                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4032-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARK A. MARTIN, a/k/a
KELVIN GREEN,

     Defendant-Appellant.
___________________________

                    Submitted February 3, 2020 – Decided March 9, 2020

                    Before Judges Messano and Vernoia.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 15-10-
                    0688.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Kevin G. Byrnes, Designated Counsel, on
                    the brief).

                    Charles A. Fiore, Gloucester County Prosecutor,
                    attorney for respondent (Dana R. Anton, Senior
                    Assistant Prosecutor, on the brief).

PER CURIAM
      Following the denial of his motion to suppress evidence, defendant Mark

A. Martin entered an open guilty plea to a Gloucester County indictment

charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1);

third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-

5(b)(3); third-degree possession of cocaine with intent to distribute within 1000

feet of a school, N.J.S.A. 2C:35-7; third-degree possession of Oxycodone,

N.J.S.A. 2C:35-10(a)(1); and fourth-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(a).1 Prior to sentencing, defendant moved to withdraw his

guilty plea pursuant to State v. Slater, 198 N.J. 145 (2009). The trial court

denied defendant's motion, and after appropriate mergers, the judge sentenced

defendant to a mandatory extended seven-year term of imprisonment with a

thirty-nine-month period of parole ineligibility, and a concurrent eighteen-

month term of imprisonment on the certain persons offense.

      Defendant raises the following points for our consideration.



            POINT I



1
  "An 'open plea' [i]s one that d[oes] not include a recommendation from the
State, nor a prior indication from the court, regarding sentence." State v. Kates,
426 N.J. Super. 32, 42 n.4 (App. Div. 2012) (citing State v. McDonald, 209 N.J.
549, 552 (2012), aff'd, 216 N.J. 393 (2014)).
                                                                          A-4032-17T4
                                        2
             THE DEFENDANT'S MOTION TO SUPPRESS
             EVIDENCE SHOULD HAVE BEEN GRANTED DUE
             TO THE EIGHT-DAY DELAY IN EXECUTING AN
             EX PARTE TELEPHONIC TRO WARRANT
             AUTHORIZING AN IMMEDIATE SEARCH FOR
             WEAPONS.

             POINT II

             THE GUILTY PLEA SHOULD BE VACATED AND
             THE MATTER SHOULD BE REMANDED FOR A
             TRIAL.[2]

             POINT III

             THE SENTENCE IS EXCESSIVE.

Having considered these arguments in light of the record and controlling law,

we affirm.

                                       I.

       On July 19, 2015, an East Greenwich Township Joint Municipal Court

judge issued a temporary restraining order (TRO) pursuant to the Prevention of

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, against defendant

after his girlfriend alleged that defendant physically assaulted and verbally

threatened her and her family. The contemporaneous notes taken by the judge

indicated defendant's girlfriend believed defendant kept handguns in his house,


2
    We have omitted the subpoints of this argument.


                                                                       A-4032-17T4
                                       3
possibly in his closet. The TRO included a search warrant, see N.J.S.A. 2C:25-

28(j), authorizing police to conduct a search of defendant's residence for

weapons, "possibly in [the] bedroom closet hidden in clothing." The search

warrant authorized police to conduct the search "immediately or as soon

thereafter as is practicable."

      Eight days later, an officer of the Woodbury Police Department served

defendant with the TRO at his Woodbury residence. Defendant was taken into

custody in his front yard pursuant to an outstanding, unrelated municipal

warrant.3 During the arrest, police obtained a key to defendant's residence from

his pocket, and using this key, entered defendant's home to execute the search

warrant provision of the TRO. Upon entry, police observed a throwing knife,

drug paraphernalia, and suspected marijuana in the living room. In the front

bedroom, police saw a razor blade and two dinner plates with a white powdery

residue alongside a sealed bag containing a white powdery substance. A search

of the bedroom closet revealed a plastic dish holding multiple pills, and other

items consistent with the packaging and sale of drugs. Police also observed mail




3
  The court did not hold an evidentiary hearing on the motion to suppress. We
recite the facts, which are apparently undisputed, as contained in the judge's
written decision denying that motion.
                                                                        A-4032-17T4
                                       4
addressed to defendant scattered within the front bedroom and throughout the

remainder of the residence. They did not find any firearms.

      Defendant filed a motion to suppress, alleging the TRO was granted on

unsworn testimony, and police failed to execute the search warrant "in an

exigent manner[,]" thus "vitiat[ing] its legitimacy and ultimately its legality."

Following oral argument, the judge denied defendant's motion, explaining his

reasons in a written decision.

      On the day of trial, defendant indicated that he wished to accept a plea

bargain previously offered by the State. Noting it was well past the plea cutoff

date, the judge informed defendant that if he wished to plead guilty it would be

an open plea to the indictment. The judge told defendant that he had spoken at

length with defense counsel and the prosecutor about the reasonableness of the

State's position on sentencing, but, he told defendant, "[t]he [c]ourt . . . is not

involved in the resolution of the case by way of the conversations between

counsel or negotiations." An extensive colloquy followed, which demonstrated

defendant understood the maximum sentence for each offense, and that there

was no plea agreement in place. Defendant provided a factual basis for each

count of the indictment.




                                                                           A-4032-17T4
                                        5
      Prior to sentencing, defendant moved to withdraw his guilty plea. After

considering oral argument, the judge engaged in a detailed analysis of the Slater

factors and denied defendant's motion.        At sentencing, the judge found

aggravating factors three (the risk that defendant will commit another offense);

six (the extent of defendant's prior criminal record and the seriousness of the

offenses of which he has been convicted); and nine (the need for deterring the

defendant and others from violating the law). N.J.S.A. 2C:44-1(a)(3), (6), and

(9). The judge found no mitigating factors, N.J.S.A. 2C:44-1(b), and imposed

the sentence noted above.

                                       II.

      In Point I, defendant contends that the judge should have granted his

motion to suppress because of the eight-day delay in execution of the search

warrant. Defendant argues the delay was inconsistent with the language of the

TRO, which required police to conduct the search "immediately or as soon

thereafter as is practicable[,]" and the intent of the PDVA "that relief be

available promptly." State v. Cassidy, 179 N.J. 150, 157 (2004) (citing N.J.S.A.

2C:25-18).

      The State contends that defendant never raised the issue in the Law

Division.    Indeed, the delay argument was limited to a single sentence in


                                                                         A-4032-17T4
                                       6
defendant's brief, and, at oral argument on the motion, substituted defense

counsel did not raise the issue at all. As a result, the record is incomplete, and

the judge's comprehensive written decision does not address this claim. The

State hypothesizes that any delay may have resulted from the fact that the TRO

was issued based upon the police response in one municipality, but service of

the TRO and the search was conducted by a different police department.        The

State also contends that the PDVA provides no specific timeframe for execution

of the search warrant authorized by the TRO, but Rule 3:5-5(a) provides a search

warrant "must be executed within [ten] days after its issuance[.]" Here, the

warrant was executed within eight days of its issuance.

      "Appellate courts reviewing a grant or denial of a motion to suppress must

defer to the factual findings of the trial court so long as those findings are

supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249,

262 (2015) (citing State v. Gamble, 218 N.J. 412, 424 (2014)). We do not,

however, defer to the trial court's legal conclusions, which we review de novo.

Id. at 263 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).

      We begin with the proposition that a search executed pursuant to a warrant

is presumptively valid and "a defendant challenging its validity has the burden

to prove 'that there was no probable cause supporting the issuance of the warrant


                                                                          A-4032-17T4
                                        7
or that the search was otherwise unreasonable.'" State v. Hamlett, 449 N.J.

Super. 159, 169 (App. Div. 2017) (quoting State v. Jones, 179 N.J. 377, 388

(2004)). As the Court recently clarified in State v. Hemenway,

            before issuing a warrant to search for weapons under
            the [PDVA], a court must find that there is (1) probable
            cause to believe that an act of domestic violence has
            been committed by the defendant; (2) probable cause to
            believe that a search for and seizure of weapons is
            "necessary to protect the life, health or well-being of a
            victim on whose behalf the relief is sought[]"; and (3)
            probable cause to believe that the weapons are located
            in the place to be searched.

            [239 N.J. 111, 117 (2019) (quoting N.J.S.A. 2C:25-
            28(f)).]

      The PDVA requires a hearing to be held within ten days of the filing of a

complaint when ex parte restraints were ordered in a TRO, N.J.S.A. 2C:25-29,

but it is silent as to any time limits for executing the search warrant contained

in the TRO. Certainly, we might presume that the Legislature intended any

search conducted under the authority of the TRO would occur upon service of

the TRO on defendant, by implication, within ten days of the issuance of the

order. That would be consistent with the general rule regarding all search

warrants. R. 3:5-5(a).

      Notably, defendant does not specifically claim that the information in the

search warrant that led to its issuance was "stale" eight days later when police

                                                                         A-4032-17T4
                                       8
executed the warrant. Cf. State v. Blaurock, 143 N.J. Super. 476, 479 (App.

Div. 1976) (discussing staleness of probable cause leading to issuance of search

warrant). However, even the untimely service of a warrant does not "alone

destroy its vitality . . . unless [a] defendant can show absence of probable cause

at the time the warrant is executed or legal prejudice . . . caused by the delay."

State v. Carangelo, 151 N.J. Super. 138, 149 (Law Div. 1977). "[T]imeliness

and its converse, staleness, must be measured by the [n]ature and regularity of

the allegedly unlawful activity." United States v. Nilsen, 482 F. Supp. 1335,

1339 (D.N.J. 1980). When that activity is of a continuous nature, such as here

— defendant's possession of a firearm in his home — "the passage of time

becomes less significant." Blaurock, 143 N.J. Super. 479. In short, we reject

defendant's claim that the passage of eight days between the issuance of the TRO

and the search of his home rendered the seizure of evidence found there

unconstitutional.

                                       II.

      In his second point, defendant argues that he should have been permitted

to withdraw his guilty plea because he failed to provide an adequate factual

basis, his guilty plea resulted from a material misrepresentation of the law,

specifically, the effect of merger on his potential sentence exposure , and he


                                                                          A-4032-17T4
                                        9
otherwise met the criteria in Slater. Only the Slater factors were advanced

before the Law Division as a basis for the motion, however, we consider all the

arguments and reject them.

      Defendant contends that in his factual basis, he only admitted knowing

the drugs and throwing knife were in his home, but not that he possessed them.

See, e.g., State v. Spivey, 179 N.J. 229, 236 (2004) ("A person actually

possesses an object when he has physical or manual control of it." (citing State

v. Brown, 80 N.J. 587, 597 (1979))); id. at 236–37 ("A person constructively

possesses an object when, although he lacks 'physical or manual control,' the

circumstances permit a reasonable inference that he has knowledge of its

presence, and intends and has the capacity to exercise physical control or

dominion over it during a span of time." (quoting State v. Schmidt, 110 N.J. 258,

270 (1988))).

      During the plea colloquy, defense counsel questioned his client.

Defendant acknowledged "hav[ing]" the cocaine, and "intend[ing] to . . . share

it with someone." Certainly, those statements imply the exercise of control and

dominion over the drug. We also reject defendant's argument that his intention

to "share" the drug was inadequate to prove possession with intent under State

v. Morrison, 188 N.J. 2 (2006). In Morrison, the Court held that "the element


                                                                         A-4032-17T4
                                      10
of 'intent to distribute' . . . cannot be established on the basis of the sharing of

drugs between or among joint possessors." Id. at 17. However, there was no

claim or evidence that defendant jointly possessed the drug with someone else.

       Defendant also admitted that his home was within 1000 feet of an

elementary school, he "had" the Oxycodone and did not have a prescription for

the drug, and that the throwing knife was his. Defendant acknowledged that

based upon a prior conviction he was "prohibited from possessing a weapon."

While the factual bases admittedly should have been more extensive, they were

adequate.

      We also reject defendant's claim that his guilty pleas should be vacated

because the court advised that if convicted of all charges his sentence exposure

was twenty-six-and-a-half years, which failed to take into account the likely

merger of certain offenses. However, "[m]isinformation provided to a defendant

that is not material to the decision to plead guilty does not render a plea

involuntary." State v. McQuaid, 147 N.J. 464, 487 (1997). In State v. Taylor,

the defendant argued that he should have been permitted to withdraw his guilty

plea because he was misinformed about the merger of certain offenses and, as a

result, his potential maximum sentence exposure. 80 N.J. 353, 358–59 (1979).

While recognizing that a defendant in fairness should be advised of "a


                                                                            A-4032-17T4
                                        11
reasonable likelihood of merger," the Court rejected a per se rule requiring

vacatur in the absence of such advice. Id. at 363. Instead, "[t]he Court endorsed

the approach that the decision whether to permit a defendant to withdraw his

plea should 'be decided on a case-by-case basis, depending upon whether the

defendant can be said to have been prejudiced by the omission.'" McQuaid, 147

N.J. at 488 (quoting Taylor, 80 N.J. at 363).

      Here, defendant acknowledged on the plea form that he had discussed the

concept of merger with defense counsel. Additionally, later in colloquy with

defense counsel, and in conjunction with reviewing defendant's answers on the

"Supplemental Plea Form for Drug Offenses [,]" the judge noted "there may be

some merger . . . here[,]" and that it could "impact[] the custodial provisions."

The judge announced he was hand-writing on the plea form that counsel

"reserves [the] right to argue merge[r,]" and did so.

      Lastly, defendant contends he met the Slater standard for withdrawing a

guilty plea prior to trial, particularly since there was no plea agreement and the

State suffered no prejudice. The argument lacks sufficient merit to warrant

extensive discussion. R. 2:11-3(e)(2). We add only the following.

      Slater established four factors for the court "to consider and balance in

evaluating motions to withdraw a guilty plea." 198 N.J. at 157 Those are: "(1)


                                                                          A-4032-17T4
                                       12
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. "[A] plea may only be set

aside in the exercise of the court's discretion." Id. at 156 (citing State v. Simon,

161 N.J. 416, 444 (1999)).

      Defendant never asserted "a colorable claim of innocence" before the trial

judge, who decided the asserted reasons were insufficient. The judge also noted

that although this was an open plea bargain, the State had indicated what

sentence it was likely to recommend and agreed to dismiss another indictment

against defendant. Finally, the judge noted that while the State admittedly was

not significantly prejudiced, defendant's withdrawal of guilty pleas entered on

the day of trial would make it more difficult to once again muster proofs and

assemble witnesses years after the events. The judge did not mistakenly exercise

his discretion by denying the motion.

      We affirm defendant's convictions.

                                        III.

      Defendant asserts his sentence was excessive. While acknowledging that

the court had to impose a mandatory extended-term sentence, see N.J.S.A.


                                                                            A-4032-17T4
                                        13
2C:43-6(f), he argues the judge premised the findings of aggravating factors on

defendant's prior criminal record, thereby "double-counting," and the judge

failed to find mitigating factor twelve because defendant cooperated with law

enforcement by pleading guilty.

      "Appellate review of sentencing decisions is relatively narrow and is

governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,

297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). As part of our

review, we must determine whether "the aggravating and mitigating factors

found by the sentencing court were not based upon competent and credible

evidence in the record[.]" State v. Fuentes, 217 N.J. 57, 70 (2014). We will

affirm the sentence if: "(1) the trial court followed the sentencing guidelines;

(2) its findings of fact and application of aggravating and mitigating factors were

'based upon competent credible evidence in the record;' and (3) 'the application

of the guidelines to the facts' of the case does not 'shock[] the judicial

conscience.'" State v. A.T.C., 454 N.J. Super. 235, 254 (App. Div. 2018)

(alteration in original) (quoting State v. Bolvito, 217 N.J. 221, 228 (2014)).

Here, defendant did not challenge the aggravating factors found by the court at

sentencing, nor did he urge application of any mitigating factors. Defendant's




                                                                           A-4032-17T4
                                       14
prior convictions were numerous and fully supported the sentence imposed. We

find no reason to disturb it.

      Affirmed.




                                                                     A-4032-17T4
                                    15
