                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL 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-1372-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MOHAMED K. ELSAYED,

     Defendant-Appellant.
______________________________

                    Submitted January 8, 2019 – Decided January 31, 2019

                    Before Judge Fisher and Hoffman.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 15-02-0129.

                    Sethi and Mazaheri, LLC, attorneys for appellant (Reza
                    Mazaheri, on the brief).

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Christopher W. Hsieh, Chief
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      While awaiting sentencing, defendant filed a motion to withdraw his

guilty plea, after he learned of reports of misconduct involving an important

witness for the State. In this appeal, defendant challenges the denial of his

motion.    Because we conclude the trial judge mistakenly exercised his

discretion, we reverse the order denying defendant's motion to withdraw his

guilty plea and remand for further proceedings.

                                        I

      On February 26, 2015, a grand jury indicted defendant, charging him with

1) fourth-degree possession of a controlled dangerous substance (CDS),

(marijuana), N. J. S.A. 2C:35-10(a)(3); 2) third-degree possession of CDS with

the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11); 3) third-

degree possession of CDS with intent to distribute within 1000 feet of school

property, N.J.S.A. 2C:35-7; 4) third-degree possession of CDS (MDMA),1

N.J.S.A. 2C:35-10(a)(1); and 5) second-degree possession of CDS (MDMA),

with intent to distribute, N.J.S.A. 2C:35-5(a)(1).

      The charges arose from a traffic stop, where defendant was the driver of

the vehicle stopped, and his co-defendant was a passenger.      According to



1
  MDMA, or methylenedioxymethamphetamine, is a CDS commonly known by
the street names Ecstasy or Molly.
                                                                      A-1372-16T2
                                        2
defendant, following the stop, "I insisted to the officer that they would find

nothing in the car and invited him to search it." In the consent search that

followed, police discovered CDS inside a hidden compartment in the vehicle.

       On February 26, 2016, defendant pleaded guilty to fourth-degree

possession of a CDS (marijuana) and third-degree possession of CDS (MDMA),

pursuant to a plea agreement;2 under the agreement, the State agreed to

recommend dismissal of the remaining charges — the three distribution counts.

According to defendant, in advance of his plea hearing, his attorney reviewed

all discovery with him and discussed potential defenses:

                   One piece of evidence that was provided to my
             attorney at that time was the lab report[3] that was
             prepared and certified by Kamalkant Shah. At the time,
             my attorney and I believed the content of the report to
             be true and accurate and difficult to challenge.

                   Some time after my guilty plea, it was discovered
             that Mr. Shah had been removed from his position and
             disciplined for falsifying lab results in CDS related
             cases.[4]


2
   The plea agreement was contingent upon both defendant and co-defendant
pleading guilty.
3
    The report reviewed was dated September 24, 2014.
4
   Shah was a forensic scientist in the State Police crime lab. According to the
trial judge, Shah "had been conducting what is known as 'dry labbing'" where he
"failed to test and subsequently falsified lab results. . . ."
                                                                        A-1372-16T2
                                       3
      On June 28, 2016, the Passaic County Prosecutor's Office provided

defendant's counsel with the results of a second laboratory report, this one dated

June 16, 2016, regarding testing conducted by a different lab analyst. This

second report indicated the items analyzed tested positive for marijuana and

Ecstasy, consistent with the first report; however, upon reviewing the second

report, defendant's counsel discovered discrepancies between the two laboratory

reports regarding the weights of the substances analyzed.

      On August 26, 2016, defendant filed a motion to withdraw his guilty plea.

Defendant's attorney argued that withdrawal of the plea was warranted "based

on newly discovered evidence." In a supporting certification, defendant stated,

                   Although I was not guilty as charged, I decided
            to accept the plea offer because I am not a [U.S.]
            citizen. Based on information at the time, I understood
            that although my conviction would have immigration
            consequences, the risk of deportation would not be as
            great as being convicted of a crime related to the sale
            of CDS. For this reason I did not want to take I did not
            want to risk taking the case to trial;

                   In reality, I was not responsible over the items
            found in the car on the date. I had no knowledge that
            such items were present. I insisted to the officer that
            they would find nothing in the car and invited them to
            search. Any items they found were not in the area I was
            sitting. I told the officers that the discovered items
            were not mine but must have belonged to the passenger.



                                                                          A-1372-16T2
                                        4
      Defense counsel argued that withdrawal of the plea was warranted under

the four-prong analysis established in State v. Slater, 198 N.J. 145, 150 (2009).5

On October 28, 2016, the court denied defendant's motion, and sentenced

defendant to an aggregate three-year prison term, in accordance with defendant's

plea agreement. This appeal followed.

      On appeal, defendant raises the following argument for our consideration:

             THE TRIAL COURT'S DECISION TO DENY
             DEFENDANT'S MOTION TO WITHDRAW HIS
             GUILTY PLEA WAS CLEARLY ERRONEOUS.

                                             II

      A motion to withdraw a guilty plea is committed to the judge's sound

discretion. Id. at 156. That discretion should ordinarily be exercised liberally

where the motion is made before sentencing. Ibid. "In a close case, the 'scales

should usually tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J.

353, 365 (1979)).


5
   Under this analysis, the trial judge must consider and balance four factors:
"(1) whether the defendant has asserted a colorable claim of innocence; (2) the
nature and strength of defendant's reasons for withdrawal; (3) the existence of a
plea bargain; and (4) whether withdrawal would result in unfair prejudice to the
State or unfair advantage to the accused." Id. at 157-58. "No single Slater factor
is dispositive; 'if one is missing, that does not automatically disqualify or dictate
relief.'" State v. McDonald, 211 N.J. 4, 16-17 (2012) (quoting Slater, 198 N.J.
at 162).


                                                                             A-1372-16T2
                                         5
      In an oral decision, the trial judge reviewed the Slater factors. The judge

found that defendant failed to assert a colorable claim of innocence because he

"was driving the vehicle in which the CDS was found."           While the judge

acknowledged "the CDS was found inside a hidden floor compartment in the

vehicle," he concluded defendant "had constructive possession, if not actual

possession of the seized CDS, which negates [his] claim that it solely belonged

to his co-defendant." In addition, the judge minimized the significance of Shah's

misconduct because of the second test results, which confirmed the items seized

tested positive for marijuana and Ecstasy. The judge determined the remaining

Slater factors did not favor defendant's motion to withdraw his plea.

      "Although the ordinary 'abuse of discretion' standard defies precise

definition, it arises when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting

Achacos-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265

(7th Cir. 1985)). We find that to be the case here.

      In reaching the conclusion that defendant failed to assert a colorable claim

of innocence, the trial judge inexplicably failed to consider that defendant

openly invited the police to search the car and that upon discovery of the alleged


                                                                          A-1372-16T2
                                        6
contraband in the car, he immediately insisted that his co-defendant was

responsible for the presence of the contraband. In addition, the judge mistakenly

minimized the significance of Shah's misconduct, and failed to acknowledge the

potential adverse impact for the State's case created by the discrepancy in the

weights of the tested items between the first and second tests.

      We are satisfied that evidence of Shah's misconduct is admissible and

relevant to defendant's guilt or innocence. In this regard,

            Our Supreme Court has held that "a lower standard of
            degree of similarity of offenses may justly be required
            of a defendant using other-crimes evidence defensively
            than is exacted from the State when such evidence is
            used incriminitorily." State v. Garfole, 76 N.J. 445, 452
            (1978). In that respect, the Court emphasized that "an
            accused is entitled to advance in his defense any
            evidence which may rationally tend to refute his guilt
            or buttress his innocence of the charge made." Id. at
            453.     Application of a modified requirement of
            relevancy to the proffer by a defendant "is additionally
            justified by the consideration that the [accused] need
            only engender reasonable doubt of his guilt whereas the
            State must prove guilt beyond a reasonable doubt."
            Ibid.; see also State v. Williams, 214 N.J. Super. 12, 20-
            21 (App. Div. 1986).

            [State v. Dickerson, 268 N.J. Super. 33, 36-37 (App.
            Div. 1993).]

      As we previously noted in State v. Landano, "in an unbroken line of

decisions, our courts have held that the pendency of charges or an investigation


                                                                         A-1372-16T2
                                        7
relating to a prosecution witness is an appropriate topic for cross-examination."

271 N.J. Super. 1, 40 (App. Div. 1994). In fact, our Supreme Court has held,

"Due process requires that the State disclose information it possesses which is

material to the defense, even where it concerns only the credibility of a State's

witness." State v. Spano, 69 N.J. 231, 235 (1976).

      We are satisfied the Law Division judge mistakenly determined that

defendant did not assert a colorable claim of innocence. This error in turn

caused the judge to mistakenly exercise his discretion when he denied

defendant's motion to withdraw his guilty plea. Accordingly, we reverse the

order under review and remand for further proceedings.

      Reversed and remanded. We do not retain jurisdiction.




                                                                         A-1372-16T2
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