State of New Jersey v. Cecilio Davila

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6302-11T3

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 20, 2016
v.
APPELLATE DIVISION
CECILIO DAVILA,

Defendant-Appellant.
_______________________________

Argued September 17, 2015 – Decided January 20, 2016

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Nos. 11-03-00394 and 11-03-00398.

James S. Friedman argued the cause for
appellant.

Garima Joshi, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General; Teresa A.
Blair, Deputy Attorney General, of counsel
and on the brief; Teresa Sia, Volunteer
Attorney, on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

Defendant entered into a negotiated guilty plea, reserving

the right to appeal a pre-trial motion relating only to a

dismissed count of the indictment. We hold that a defendant's
appeal of a pre-trial motion relating only to a dismissed count

is moot. To afford this defendant every benefit of his plea

agreement, we nevertheless reach the merits of his claim that

insufficient evidence was presented to the grand jury and

affirm.

Defendant Cecilio Davila was charged with the first-degree

crime of being a leader of a narcotics trafficking network,

N.J.S.A. 2C:35-3 (the Leader count). He was also charged in the

same indictment with eight other related crimes: third-degree

drug conspiracy, N.J.S.A. 2C:5-2, 2C:35-10(a), 2C:35-5(a)(1),

2C:35-5(b)(3) (count two); third-degree possession of heroin,

N.J.S.A. 2C:35-10(a)(1) (count three); third-degree possession

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

(b)(3) (count four); third-degree possession of cocaine,

N.J.S.A. 2C:35-10(a)(1) (count five); third-degree possession of

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

(b)(3) (count six); third-degree maintaining a fortified

structure for drug distribution activity, N.J.S.A. 2C:35-4.1(c)

(count seven); third-degree possession of a BB gun, N.J.S.A.

2C:39-5(b)1 (count eight); and second-degree possession of a BB

gun for an unlawful purpose, N.J.S.A. 2C:39-4.1 (count nine).

1
The indictment incorrectly refers to N.J.S.A. 2C:39-3(b),
possession of a sawed-off shotgun.

2 A-6302-11T3
 Defendant was also charged in a separate indictment with

the second-degree crime of certain persons not to possess

weapons, N.J.S.A. 2C:39-7(a).

The grand jury heard testimony from a New Brunswick police

sergeant, who testified that he was involved in an investigation

prompted by reports that defendant sold heroin and cocaine. The

investigation involved three separate locations and six

"controlled buys." The sergeant explained that a "controlled

buy" occurs when an informant is searched and given funds to

purchase drugs. The police then observe the informant

interacting with the suspect, after which the informant returns

to the officers where the drugs are relinquished and tested.

During the controlled buys, defendant involved two men in the

delivery of the drugs. Through wiretapped conversations, the

police discovered that drug purchasers contacted defendant and

defendant directed the purchasers to one of the two men to

obtain drugs. On other occasions, defendant's girlfriend drove

him in her car to make drug deliveries. Pursuant to search

warrants, one of which involved the search of the home of

defendant's sister, the police found illicit drugs, a .177

pellet pistol, drug distribution paraphernalia, and cash.

Subsequently, in a taped interview, defendant gave an

3 A-6302-11T3
incriminating statement to the police admitting that he sells

approximately 1000 to 2000 bags of heroin per week.

After unsuccessfully pursuing several pre-trial motions,

including a motion to dismiss the Leader count because

insufficient evidence was presented to the grand jury, defendant

entered into a plea agreement with the State. In the plea form,

defendant listed the pre-trial motions he had pursued.2 At the

plea hearing he reserved the right to appeal "all of the

motions" that had been decided by the judge and were listed in

his plea form. He pled guilty to counts four, seven and nine of

the first indictment, as well as to the single "certain persons"

crime charged in the second indictment. As part of the plea

agreement, the other charges against defendant, including the

Leader count, were dismissed, as were the charges against

defendant's sister and girlfriend. Defendant received an

aggregate custodial sentence of fifteen years in prison with

seven-and-one-half years3 of parole ineligibility.

2
We could not fully decipher this handwritten list with any
certainty, although it appears to state, verbatim: "Miranda
Hearing (Suppress Statement), Motion to Dismiss Indictment
severance pursuant to Bruton Application, Motion to Suppress for
insufficient probable cause and improper no knock warrant Motion
to Suppress as to identities of confidential informants."
3
This number reflects the period of parole ineligibility
recorded in the judgment of conviction. The judge stated on the
record that he was imposing a ninety-one month period of parole
(continued)

4 A-6302-11T3
 On appeal defendant raises the following single issue:

POINT I: THE TRIAL COURT'S FAILURE TO GRANT
THE LEADER MOTION WAS REVERSIBLE ERROR.

At our direction, the parties submitted supplemental briefs

on the question of whether defendant's appeal of a pre-trial

issue relating only to a dismissed count is moot. The State

argues that the issue is moot, while defendant argues that if we

reverse the trial judge's determination regarding the pre-trial

motion concerning the Leader count, he should be permitted to

withdraw his guilty plea because he would have received a better

plea agreement if he had not been facing the Leader count.

Defendant also argues that we should consider the issue,

even if otherwise moot, because defendant was told at the time

he pled guilty that he had preserved all of his pre-trial

motions for appeal. Defendant maintains that he should

therefore be afforded the benefit of his bargain and allowed a

full appeal on the merits, rather than an appeal that results in

a dismissal for mootness. See State v. Bellamy, 178 N.J. 127,

134 (2003) (citations omitted) ("A defendant has the right not

to be 'misinformed' about a material element of a plea

agreement, and to have his or her 'reasonable expectations'

(continued)
ineligibility. We assume the additional month resulted from an
error in computation.

5 A-6302-11T3
fulfilled." (first quoting State v. Nichols, 71 N.J. 358, 361

(1976); then quoting State v. Howard, 110 N.J. 113, 122

(1988))).

"When a party's rights lack concreteness from the outset or

lose it by reason of developments subsequent to the filing of

suit, the perceived need to test the validity of the underlying

claim of right in anticipation of future situations is, by

itself, no reason to continue the process." JUA Funding Corp.

v. CNA Ins./Cont'l Cas. Co., 322 N.J. Super. 282, 288 (App. Div.

1999) (citing Milk Drivers & Dairy Emps. v. Cream-O-Land Dairy,

39 N.J. Super. 163, 177 (App. Div. 1956)). "[C]ourts of this

state do not resolve issues that have become moot due to the

passage of time or intervening events." City of Camden v.

Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999). We consider

an issue moot when "the decision sought in a matter, when

rendered, can have no practical effect on the existing

controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J.

Super. 254, 257-58 (App. Div. 2006) (quoting N.Y. Susquehanna &

W. Ry. Corp. v. N.J. Dep't of Treasury, Div. of Taxation, 6 N.J.

Tax 575, 582 (Tax 1984), aff'd, 204 N.J. Super. 630 (App. Div.

1985)). We generally do not render advisory decisions, for

"[o]rdinarily, our interest in preserving judicial resources

dictates that we not attempt to resolve legal issues in the

6 A-6302-11T3
abstract." Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330

(1996) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301,

303-04 (1975) and Sente v. Mayor & Mun. Council of Clifton, 66

N.J. 204, 205 (1974)).

We now hold that if a pre-trial motion only affects a

dismissed count, an appeal of that pre-trial motion presents a

moot, non-justiciable question. Upon dismissal of the Leader

count pursuant to the plea agreement, defendant's claim relating

to that count on the basis of insufficient evidence presented to

the grand jury became moot. By seeking the dismissal of a count

already dismissed pursuant to a plea agreement, defendant is in

essence requesting that we provide an advisory opinion. See

Decker v. Northwest Envtl. Def. Ctr., __ U.S. __, 133 S. Ct.

1326, 1335, 185 L. Ed. 2d 447, 459 (2013) ("A case becomes moot

only when it is impossible for a court to grant any effectual

relief whatever to the prevailing party." (quoting Knox v. SEIU,

Local 1000, 567 U.S. __, 132 S. Ct. 2277, 2287, 183 L. Ed. 2d

281, 295 (2012))); JUA Funding Corp., supra, 322 N.J. Super. at

288.

"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." State v. Robinson, 224 N.J.

Super. 495, 498 (App. Div. 1988). The waiver even applies to

7 A-6302-11T3
claims of certain constitutional violations. See State v.

Knight, 183 N.J. 449, 470 (2005) ("[A] defendant who pleads

guilty is prohibited from raising, on appeal, the contention

that the State violated his constitutional rights prior to the

plea." (quoting State v. Crawley, 149 N.J. 310, 316 (1997)));

State v. J.M., 182 N.J. 402, 410 (2005) ("[T]he failure to enter

a conditional plea under Rule 3:9-3(f) generally bars appellate

review of non-Fourth Amendment constitutional issues.").

As our Supreme Court explained in Knight, supra, the waiver

rule has three exceptions. 183 N.J. at 471; see State v.

Wakefield, 190 N.J. 397, 417 n.1 (2007) (confirming "that only

three exceptions for waiver exist"), cert. denied, 552 U.S.

1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). The first,

expressly provided by Rule 3:5-7(d), permits a defendant to

challenge on appeal an unlawful search and seizure of evidence

after entering a guilty plea. See Knight, supra, 183 N.J. at

471. The second, expressly authorized by Rule 3:28(g), permits

an appeal after a guilty plea from an order denying entry into

the pre-trial intervention program. Ibid. Lastly, pursuant to

Rule 3:9-3(f), a defendant may appeal those adverse decisions

specifically reserved by a conditional guilty plea entered in

accordance with the Rule. Ibid.

8 A-6302-11T3
 Rule 3:9-3(f) requires that a defendant satisfy several

requirements before a conditional guilty plea can be accepted.

"[A] defendant may plead guilty while preserving an issue for

appellate review only with the 'approval of the court and the

consent of the prosecuting attorney.'" State v. Gonzalez, 254

N.J. Super. 300, 304 (App. Div. 1992) (emphasis added) (quoting

R. 3:9-3(f)). This reservation of "the right to appeal from the

adverse determination of any specified pretrial motion" must be

placed "on the record." R. 3:9-3(f). It must also specifically

be approved by the State and by the court. In approving a

defendant's preservation of issues for appellate review, the

court should act as a gatekeeper to comply with the purpose of

the Rule, by precluding agreements that preserve non-justiciable

or non-dispositive issues. See, e.g., Pressler & Verniero,

Current N.J. Court Rules, comment 7 on R. 3:9-3(f) (2016)

(stating that "[t]he primary utility of the rule" relates to

pre-trial issues encompassing disputes of a dispositive nature).

Here, defense counsel's casual mention of "all of the motions"

is insufficient; nor does a difficult-to-read handwritten list

included in the plea form satisfy the requirement of judicial

approval or constitute "on the record" acknowledgment of a

particular motion.

9 A-6302-11T3
 If a defendant reserves the right to appeal a motion and is

successful on appeal, he or she has the right to withdraw the

guilty plea and go to trial or renegotiate another plea.4 R.

3:9-3(f); State v. Diloreto, 362 N.J. Super. 600, 616 (App.

Div.), certif. denied, 178 N.J. 252 (2003), and aff'd, 180 N.J.

264 (2004). We note, however, that defendants are not entitled

to a negotiated plea offer. State v. Williams, 277 N.J. Super.

40, 46 (1994) ("[A] defendant has no legal entitlement to compel

a plea offer or a plea bargain; the decision whether to engage

in such bargaining rests with the prosecutor."). Thus, the

dismissal of a count does not ensure a "better plea offer," as

argued by defendant. While its dismissal results in fewer

charges pending, the State may not offer defendant a better

offer, or any plea offer at all. On the other hand, the mere

passage of time, a factor unrelated to defendant's success on

appeal, might well place defendant in a better position to

negotiate a resolution.

Here, defendant did not articulate with specificity that he

wished to preserve the right to appeal his motion to dismiss the

Leader count, nor did the judge approve that particular

4
Of course, if the defendant chooses to withdraw the guilty
plea, he or she would face all of the charges in place prior to
the plea, including any charges dismissed pursuant to the plea
agreement. See Howard, supra, 110 N.J. at 126.

10 A-6302-11T3
condition of his guilty plea. Even if the record had been

sufficient to preserve defendant's right to appeal the pre-trial

motion relating only to a dismissed count of the indictment, we

hold that the issue is moot.

We recognize that the State did not argue that the record

was insufficient to preserve the motion for appeal, nor did the

State argue that the issue was moot until we solicited briefing

on the issue of mootness. We view the State's appellate silence

on these two issues as entirely appropriate under the

circumstances. For the State to allow defendant to preserve the

right to appeal a motion at the trial level and then argue the

issue is moot on appeal could be considered as sharp practices,

tactics not rising to the level of prosecutorial standards we

expect in New Jersey. See Brundage v. Estate of Carambio, 195

N.J. 575, 603-04 (2008) (recognizing that "[o]ur courts have

long expressed a distaste" for sharp practices, which are

practices "employed by some members of the bar that are not

explicitly unethical but nonetheless tread perilously close to

the line of being unacceptable"). That being said, however, the

parties cannot confer jurisdiction on the court. See Sabella v.

Lacey Twp., 204 N.J. Super. 55, 62 (App. Div. 1985) ("If there

is no legally granted power in the court, the parties cannot

confer jurisdiction pursuant to an agreement between

11 A-6302-11T3
themselves." (quoting Manczak v. Dover, 2 N.J. Tax 529, 533 (Tax

1981))). In the interest of convincing a defendant to forego a

trial, the State cannot bind us to consider an issue that is

moot.

Defendant asserts that his right to appeal the trial

court's denial of his motion to dismiss the Leader count was an

incentive to accept the plea agreement. The State correctly

points out that defendant also received other inducements in

exchange for his guilty plea. Although no other pre-trial

motions were pursued on appeal, he reserved the right to appeal

all pre-trial motions. He had pursued a Miranda5 motion, a

motion to suppress evidence obtained after the execution of a

search warrant, a motion to reveal the identities of

confidential informants, and a motion regarding a potential

Bruton6 issue. Further, defendant procured the dismissal of

other counts against him, as well as the dismissal of all

charges against his sister and his girlfriend. While defendant

5
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
6
Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620,
1622, 20 L. Ed. 2d 476, 479 (1968) (holding that admission of a
co-defendant's confession in a joint trial violates a
defendant's right of cross-examination when there exists a
substantial risk that the jury, despite contrary instructions,
would look to the co-defendant's statements in determining
defendant's guilt).

12 A-6302-11T3
received benefits in addition to his right to appeal the Leader

count, these additional incentives do not diminish defendant's

right to receive every benefit promised.

An appeal does not guarantee any particular result – not an

affirmance nor a reversal. Appeals are also dismissed for

various reasons including mootness. See, e.g., R. 2:8-2

(permitting appellate courts to dismiss an appeal "at any time

on its own motion" on the basis of procedural or jurisdictional

grounds); State v. Alford, 99 N.J. 199, 200 (1984) (dismissing a

criminal appeal as moot). We understand, however, that a lay

person may reasonably assume that a right to appeal encompasses

the right to have the appeal heard on the merits. We are

clearly establishing mootness in this procedural posture for the

first time in this decision. Here, defendant could plausibly

argue in a post-conviction proceeding that he misunderstood his

ability to appeal the Leader motion on its merits when he

entered into the plea agreement. We will therefore consider

defendant's appeal on its merits.

"[T]he New Jersey Constitution does not restrict the

exercise of judicial power to actual cases and controversies."

State v. McCabe, 201 N.J. 34, 44 (2010) (citing State v.

Gartland, 149 N.J. 456, 464 (1997)); see N.J. Const. art. VI, §

1, ¶ 1. Occasionally, the courts will consider the merits of an

13 A-6302-11T3
issue notwithstanding its mootness where significant issues of

public import appear. Joye v. Hunterdon Cent. Reg'l High Sch.

Bd. of Educ., 176 N.J. 568, 583 (2003). Because a finding of

mootness under these circumstances is an issue of first

impression in New Jersey, we cannot fault the trial attorney for

not advising his client that the legal challenge to the

viability of the Leader count in the indictment was moot.

Therefore, to prevent a potential collateral attack on

defendant's conviction grounded on any claims impugning defense

counsel's performance in this respect, and to afford defendant

the benefit of all of the promises made to him when he entered

this guilty plea, we conclude that the public interest in the

finality and efficiency of litigation warrants a resolution on

the merits.

The evidence presented to a grand jury need not be

sufficient to convict the defendant, but must present a prima

facie case that a crime has been committed by the defendant.

See State v. Muhammad, 182 N.J. 551, 575 (2005) ("The State's

burden of proof in returning an indictment is to present the

grand jury with a prima facie case . . . ."); State v.

Reininger, 430 N.J. Super. 517, 531 (2013) ("The purpose of the

grand jury is to 'determine whether the State has established a

prima facie case that a crime has been committed and that the

14 A-6302-11T3
accused has committed it.'" (quoting State v. Hogan, 144 N.J.

216, 227 (1996))), certif. denied, 216 N.J. 367 (2013), cert.

denied, ___ U.S. ___, 134 S. Ct. 1947, 188 L. Ed. 2d 962 (2014).

A trial court "should not disturb an indictment if there is some

evidence establishing each element of the crime." State v.

Eckel, 429 N.J. Super. 580, 585 (Law Div. 2012) (citing Hogan,

supra, 144 N.J. at 236). The trial court should view the facts

"in the light most favorable to the State." State v. Saavedra,

222 N.J. 39, 56-57 (2015) (quoting State v. Morrison, 188 N.J.

2, 13, (2006)).

Thus, to sustain the Leader count, the State only needed to

present some evidence that: (1) "defendant conspired with two or

more persons"; (2) the purpose of the conspiracy "included a

scheme or course of conduct to unlawfully manufacture,

distribute, dispense, bring into, or transport in this State" a

controlled dangerous substance; (3) defendant was a financier,

"organizer, supervisor or manager of at least one other person";

and (4) "defendant occupied a high level position in the

conspiracy." See State v. Alexander, 136 N.J. 563, 568, 570-71

(1994); Model Jury Charge (Criminal), "Leader of Narcotics

Trafficking Network" (October 2000).

Here the dispute centered around whether the State

presented evidence to the grand jury that supported a finding

15 A-6302-11T3
that defendant was in a supervisory position, the third and

fourth elements. The State satisfied its low burden in proving

that some evidence existed establishing these elements. See

Eckel, supra, 429 N.J. Super. at 585. Because evidence was

presented through the police sergeant that defendant controlled

the activities of other members of the drug operation, the trial

court did not abuse its discretion in rejecting defendant's

motion to dismiss. See Hogan, supra, 144 N.J. at 229 ("[T]he

decision whether to dismiss an indictment lies within the

discretion of the trial court.").

Affirmed.

16 A-6302-11T3
___________________________________________________

GILSON, J.S.C. (temporarily assigned), concurring.

I concur in the majority's affirmance based on the

rationale that defendant's motion to dismiss count one of the

indictment lacks merit. I do not join in the holding that

defendant's appeal is moot.

In accordance with Rule 3:9-3(f), defendant entered into a

conditional plea of guilt preserving his right to appeal the

denial of a motion to dismiss count one of the indictment, which

charged him with the first degree crime of being a leader of a

narcotics trafficking network, N.J.S.A. 2C:35-3 (Leader count).

Under the plea agreement, defendant pled guilty to counts four,

seven and nine and to a separate indictment of certain persons

not to possess a weapon. The Leader count, as well as the

remaining counts of the indictment, were then to be dismissed at

defendant's sentencing. The prosecutor and defendant agreed to

all the terms of the plea agreement and the trial court accepted

the conditional plea. Defendant was thereafter sentenced in

accordance with the plea agreement and the Leader count was

dismissed. Under these facts, defendant's reserved right to

appeal the denial of his motion to dismiss the Leader count is

not moot.
 Three related reasons demonstrate why an appeal of a

preserved pretrial motion, which is then conditionally

dismissed, is justiciable and not moot. First, a properly

preserved right of appeal under Rule 3:9-3(f) renders the

concept of mootness inapplicable. "An issue is 'moot' when the

decision sought in a matter, when rendered, can have no

practical effect on the existing controversy." Greenfield v.

N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div.

2006) (quoting N.Y. Susquehanna & W. Ry. Corp. v. State Dep't of

Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax 1984),

aff’d, 204 N.J. Super. 630 (App. Div. 1985)). The concept of

mootness has its roots in the jurisprudential principle that

courts will not give advisory opinions. See Calderon v. Moore,

518 U.S. 149, 150, 116 S. Ct. 2066, 2067, 135 L. Ed. 2d 453,

455-56 (1996); North Carolina v. Rice, 404 U.S. 244, 246, 92 S.

Ct. 402, 404, 30 L. Ed. 2d 413, 415-16 (1971); State v. Harvey,

176 N.J. 522, 528 (2003). "A case is technically moot when the

original issue presented has been resolved, at least concerning

the parties who initiated the litigation." De Vesa v. Dorsey,

134 N.J. 420, 428 (1993) (plurality opinion) (Pollock, J.,

concurring) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J.

301, 303 (1975)).

2 A-6302-11T3
 Here, a decision on defendant's motion to dismiss the

Leader count will have a very real and practical effect on

defendant's conditional guilty plea. If successful on appeal,

defendant would have the right to withdraw his guilty plea. See

R. 3:9-3(f); State v. Diloreto, 362 N.J. Super. 600, 616 (App.

Div. 2003), aff’d, 180 N.J. 264 (2004). Count one charged

defendant with the first degree crime of being a leader of a

narcotics trafficking network. If convicted of that crime,

defendant faced a minimum of twenty-five years in prison without

eligibility of parole. See N.J.S.A. 2C:35-3. Consequently,

defendant argues that because of that significant potential

prison sentencing, he did not want to run the risk of going to

trial on that count and, thus, his ability to negotiate a lesser

sentence was restricted. Defendant also argues that if he had

been successful on appeal, he could have withdrawn his guilty

plea and either (1) proceeded to trial on the remaining second

and third degree charges, or (2) tried to negotiate a new plea

agreement. Alternatively, if unsuccessful on appeal,

defendant's guilty plea would have stayed in place. Under

either scenario, a ruling on defendant's appeal would have had a

very practical effect because it would give defendant exactly

what he bargained for — a decision on the merits of his appeal.

3 A-6302-11T3
 The majority reasons that "[u]pon dismissal of the Leader

count pursuant to the plea agreement, defendant's claim relating

to that count on the basis of insufficient evidence presented to

the grand jury became moot." I respectfully disagree. The

reservation of the right to appeal the motion is no different

than the conditional plea itself. Depending on the outcome of

the appeal, the plea of guilty can either be withdrawn or will

stay in place. In other words, just as any conditional plea of

guilty to any count is conditional, any and all related

dismissals of other counts are also conditional. If a defendant

is successful on appeal, he or she has the right to withdraw the

guilty plea and the State has the right to reinstate all

dismissed counts. The only counts that could not be reinstated

are counts found defective on appeal, which is exactly what

defendant sought on his appeal. In either scenario, the

decision on appeal has a very concrete and practical effect;

either a defendant can withdraw the guilty plea or be bound by

his or her guilty plea because the preserved motion has been

affirmed.

Second, holding that defendant's appeal is moot is

inconsistent with Rule 3:9-3(f). The Rule does not limit what

motions can be preserved. Instead, the Rule expressly states

that "any" motion can be reserved for appeal: "[A] defendant may

4 A-6302-11T3
enter a conditional plea of guilty reserving on the record the

right to appeal from the adverse determination of any specified

pretrial motion." R. 3:9-3(f). The Rule requires only two

conditions: (1) consent of the prosecutor; and (2) approval of

the court. Ibid.; see State v. Gonzalez, 254 N.J. Super. 300,

304 (App. Div. 1992).

In this case, both conditions were met. The prosecutor

expressly consented to defendant's reservation of his right to

appeal the denial of his motion to dismiss the Leader count.

The trial judge then expressly accepted the conditional plea and

noted that defendant was reserving his right to appeal a number

of motions, including the motion to dismiss the Leader count.

In entering into a conditional guilty plea agreement, the

State is not binding this court to consider a moot issue.

Instead, the State and defendant are doing exactly what Rule

3:9-3(f) allows them to do; that is, reserve the right to appeal

a specifically identified pretrial motion. Indeed, that is

exactly what the Rule was designed to achieve. See Pressler &

Verniero, Current N.J. Court Rules, comment 7 on R. 3:9-3(f)

(2016) (stating "[t]he purpose of this paragraph is . . . namely

to provide a technique for avoiding trial where the defendant's

willingness to plead guilty is dependent solely upon the

5 A-6302-11T3
disposition and opportunity for appellate review of separable

issues determinable on a pretrial basis").

It is well-recognized that plea agreements are to be

treated like contracts. See State v. Means, 191 N.J. 610, 622

(2007); State v. Conway, 416 N.J. Super. 406, 410-12 (App. Div.

2010). Accordingly, the reservation of a right to appeal a

specified motion is a material condition of the plea agreement,

a condition that does not become moot simply because the count

related to the motion is conditionally dismissed. Indeed, if we

were to take the reserved right away, then defendant should have

the right to withdraw his guilty plea.

I respectfully disagree with the majority's reasoning that

the State may now argue that the right to appeal is moot. The

State expressly entered into a plea agreement where a material

condition was the right to appeal the denial of the motion to

dismiss the Leader count. That same plea agreement expressly

recognized that the Leader count would be dismissed at the time

of sentencing. Like the conditional plea, the dismissal of the

Leader count through the plea agreement was also conditional.

Having entered into that plea agreement, it is inconsistent for

the State to now argue that the right to appeal is moot. Even

if the State took that position only after this court's

invitation to address the mootness issue, the State should have

6 A-6302-11T3
recognized that its prior representation to defendant and to the

trial judge precluded it from taking such an inconsistent

position.

Notably, this is not a case where defendant failed to

identify the motion he seeks to appeal. I respectfully disagree

with the majority's suggestion that the handwritten list in the

plea agreement was insufficient and that the judge did not

approve the condition. Both the State and defendant

acknowledged on this appeal that defendant had clearly reserved

the right to appeal the denial of his motion to dismiss the

Leader count. The trial judge then expressly accepted the

conditional plea. Indeed, if the right to appeal had not been

clearly preserved, there would be no need to reach the mootness

issue. See State v. Knight, 183 N.J. 449, 471 (2005)

(explaining that an unconditional guilty plea waived the

defendant's right to appeal).

The majority's opinion will be the first published opinion

in New Jersey holding that a reserved motion to appeal under

Rule 3:9-3(f) can become moot. While no published opinion in

New Jersey has expressly previously addressed the mootness

issue, this court has implicitly accepted the concept that such

preserved motions, even when connected to a dismissed count, are

not moot. See State v. Maxwell, 361 N.J. Super. 401, 402 (App.

7 A-6302-11T3
Div.) (considered the defendant's appeal from a denial of his

motion to dismiss particular counts of the indictment, including

counts that were dismissed under the plea), certif. denied, 178

N.J. 34 (2003). Moreover, a federal appellate court, which

applied a similar rule concerning conditional pleas, has

rejected the concept that a reserved motion to appeal becomes

moot. See United States v. Scott, 884 F.2d 1163, 1165 (9th Cir.

1989) (holding that a conditional guilty plea was not moot when

defendant sought to appeal the denial of his motion to dismiss

the indictment even after defendant pled guilty to superseding

information charging an offense different from the offense

contained in the indictment), cert. denied, 506 U.S. 901, 113 S.

Ct. 288, 121 L. Ed. 2d 213 (1992).

Finally, the concept of mootness as applied by the majority

treats defendants differently than the State. The majority

correctly recognizes that if a defendant is allowed to withdraw

a conditional guilty plea, the State can reinstate all charges

that had been in the indictment prior to the plea, including

charges dismissed pursuant to the plea agreement. See State v.

Howard, 110 N.J. 113, 125-26 (1988). If the State has the right

to reinstate dismissed charges after a conditional guilty plea

is withdrawn, a defendant should also have the right to appeal

an adverse ruling on a motion related to a conditionally

8 A-6302-11T3
dismissed count of the indictment. Just as the State has the

right to return to the position it had at the time the

conditional plea was negotiated, so too should a defendant have

the right to reserve the right to appeal a motion, even if that

motion relates to a count that will be dismissed as part of the

plea agreement. To hold otherwise is to reason that all issues

related to all counts that are dismissed are moot and cannot

have future practical effects no matter what happens on appeal.

In fact, the opposite is true. Because the appeal has the

potential of giving a defendant the right to withdraw the

conditional guilty plea, the State has the right to reinstate

the dismissed counts if the plea is withdrawn and a defendant

has the right to have the merits of his or her appeal ruled on

for all reserved motions. In both situations, the ruling on

appeal has a very practical effect.

In summary, I do not believe the appeal is moot. I concur

based on the substantive ruling that the trial court correctly

denied defendant's motion to dismiss the Leader count.

9 A-6302-11T3