrant
requirement as reformulated by the Court in State v. Witt,
223 N.J. 409 (2015), the State argues that because the officers had
probable cause to believe defendant's vehicle contained
contraband, they were free to search anywhere in the vehicle where
"there [was] probable cause to believe that the object of the
search might be found," citing State v. Esteves,
93 N.J. 498, 508
(1983). It argues that based upon the officers' training and
experience, and the odor of raw marijuana that persisted after the
burnt "roach" was removed, they had probable cause to search the
backpack, the void above the rear wheel well and the space behind
the air vents for other contraband.
5 A-0023-17T3
Defendant disagrees. He argues that the officers' search of
the backpack and the vehicle's "voids" exceeded the permissible
scope of a warrantless search under the automobile exception.
In Witt, supra,
223 N.J. at 450, the Court returned to the
formulation of the automobile exception it first adopted in State
v. Alston,
88 N.J. 211 (1981), namely, "searches [of automobiles]
on the roadway based on probable cause arising from unforeseeable
and spontaneous circumstances are permissible." If the search is
justified under these circumstances, police need not secure a
warrant beforehand "merely because 'the particular occupants of
the vehicle may have been removed from the car, arrested, or
otherwise restricted in their freedom of movement.'" Id. at 428
(quoting Alston, supra,
88 N.J. at 234). Therefore, we agree with
the State that the judge erred in considering the search as one
incident to a lawful arrest.
As we see it, the question is whether the search exceeded the
permissible scope pursuant to the automobile exception. We
acknowledge that the Witt Court did not specifically address the
issue, and the law seems somewhat unsettled.
Clearly, once probable cause is established, police may
search the passenger compartment of the vehicle. In Witt, supra,
223 N.J. at 416, after arresting the defendant for driving while
intoxicated, police searched for intoxicants and found a gun in
6 A-0023-17T3
the center console of the car. In Alston, supra,
88 N.J. at 216-
17, after seeing shotgun shells in the glove compartment when the
defendant opened it to retrieve his credentials, police returned
to the car, seized the shells, and three other weapons — a sawed-
off shotgun in a bag under the passenger's seat, a revolver in a
holster under the front seat, and a revolver secreted in the
backseat. The Court concluded that under the circumstances
presented, the detectives had "probable cause to search the
passenger compartment." Id. at 232.
The law seems relatively settled regarding closed containers
found in the passenger compartment. See Kevin G. Byrnes, N.J.
Arrest, Search & Seizure § 17:2-3 at 457 (2017-18) ("Seizure of
luggage and other sealed containers from an automobile subject to
a warrantless search under the automobile exception is normally
allowed."). One case the State relies on for support is Esteves.
There, police were dispatched to investigate the possible robbery
of a store and, after confirming none had occurred, observed a
handgun between the front seats of a car parked nearby.
93 N.J.
at 501. Attempting to find the owner of the car, police questioned
the defendant and his compatriot as they left the store. Ibid.
Defendant's compatriot having admitted ownership of the car, the
defendant offered to obtain his identification from the vehicle
and his compatriot/owner gave one officer the keys. Ibid. Police
7 A-0023-17T3
opened the door and seized the gun, which was a starter's pistol,
and began to search the car for identification. Id. at 502. They
found drugs in a film canister in the compatriot's shaving kit,
and more drugs in the defendant's knapsack. Ibid.
Applying the automobile exception, id. at 505, the Court
concluded police had probable cause to search for weapons "given
that they were investigating a weapons offense, and had already
discovered what appeared to be a weapon." Id. at 506.
Additionally, the Court considered a "second factor," namely
"[l]egitimate precaution [that] justifies routine police
procedures not designed as pretexts to discover evidence." Ibid.
The Court explained:
We are satisfied that probable cause existed
for the officers to search the car and to take
reasonable precautions for their own safety.
They had been advised of a possible robbery
and had seen what appeared to be a pistol in
the car. When, in addition, neither
[defendant] could produce satisfactory
identification, the police had a sufficient
basis to search the automobile for weapons or
to obtain identification. Nor was the extent
of the search unreasonable. The scope of a
warrantless search of an automobile is defined
by the object of the search and the places
where there is probable cause to believe that
it may be found. Under these circumstances,
the police had probable cause and therefore a
right to search as they did. They found no
other weapons or satisfactory identification
in the front or in the glove compartment. The
shaving kit could reasonably have contained
either weapons, shells or I.D., and so the
8 A-0023-17T3
police had the right to check it. In doing
that they came upon the pills in the foil
packet in the film container and two other
pills in the bottom of the kit.
[Id. at 507-08 (citations omitted) (emphasis
added).]
Regarding the knapsack, the Court cited United States v. Ross,
456 U.S. 798, 824,
102 S. Ct. 2157, 2172,
72 L. Ed. 2d 572, 593
(1982)), decided after the search in the case, and explained in a
footnote "that once probable cause exists to search the interior
of a motor vehicle, the police may search every part of the
vehicle, including containers, in which there is probable cause
to believe that the object of the search may be found." Esteves,
supra,
93 N.J. at 508 n.3.
Despite this clear statement, we used a different rationale
to justify a warrantless search of the defendant's gym bag in
State v. Judge,
275 N.J. Super. 194 (App. Div. 1994). There, we
concluded that police had probable cause to search the defendant's
automobile based upon the smell of burnt marijuana. Id. at 202.
However, Judge, later Justice, Coleman writing for the panel found
a different basis upon which to permit the search of the contents
of a gym bag found on the rear seat, namely, that it was a search
incident to a lawful arrest. Id. at 205.
The State argues that in this case, the extensive search was
permissible because the troopers possessed sufficient probable
9 A-0023-17T3
cause to search behind the wheel well panels and air vents. It
relies upon State v. Guerra,
93 N.J. 146 (1983). There, police
observed a motor vehicle violation, stopped the car and detected
a strong odor of raw marijuana. Id. at 149. After the driver and
passenger refused to consent to a search, police took them and the
car to the police station. Ibid. Police applied for and obtained
a telephonic search warrant, and found nearly two hundred pounds
of marijuana in the trunk. Id. at 149-50.
The Court affirmed the search even though the telephonic
warrant was deficient. Id. at 152. It concluded that the police
had probable cause to search the trunk because the strong smell
of marijuana was not emanating from the passenger compartment or
a small suitcase in the car's interior. Id. at 150.
Guerra stands in contrast to State v. Patino,
83 N.J. 1
(1980). There, the police officer stopped a car and saw a small
amount of marijuana on the floor next to the front seat. Id. at
5. A search of the passenger area revealed no other incriminating
evidence. Id. at 6. After ordering the defendant to open the
trunk, the officer found cocaine inside a shopping bag. Ibid.
Rejecting the State's argument that the search of the trunk
was justified under the automobile exception, the Court said: "A
police officer must not only have probable cause to believe that
the vehicle is carrying contraband but the search must be
10 A-0023-17T3
reasonable in scope. It is widely recognized that a search,
although validly initiated, may become unreasonable because of its
intolerable intensity and scope." Id. at 10-11 (citations omitted)
(emphasis added). The Court held:
The State must produce facts which lead a
trooper to conclude that the search of the
entire vehicle was based upon probable cause.
In this regard, the State failed to satisfy
its burden. The presence of a small amount of
marijuana, consistent with personal use, does
not provide a trooper with probable cause to
believe that larger amounts of marijuana or
other contraband are being transported.
[Id. at 13.]
The Patino Court cited approvingly to our decision in State
v. Murray,
151 N.J. Super. 300 (App. Div.), certif. denied,
75 N.J. 541 (1977). Id. at 11. In Murray, police observed a "roach
clip" and vials of hashish after stopping the defendants' van.
Id. at 303-04. A search of the cab area produced no other evidence,
but police removed the driver's seat to access the area under a
sink behind the cab. Id. at 305. They found an attaché case
under the sink, used a knife to force its lock and found a large
amount of hashish. Ibid.
We concluded the officer's search of the passenger portion
and the rear of the van was justified. Id. at 306. We held,
however, "that when the officer, unsuccessful to that point in
uncovering additional contraband, commenced interfering with the
11 A-0023-17T3
structural integrity of the vehicle itself, the search he was
conducting transcended all bounds of reasonableness." Id. at 307
(emphasis added).
The principles we distill from this rather unsettled
landscape lead to the following conclusions. Pursuant to the
automobile exception, the troopers in this case had authority to
conduct a search of the passenger compartment of the vehicle based
upon probable cause. Witt, supra,
223 N.J. at 450.2 Having found
the partially smoked marijuana cigarette, as well as the baby
bottles filled with suspected CDS in the passenger compartment,
they had probable cause to search the contents of the backpack.
Esteves, supra,
93 N.J. at 508 n.3.
However, the search could go no further unless specific
probable cause supported a reasonable belief that more drugs would
be found in the specific places searched. Id. at 508. In Guerra,
supra,
93 N.J. at 150, the Court concluded police had specific
probable cause to believe that the trunk contained the source of
the marijuana odor the trooper continued to smell. In Patino,
supra,
83 N.J. at 13 (emphasis added), the Court concluded the
2
Because the issue was not raised, we specifically do not address
whether the fact that defendant's car was lawfully parked in the
lot of a residential complex, and was not stopped on the open
roadway, affects application of the automobile exception.
12 A-0023-17T3
State failed to demonstrate "the search of the entire vehicle was
based upon probable cause."
Critical to the State's argument is the conclusion that the
smell of raw marijuana, as distinguished from burnt marijuana,
coupled with the troopers' training and experience, justified the
parking lot search of every nook and cranny where marijuana might
be secreted in defendant's car. However, the only witness who
testified about the smell of raw marijuana was Palach; Peters only
stated that he smelled burnt marijuana on approaching the vehicle.
In finding the recovery of the "burnt marijuana 'blunt'" was "valid
pursuant to a search incident to arrest," the judge noted Palach
"smelled raw marijuana." However, she did not specifically accept
that as a fact and expressly found Palach's testimony was "less
credible."
In any event, we conclude Witt cannot be read so broadly as
to authorize the balance of the search in this case. In Witt,
supra,
223 N.J. at 431-32, the Court recognized there was "a
limited exigency to the warrant requirement" under the Alston
standard, premised on "unforeseeability and spontaneity," the
inherent mobility of the vehicle and the unanticipated
circumstances that led to probable cause. The Court recognized
that the automobile exception applied only to "on-scene
warrantless searches," not based upon "fake exigencies," and that
13 A-0023-17T3
officers who towed and impounded the car needed to secure a warrant
before conducting a further search of the vehicle when practicable
to do so. Id. at 449.3
The State's argument would essentially ignore this cautionary
language and adopt the federal standard that "probable cause to
search a vehicle 'alone satisfies the automobile exception to the
Fourth Amendment's warrant requirement.'" Id. at 422 (quoting
Maryland v. Dyson,
527 U.S. 465, 467,
119 S. Ct. 2013, 2014,
144 L. Ed. 2d 442, 445 (1999)). The Witt Court rejected such an
approach.
In short, we conclude that the automobile exception did not
authorize the troopers to remove the wheel well panels and air
vents — to engage upon a search that "transcended all bounds of
reasonableness," Murray, supra,
151 N.J. Super. at 307. None of
3
We do not specifically conclude that police may not conduct a
search of the car on the scene simply because there exist grounds
to impound the vehicle. As one commentator noted,
It is unclear whether the inevitability of
vehicle impoundment under the circumstances
requires that police forego an on-scene
search. If the vehicle will be impounded and
there is no immediate need to search the
vehicle, should the police expose themselves,
the motorist and the general public to the
dangers and inconveniences inherent in
conducting a search on a roadway?
[Byrnes, supra, § 17:2-1 at 449.]
14 A-0023-17T3
the cases cited by the State authorizes such conduct. We reverse
that portion of the order that suppressed the evidence seized from
the backpack found on the rear seat of defendant's car; we
otherwise affirm the order.
Affirmed in part; reversed in part. The matter is remanded
to the Law Division for further proceedings consistent with this
opinion.
15 A-0023-17T3
Sunday, February 25, 2018
Odor of pot does not permit police to search trunk STATE OF NEW JERSEY, Plaintiff-Appellant, v. MAURICE HOUSTON,
PCR granted where defendant claimed defense at guilty plea State v Belton
PCR granted where defendant claimed defense at guilty plea
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. December 26, 2017
APPELLATE DIVISION
ANWAR H. BELTON, a/k/a HASON
BELTON, a/k/a HASON LYON,
a/k/a ANWAR BELTON, a/k/a
ANWAR BELTRON,
Defendant-Appellant.
___________________________________
Submitted November 13, 2017 – Decided December 26, 2017
Before Judges Sabatino, Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment
No. 10-09-2272.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0971-16T1
Joseph E. Krakora, Public Defender, attorney
for appellant (Karen A. Lodeserto, Designated
Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (John J. Santoliquido,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Defendant Anwar H. Belton appeals from a September 14, 2016
order denying, without an evidentiary hearing, his petition for
post-conviction relief (PCR). Defendant collaterally challenges
his conviction, after a plea, of first-degree aggravated
manslaughter.
We reverse. We conclude that defendant, in the course of
his plea allocution, suggested a defense of others that was
inconsistent with guilt; his waiver of that defense was not
knowingly made; therefore, he did not present a sufficient
factual basis of guilt. In reaching this conclusion, we apply
the principles set forth in State v. Urbina,
(2015), although that case involved a claim of self-defense,
rather than the defense of others, suggested in the course of a
guilty plea. In view of defendant's contemporaneous claim of
innocence, the failure to elicit a sufficient factual basis was
of constitutional dimension and warrants PCR. See State v.
D.D.M.,
140 N.J. 83, 95 (1995); State v. Mitchell,
577-78 (1992).
I.
Defendant was indicted and charged, along with a woman
named Erika Pugh, also known as "Sparkles," with murder, theft
from the victim, and endangering an injured victim. Pugh was
also charged with prostitution. Defendant was offered an
agreement to plead to an amended charge of first-degree
aggravated manslaughter, in return for a recommended twelve-year
2 A-0971-16T1
prison term subject to the No Early Release Act,
7.2, and dismissal of the remaining charges.
In his allocution, defendant contended that he was roused
from his sleep in an Atlantic City motel by frantic requests for
help by Pugh and another woman. Both women were involved in an
altercation with a man. When the man began biting down on
Pugh's hand, refusing to let go, defendant said he put the man
in a headlock to get him to release Pugh's hand. The man
relented only after he began "snoring." The man died soon
thereafter.
In the plea colloquy, defense counsel first established
that Pugh woke defendant, who admitted he had only met Pugh that
night. We quote the colloquy at length:
[DEFENSE COUNSEL:] Okay. So she [Pugh]
came knocking on your door sometime in the
middle of the night, correct?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] And Miss Pugh was
actually not dressed at the time that she
came knocking on your door.
[DEFENDANT:] Yes, Your Honor. I mean –
[DEFENSE COUNSEL:] That's okay. . . . And
she indicated to you something about
somebody took my money, come help me,
somebody took my money; is that correct?
[DEFENDANT:] No, she didn't say that yet.
She just came screaming help.
3 A-0971-16T1
[DEFENSE COUNSEL:] Help, okay. So you went
outside and tell the judge primarily in your
own words what happened after you went
outside, and if there's some questions that
I'll have to ask you, I'll ask you.
[DEFENDANT:] When I came to the door and I
seen Miss Pugh, she was in the nude and she
was screaming help, help, help! And I came
to the door, first I was looking at her,
then I looked down the hallway because there
was some more noise coming, well not the
hallway but down the corridor of the top
floor. And I seen the girl, the young lady
that I did come down with, Candy, and the
victim. And he was like, he was a little,
he had his shirt off, he was a little
hysterical.
So I just went over there and told him
to calm down and be quiet, to go back in and
find out what was going on. And when we got
on the inside, she's saying he took her
money. He's saying they robbed him. Then
he got real agitated and I told him relax, I
didn't come for that. Then Sparkle[s] is
screaming, beat him up, get my money. And I
says to her shut up, because I didn't even
know her.
And in the process of that Candy says,
is there some more money around here? And
she wants to touch the guy, and when she
touches the guy, he gets real belligerent
and starts assaulting her. And I tried to
stop it and me and him got into an
altercation.1
1
The record before us does not include reports of the police or
medical examiner, or statements of the victim's wife. However,
we surmise, from references to these documents, that there was
evidence that the victim had visited a casino hotel with his
wife; he had consumed cocaine and alcohol; and after his wife
went to their room, the victim departed in the company of two
women and went to the motel where he ultimately died.
4 A-0971-16T1
Defendant then described his effort to defend Pugh, as the
victim bit her hand:
[DEFENDANT:] [cont'd] And in between that
altercation Sparkles got in, intervened, and
he starts biting Sparkles, and when he's
biting Sparkles, I'm trying to get him off
of Sparkles, he's biting and she's screaming
and doing whatever she can to get him off of
her. And by the time I get ready to let go
was when I heard like, I heard him snoring.
[DEFENSE COUNSEL:] Okay. Now prior to you,
when you say let go, you actually had your
arm, or your had his head in a headlock,
correct?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] Okay. And during that
time period when you had [the victim's] head
in a headlock, you held him for a period of
time until he let her go.
[DEFENDANT:] Let go of her hand.
[DEFENSE COUNSEL:] Okay.
[DEFENDANT:] I let go of him when he let go
of her hand.
Defense counsel then attempted to elicit defendant's
admission that he acted with indifference to human life.
Defendant insisted that he was "trying to stop [the victim] from
hurting" Pugh.
[DEFENSE COUNSEL:] . . . What I'm asking
you is, when the gentleman was down on the
ground and he wasn't responding, you,
Sparkle[s] and Candy left the room.
[DEFENDANT:] Yes.
5 A-0971-16T1
[DEFENSE COUNSEL:] Okay. And would you
agree that by leaving the room and not
offering him any aid, that you actually,
that action alone showed indifference to his
life.
[DEFENDANT:] No, I don't believe in that,
to be honest.
[DEFENSE COUNSEL:] You don't. Well then
we're not going to have a plea.
[DEFENDANT:] Well I did everything I can
do, but I'm not going to say I showed
indifference, because I was trying to stop
him from hurting her.
[DEFENSE COUNSEL:] I understand that.
That's not the question. The question is
after the fact when he was down on the
ground you didn't offer him any medical aid.
[DEFENDANT:] No. I said I left him there.
[DEFENSE COUNSEL:] Okay. What I'm saying
to you is the fact of you leaving him there
and not assisting him is extreme
indifference because you didn't assist him
when you knew he needed assistance.
[DEFENDANT:] Yeah, but the ambulance was
there.
The prosecutor elicited that defendant disregarded the risk
that he might cause the victim's death:
[PROSECUTOR:] . . . [Y]ou agree what you
were doing was affecting his ability to
breathe?
[DEFENDANT:] I might have contribute [sic].
[PROSECUTOR:] Okay. And you agree based on
your actions and everything that occurred
6 A-0971-16T1
there was a conscious disregard of the
probability of death of . . . the victim?
[DEFENDANT:] No, I wouldn't say that
because then I would thought that he would
die at that moment.
THE COURT: Well the question was
probability, not a certainty.
THE DEFENDANT: Oh, probability? Oh yes,
well I can't, yeah, okay.
[PROSECUTOR:] And you disregarded that risk
when you were doing what happened, what you
described, right?
[DEFENDANT:] Yes.
As the judge began to say he was satisfied with the
allocution, the prosecutor interrupted to express his concern
that defendant may have expressed a defense of others:
[PROSECUTOR:] Judge, maybe the court – I
mean from what he is saying there's the
possibility that there's a defense of
others. As long as he understands he's
waiving that possible defense in order to
take the benefits of this plea agreement.
So I don't know if the court can maybe
inquire about that.
The judge then asked defense counsel if she had talked to
her client about that defense. She admitted she had not. The
judge conducted an off-the-record conference at the bench.
After a break of unknown duration, the court went back on the
record, whereupon defendant purported to waive the defense.
[DEFENSE COUNSEL:] Judge, I did discuss
with Mr. Belton any defenses that could have
7 A-0971-16T1
been brought up as a result of what his
colloquy is today and we are after
discussing it giving up any rights to any
defenses that may have been presented in
exchange for the plea agreement.
THE COURT: All right. That's correct, Mr.
Belton?
THE DEFENDANT: Yes, Your Honor.
The judge found that defendant's plea was freely and
voluntarily entered and satisfied the elements of aggravated
manslaughter. Notably, at the subsequent sentencing hearing,
defendant stated he was reluctant to enter the plea agreement,
and reiterated that he acted in Pugh's defense. The court
sentenced defendant in accord with the plea agreement. On
direct appeal, we affirmed the sentence on an Excessive Sentence
Oral Argument calendar, but remanded for a correction of jail
credits. State v. Belton, No. A-0389-14 (App. Div. May 6, 2015).
II.
Defendant thereafter filed a "motion for post-conviction
relief" and a motion to withdraw his plea, pursuant to Rule
3:21-1. He contended:
POINT I
THE TRIAL COURT ERRED WHEN IT SENTENCED
DEFENDANT TO A TERM GREATER THAN THE CO-
DEFENDANT WHEN THE CO-DEFENDANT CONTRIBUTED
TO VICTIM[']S DEATH FAR MORE THAN DEFENDANT
IN VIOLATION OF THE EQUAL PROTECTIONS UNDER
STATE AND FEDERAL CONSTITUTIONS.
8 A-0971-16T1
POINT II
COUNSEL WAS INEFFECTIVE FOR WITHHOLDING THE
DEFENSE OF OTHERS AND NOT DISCUSSING THIS
DEFENSE IN DETAIL TO DEFENDANT IN VIOLATION
OF NEW JERSEY CONST. ART. I PAR. X.
POINT III
THE DEFENDANT[']S PLEA OF GUILT DOES NOT
SUPPORT A FIRST DEGREE AGGRAVATED
MANSLAUGHTER CONVICTION.
In a counseled brief, defendant contended:
POINT I
BECAUSE TRIAL AND [sic] PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL, AND BECAUSE THE
PETITIONER WAS PREJUDICED THEREBY, THE COURT
SHOULD GRANT PETITIONER'S MOTION FOR POST-
CONVICTION RELIEF. IN THE ALTERNATIVE,
BECAUSE THE PETITIONER HAS PRESENTED AT
LEAST PRIMA FACIE PROOF THAT HE HAD BEEN
DEPRIVED OF THE EFFECTIVE ASSISTANCE OF
COUNSEL, THE COURT SHOULD GRANT HIM AN
EVIDENTIARY HEARING ON THIS ISSUE.
A. TRIAL COUNSEL FAILED TO PROPERLY
INVESTIGATE THE MERITS OF THE STATE'S CASE
AGAINST PETITIONER AND EFFECTIVELY ADVISE
PETITIONER OF HIS LEGAL DEFENSES.
POINT II
THE SENTENCE IS EXCESSIVE.
POINT III
CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO
INEFFECTIVE ASSISTANCE OF COUNSEL AND DENIED
PETITIONER A FAIR TRIAL.
In a supporting certification, defendant contended that had his
attorney explored the defense of others in advance of the plea
9 A-0971-16T1
hearing, she could have negotiated a more favorable plea
agreement.
During oral argument on the petition, PCR counsel invoked
Urbina for the first time, suggesting that defendant did not
sufficiently understand the defense of others, just as Urbina
did not sufficiently understand and knowingly waive self-
defense. The prosecutor contended Urbina did not apply because
it pertained to a claim of self-defense, not defense of others.
The court agreed.
The PCR court denied relief after applying the two-pronged
Strickland test and determining plea counsel was not
constitutionally deficient, and defendant did not suffer
resulting prejudice. See Strickland v. Washington,
668, 687 (1984); State v. Fritz,
105 N.J. 42, 58 (1987). The
court accepted defendant's version of the facts, at least for
purposes of considering the petition. In particular, the court
recited:
Candy and the victim . . . began fighting,
so petitioner and Pugh attempted to
intervene. The victim then bit Pugh's hand
and would not release it. Petitioner then
grabbed the victim in a headlock and
released him only after the victim released
Pugh's hand. The victim had lost
consciousness as a result to the headlock
and petitioner, Candy, and Pugh then left
the area. . . . The victim was pronounced
dead at the scene.
10 A-0971-16T1
However, the court held that defendant did not have a
meritorious defense of others defense, and it was not
ineffective to fail to pursue a meritless defense. The court
reviewed the elements of the defense of others, drawing from the
elements of self-defense. The court noted that "deadly force is
authorized only when an individual is at risk of serious bodily
harm," which is harm that "creates a substantial risk of death
or which causes serious permanent disfigurement or protracted
loss or impairment of the function of any bodily member or
organ," citing
N.J.S.A. 2C:3-11(d). The court concluded:
It cannot be seriously argued that biting
someone's hand would or could cause serious
permanent disfiguration or protracted loss
or impairment of the function of any bodily
member or organ. As such, to argue this
defense would be a frivolous pursuit.
Counsel is not required to pursue frivolous
arguments in order to be effective.
The court denied PCR without addressing defendant's pro se
motion to withdraw his plea, or his contention that he failed to
present a sufficient factual basis.
III.
This appeal followed. In his initial merits brief,
defendant contends:
DEFENDANT SHOULD BE ENTITLED TO AN
EVIDENTIARY HEARING BECAUSE HIS PLEA
ATTORNEY WAS INEFFECTIVE IN FAILING TO ARGUE
THAT DEFENDANT WAS DEFENDING OTHERS.
11 A-0971-16T1
After the parties' initial briefing, we requested
supplemental briefs to comment on whether Urbina, which
addressed a suggested claim of self-defense in the course of a
guilty plea, should apply to a defense of others defense;
whether defendant's waiver satisfied Urbina's standard for
waiver; and, if the waiver was inadequate, whether the plea
should be set aside because defendant made a contemporaneous
claim of innocence. Defendant responded affirmatively,
contending:
DEFENDANT DID ASSERT A DEFENSE OF OTHERS
DEFENSE AND THE SUPREME COURT'S DECISION IN
STATE V. URBINA,
221 N.J. 509 (2015) IS
APPLICABLE.
The State, on the other hand, contended that defendant did not
articulate a defense of others, and, therefore, Urbina did not
apply.
IV.
We review the trial court's denial of PCR de novo. State
v. Harris,
181 N.J. 391, 421 (2004) (stating appellate court
conducts de novo review when PCR court does not hold an
evidentiary hearing). We also review de novo a decision whether
a defendant has provided an adequate factual basis for a guilty
plea. State v. Tate,
220 N.J. 393, 403-04 (2015).
Our decision is largely guided by Urbina. In that case,
the defendant — a juvenile waived up to adult court — attempted
12 A-0971-16T1
to plead guilty to aggravated manslaughter. But, in the course
of his allocution, he asserted that he reached for his firearm
only after the victim began to reach for his own. Urbina "just
wanted to have [the victim] back up," but his automatic weapon
"just went off." Urbina,
221 N.J. at 516. Defense counsel then
stated that he had discussed a potential self-defense claim with
his client, and advised him that it was not "particularly
viable." Id. at 517. In response to the prosecutor's request,
defendant's plea form was amended to state that he was waiving
self-defense. Ibid. Without reviewing the nature of a self-
defense claim, or the State's burden to disprove self-defense,
the court then asked Urbina, "And you do know . . . by pleading
today, you've waived any potential utilization of self-defense,
correct?" Ibid. Defendant answered yes, and the court accepted
the plea as providing an adequate factual basis. Id. at 517-18.
Our court affirmed the conviction on direct appeal by a divided
panel, State v. Urbina, No. A-1761-11 (App. Div. July 19, 2003),
and the Supreme Court reversed. Urbina,
The Urbina Court reviewed New Jersey's adherence to the
principle that a defendant must provide a comprehensive factual
basis for a plea, addressing each element of the offense. Id.
at 526-27. "[I]n New Jersey, '[e]ven if a defendant wished to
plead guilty to a crime he or she did not commit, he or she may
13 A-0971-16T1
not do so.'" Id. at 527 (quoting State v. Smullen,
408, 415 (1990)). A factual basis may be challenged by a
petition for post-conviction relief, as well as by a motion to
withdraw a plea,2 or by direct appeal. Id. at 528.
The Court also reviewed principles of self-defense, noting
that it exonerates a defendant; a defendant must have an actual,
honest, and reasonable belief — but not necessarily an accurate
belief — in the need to use reasonable force to protect oneself
against unlawful force; and the State bears the burden to
disprove self-defense once it has been raised. Id. at 525-26.
The Court held that a court is obliged to inquire of a
defendant who suggests he acted in self-defense. Id. at 528.
[I]f a suggestion of self-defense is raised
in the plea colloquy, then the trial court
must inquire whether the defendant is
factually asserting self-defense. If the
defendant states that he is not claiming
self-defense, then the plea can be accepted.
On the other hand, if the defendant claims
that he used deadly force against the victim
in the reasonable belief that his life was
in danger, then the defendant is asserting
that he did not commit the crime.
2
However, the Supreme Court stated in Tate,
that a challenge to the sufficiency of a factual basis does not
implicate the four-part standard under State v. Slater,
198 N.J. 145 (2009). The defendant appealed from the denial of his
motion to withdraw his plea on the grounds of an inadequate
factual basis. The Court stated, "In short, if a factual basis
has not been given to support a guilty plea, the analysis ends
and the plea must be vacated." Tate,
14 A-0971-16T1
[Ibid.]
Only if the defendant abandons his factual claim of self-
defense, may the defendant then waive the defense. Ibid.
However, the waiver must be secured after "'a thorough and
searching inquiry' into 'his or her understanding of the nature
of the right being waived and the implications that flow from
that choice.'" Ibid. (quoting State v. Handy,
215 N.J. 334, 362
(2013)). In particular, "the plea judge and defense counsel
should ensure that the defendant has an understanding of self-
defense in relation to the facts of his case, and should inform
the defendant that the State has the burden to disprove the
defense if asserted." Id. at 529.
Consistent with those principles, the Court held that
Urbina's allocution was inadequate because the trial court
failed to inquire further after Urbina's suggestion of self-
defense. Ibid. Furthermore, the Court was "not satisfied that
[the] defendant's waiver of self-defense" sufficed. Ibid.
[T]he plea judge did not ensure that [the]
defendant truly understood the law of self-
defense, including the requirement of a
reasonable and honest belief in the
necessity of using force, or that he
understood that the State had the burden to
disprove self-defense once asserted. Absent
such inquiry on the record, it is unclear
whether defendant's plea was truly knowing,
intelligent and voluntary.
[Ibid. (citations omitted).]
15 A-0971-16T1
The Court concluded that the factual basis was insufficient, and
vacated the plea. Id. at 530.
We discern no reason why the principles set forth in Urbina
would not apply with equal force to a suggested claim of a
defense of others. Like self-defense, it is an affirmative
defense that exonerates a defendant; it depends on an honest,
actual, and reasonable – but not necessarily accurate – belief
that force is necessary; and, once raised, imposes on the State
the burden to disprove it.
N.J.S.A. 2C:3-5. We recognize that
the defense includes additional elements. A defendant must
establish: he would be justified in using such force to protect
himself against the injury threatened to the other person,
N.J.S.A. 2C:3-5(a)(1); he reasonably believed the protected
person would be justified in using such protective force,
N.J.S.A. 2C:3-5(a)(2); and he reasonably believed his
intervention was necessary to protect the other person,
2C:3-5(a)(3). Also, a person may resort to the use of deadly
force — in self-defense or defense of others — only if the
person reasonably believes it necessary to protect against
"death or serious bodily harm."
Applying Urbina, we are persuaded that defendant suggested
a defense of others. He contended he was asked to come to the
aid of two women. In particular, defendant said he applied
16 A-0971-16T1
force to the victim's neck to get him to stop biting Pugh's
hand. Thus, he suggested he did so to protect against "serious
bodily harm" – that is, "bodily harm which creates a substantial
risk of death or which causes serious, permanent disfigurement
or protracted loss or impairment of the function of any bodily
member or organ . . . ."
The trial court minimized the threat of harm the victim
posed to Pugh. We disagree. Serious bodily harm could
certainly result from the victim biting Pugh's hand so firmly
that Pugh could not extricate it; and so stubbornly that the
victim would not relent despite defendant's placement of a
headlock. The jaw is a powerful instrument. See The
Craniomandibular Mechanics of Being Human, Proceedings of the
Royal Society of Biol. Sciences 3579 (2010). It can sever
another's digits. See State v. Strickland,
91 So.3d 411, 416
(La. Ct. App. 2012) (holding it was not error for the jury to
find defendant guilty of second-degree battery involving
"serious bodily injury" under La. Stat. Ann. 14:34-13 for biting
off the tip of victim's finger). Defendant was not obliged to
demonstrate that such harm actually occurred. It would suffice
3 La. Stat. Ann. 14:34-1 defines "serious bodily injury" as
"bodily injury which involves unconsciousness, extreme physical
pain or protracted and obvious disfigurement, or protracted loss
or impairment of the function of a bodily member, organ, or
mental faculty, or a substantial risk of death."
17 A-0971-16T1
if he reasonably believed applying deadly force was necessary to
protect against such serious bodily harm. N.J.S.A. 2C:3-
4(b)(2).4
As defendant suggested a defense of defense of others, the
trial court was obliged to inquire as to the facts underlying
the claimed defense. As in Urbina, the court did not do so.
Also, as in Urbina, the court elicited a waiver of the defense
without informing defendant that: the defense of others was a
complete defense; the fact that only a reasonable and honest
belief, not an accurate belief, in the use of the force was
required; and the State would bear the burden to disprove the
defense beyond a reasonable doubt. Thus, as in Urbina,
defendant did not knowingly and intelligently waive the defense.
Therefore, he did not present a sufficient factual basis for his
plea.
We recognize that an inadequate factual basis does not
necessarily entitle a defendant to relief upon a collateral
attack of a conviction. "As long as a guilty plea is knowing
4
In recognizing defendant's suggestion of a defense of others,
we do not intend to indicate any view as to the potential
success of such a defense. We note, for example, that defendant
may not avail himself of the defense if he did not reasonably
believe that the amount of force he used was needed to repel the
attack, see State v. Bryant,
288 N.J. Super. 27, 36-37 (1996);
or if defendant "with the purpose of causing death or serious
bodily harm, provoked the use of force against himself in the
same encounter."
18 A-0971-16T1
and voluntary . . . a court's failure to elicit a factual basis
for the plea is not necessarily of constitutional dimension and
thus does not render illegal a sentence imposed without such
basis." See Mitchell,
However, a contemporaneous claim of innocence alters the
legal significance of the lack of factual basis. "A factual
basis is constitutionally required . . . when there are indicia,
such as a contemporaneous claim of innocence, that the defendant
does not understand enough about the nature of the law as it
applies to the facts of the case to make a truly 'voluntary'
decision on his own." Id. at 577 (citing McCarthy v. United
States,
394 U.S. 459, 467 (1969)); see also State v. Barboza,
115 N.J. 415, 421 n. 1 (1989) ("A factual basis is not
constitutionally required unless the defendant accompanies the
plea with a claim of innocence.").
Defendant's suggested defense of others constituted a
contemporaneous claim of innocence that negated his guilt. See
State v. Munroe,
210 N.J. 429, 445 (2012) (holding that the
defendant presented "a colorable claim of innocence" in her
assertion of self-defense). Inasmuch as the trial court failed
5
Moreover, the defendant in Mitchell challenged the factual
basis of his plea in a PCR petition over six-and-a-half years
after entry of the judgement, leading the Court to find the
petition "was both time-barred and procedurally barred." Tate,
220 N.J. at 407 (citing Mitchell,
19 A-0971-16T1
to explore defendant's claimed defense, and failed to secure a
knowing and intelligent waiver after an appropriate explication
of applicable law, it cannot be said his plea was voluntary and
knowing, and violated due process. See Barboza,
n.1 ("A guilty plea violates due process and is, thus,
constitutionally defective if it is not voluntary and
knowing.").
Therefore, without the necessity of reaching defendant's
remaining arguments, we reverse the denial of PCR. Defendant's
plea and conviction shall be vacated. His prior pre-conviction
bail status shall be restored, pending trial court review within
thirty days. The matter is remanded for trial.
Reversed and remanded. We do not retain jurisdiction.
20 A-0971-16T1
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