State v. Robinson

• Decision Date: 12 April 1988
• Citation: 224 N.J.Super. 495,540 A.2d 1313
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James L. ROBINSON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 495

224 N.J.Super. 495

540 A.2d 1313

STATE of New Jersey, Plaintiff-Respondent, v. James L. ROBINSON, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Feb. 29, 1988.

Decided April 12, 1988.

Alfred A. Slocum, Public Defender, for defendant-appellant (Karl L. Guthrie, East Orange, of counsel and on the brief).

W. Cary Edwards, Atty. Gen., for plaintiff-respondent (Robert E. Bonpietro, Deputy Atty. Gen., of counsel and on the letter brief).

Before Judges O'BRIEN, HAVEY and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

Defendant was charged in an indictment, as amended, with armed robbery, N.J.S.A. 2C:15-1, and other crimes. Subsequently, he filed a "motion to suppress" evidence. The motion was considered at a pretrial evidentiary hearing. It concerned the admissibility of a remark defendant made to the police at the time they arrived at his home during the course of an investigation and a subsequent statement given at police headquarters.

After the court concluded that the remark and statement were admissible and denied the motion, defendant pled guilty to the armed robbery charge and was sentenced to an indeterminate term not to exceed ten years. Other counts of the amended indictment were dismissed, and defendant was ordered to pay restitution in the amount of $491 and a $25 penalty for the benefit of the Violent Crimes Compensation Board at the rate of $5 per month.

On this appeal, defendant argues only that "(t)he incriminating statements obtained from the defendant should have been suppressed as the fruit of an illegal arrest" and "fruit of an illegal intrusion into the defendant's home." When the matter was submitted to us, we raised the issue concerning the appealability of the denial of the motion to suppress. We now hold that defendant's guilty plea constituted a waiver of his challenge to the admissibility of his statements. We therefore dismiss the appeal.

The only witness at the hearing was the arresting officer, Michael Zielenski, who testified that, as part of a police investigation concerning an armed robbery, he and his partner were directed to defendant. According to Zielenski, he asked defendant's mother "if her son was home and she said he was and she led us into his room.... He was awakened by us and he said, I know why you're here." The officer also testified that as a result of that remark, "[w]e advised him of his rights, verbally, at that time and he said, I know my rights. It's about the hold up." Defendant was taken to police headquarters where he "was given [a] formal rights statement which he filled out, voluntarily. He did give us a statement concerning the hold up at that time." Officer Zielenski also testified that defendant was arrested at his house "[a]s soon as he told us that he knew why we were there."

At the hearing, defendant argued that there was no probable cause to enter his house or to arrest him and that, therefore, his statement was unlawfully obtained. ¹ The court denied the motion, stating:

THE COURT: Well, it is not a search at all under any stretch of the imagination. It is an entry being made by the officer in the normal course of his investigation of a crime. So respectfully, I'm satisfied that the prosecutor has proven to this Court clearly, that there was probable cause to arrest him on the basis of the utterance and the investigation into the crime and that would follow, thereafter, in due candor from a defendant, I don't think there is any serious question about the statement itself given at the police station. He signed whatever form he had to, not once, but twice, and in effect, and gave a statement to the police which I find to be voluntary and there was no overriding of any right that he had under the circumstances.

Therefore, I am satisfied that the statement is admiss[i]ble and will be presented to the jury.

Generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea. See, e.g., State v. Truglia, 97 N.J. 513, 522-524, 480 A.2d 912 (1984); State v. Alevras, 213 N.J.Super. 331, 339-340, 517 A.2d 460 (App.Div.1986); State v. Rosenberg, 160 N.J.Super. 78, 80, 388 A.2d 1298 (App.Div.1978), certif. den. 78 N.J. 332, 395 A.2d 201 (1978); State v. Raymond, 113 N.J.Super. 222, 226-227, 273 A.2d 399 (App.Div.1971). ² Under New Jersey practice, there are three exceptions to the general rule involving waiver. Notwithstanding the guilty plea, by virtue of the rules governing criminal practice, a defendant may appeal from the denial of his motion to suppress as permitted by R. 3:5-7(d), from the denial of admission into pretrial intervention pursuant to R. 3:28(g), and, with consent of the court and approval of the prosecutor, from any other pretrial order when the issue is preserved, R. 3:9-3(f). ³

The only rule possibly applicable for purposes of preserving appealability in this case is R. 3:5-7(d). In response to our invitation for briefs on the question, defendant relies on that rule.

Defendant never sought to preserve the issue of appealability at the time of plea, and there was no discussion of the subject at that time. Hence, R. 3:9-3(f), which was adopted in 1980 after recommendation of the Supreme Court's Task Force on Speedy Trial and which was designed to permit preservation of issues for appeal without the necessity of full trials merely to preserve the issue, is not applicable in this case. See Judicial Conference Report, Task Force on Postindictment Delay, 105 N.J.L.J. 521, 534-535 (1980).

However, R. 3:5-7(d), which permits the defendant to appeal from the denial of his motion to suppress, is also not applicable in this situation. R. 3:5 is the successor to R.R. 3:2A-1 et seq., which was adopted by our Supreme Court in 1962 in response to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applying the exclusionary rule embodied in the Fourth Amendment to the states. R. 3:5 is entitled "Search Warrants," and it is clear that the rule relates to applications for and filings of applications to search for physical evidence and returns related thereto. ⁴ As part of the rule dealing with "search warrants," R. 3:5-7 concerns motions to suppress evidence seized pursuant to a warrant and evidence seized as a result of a warrantless search. That rule, which requires motions to suppress to be filed within 30 days of initial plea, see, e.g., State v. McKnight, 52 N.J. 35, 48, 243 A.2d 240 (1968); State v. Allaband, 134 N.J.Super. 353, 341 A.2d 340 (App.Div.1974), is applicable only to state and federal constitutional claims of unlawful searches and seizure of physical evidence. See State v. Keegan, 188 N.J.Super. 471, 474, 457 A.2d 1205 (App.Div.1983), certif. den. 93 N.J. 320, 460 A.2d 710 (1983); State v. Morales, 182 N.J.Super. 502, 508, 442 A.2d 1012 (App.Div.1981), certif. den. 89 N.J. 421, 446 A.2d 150 (1982). See also State v. DeLane, 207 N.J.Super. 45, 48-49, 503 A.2d 903 (App.Div.1986).

R. 3:5-7(d) was adopted in January 1977 following the United States Supreme Court opinion in Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975), which held that a guilty plea did not constitute waiver of an issue involving an illegal search when state law did not require such waiver. See Pressler, Current N.J. Court Rules, Comment R. 3:5-7 (1988) at 459. The rule permits a defendant to appeal from a judgment of conviction following the denial of his motion to suppress, notwithstanding that the judgment was entered pursuant to a guilty plea. Hence, this court has held that unsuccessful challenges to statements and Miranda violations cannot be raised on appeal after a guilty plea, pursuant to R. 3:5-7(d). See State v. DeLane, supra, 207 N.J.Super. at 48-49, 503 A.2d 903; State v. Morales, supra, 182 N.J.Super. at 507-509, 442 A.2d 1012; see also State v. Kaye, 176 N.J.Super. 484, 489, 423 A.2d 1002 (App.Div.1980), certif. den. 87 N.J. 316, 434 A.2d 69 (1981) (taking of blood sample); State v. Keegan, supra, (wiretaps statute). In fact, as in this case, Morales involved a claim that the statements "were the product of an illegal detention and that there was no probable cause for [defendant's] detention." 182 N.J.Super. at 507, 442 A.2d 1012.

The fact that R. 3:5-7(d), as part of the rules involving "Search Warrants" embodied in R. 3:5-1 et seq., is not applicable to oral and written statements is further evidenced by the rules and procedures relating to statements. In 1967, our Supreme Court made clear that motions related to the admissibility and voluntariness of statements of a defendant had to be considered at trial, not in advance thereof, and were therefore not to be treated similarly to issues presented under the Fourth Amendment. The Supreme Court's decision in this regard came very shortly after the then recent opinion of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and about four years after the adoption of R.R. 3:2A-6, the forerunner of R. 3:5-7. The determination of the Supreme Court concerning statements is embodied in State v. Graham, 59 N.J. 366, 283 A.2d 321 (1971), where the court stated:

It is urged that even though most evidential rulings must properly await the course of the trial, statements in the nature of confessions present special problems, such as those arising under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and should be dealt with before trial. Indeed in State v. Green, 49 N.J. 244 (1967), the defendant contended that he had a constitutional right to have the admissibility of his confession determined in advance of trial. We found no such constitutional right but recognized that arguments pro and con could readily be mustered on the question of whether it would not be better practice to have a pretrial determination on the issue of the confession's...