SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3725-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMIE FRANKLIN, a/k/a

JAMIE JERMANY FRANKLIN,

JAMIE J. FRANKLIN, and

JAY-JAY,

Defendant-Appellant.

___________________________

Argued October 7, 2019 – Decided November 27, 2019

Before Judges Sabatino, Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment Nos. 17-06-0374,

17-06-0389, and 17-06-0437.

Stephen P. Hunter, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Stephen P. Hunter, of 

counsel and on the briefs).

Sarah C. Hunt, Deputy Attorney General, argued the 

cause for respondent (Gurbir S. Grewal, Attorney 

NOT FOR PUBLICATION WITHOUT THE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.
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General, attorney; Sarah C. Hunt, of counsel and on the 

brief).

PER CURIAM

Defendant Jamie Franklin was charged with first-degree gang criminality, 

N.J.S.A. 2C:33-29 (the gang criminality count), and numerous other crimes. He

moved to dismiss the gang criminality count, arguing that N.J.S.A. 2C:33-29 is 

unconstitutional because it is facially vague—providing inadequate notice of the 

conduct it prohibits and minimal guidelines to govern law enforcement—and 

overbroad—infringing his rights of free speech and association. The trial court 

denied the motion. Defendant subsequently entered into a plea agreement 

resolving the charges brought against him in three indictments. The plea 

agreement included dismissal of the gang criminality count. Defendant was 

sentenced in accordance with the plea agreement. The gang criminality count 

was dismissed. He appeals from the denial of his motion to dismiss the gang 

criminality count. In the alternative, he argues that the judgment of conviction 

should be amended to specify the order that the prison terms imposed are served. 

For the reasons that follow, we concur with the trial court and likewise 

conclude that N.J.S.A. 2C:33-29 does not violate the constitutional principles 

invoked by defendant. We therefore affirm the denial of the motion to dismiss 
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the gang criminality count, but remand to amend the judgment of conviction to 

set forth the sequence that the sentences imposed are to be served. 

I.

In October 2015, the Jersey City Police Department obtained a 

communications data warrant for defendant's Facebook account based upon 

probable cause that defendant was engaged in gang criminality as a member of 

the "M.O.B. Piru Bloods" criminal street gang.1 Police reviewed incriminating 

Facebook conversations between defendant and other members of the Bloods 

gang. Defendants and his cohorts allegedly discussed: (1) using guns for gang 

activity; (2) buying, selling, and trading guns and ammunition; (3) participating 

in and coordinating the buying, selling, and manufacturing of crack cocaine, 

PCP, and Percocet; (4) committing armed robberies and how the proceeds would 

be divided; and (5) targeting members of rival gangs for robberies and other 

violence. 

The investigation culminated in numerous charges being brought against 

defendant and eleven-co-defendants, including six that were also charged with 

gang criminality. A Hudson County Grand Jury returned a fifty-three count 

1

 According to the indictment, the M.O.B. Piru sect is also known as "Parkside," 

"5 Blocks," and "G'Z."
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indictment (Indictment No. 17-06-0374). Fifteen of those counts pertained to

defendant, charging him with first-degree gang criminality (count one); thirddegree conspiracy to distribute a controlled dangerous substance (CDS), (counts 

two, four, and five); second-degree conspiracy to distribute CDS (count three), 

second-degree conspiracy to commit unlawful possession of a handgun (count 

six); second-degree conspiracy to commit robbery (count seven); third-degree 

distribution of CDS (count eleven); third-degree distribution of CDS in a school 

zone (count twelve); second-degree distribution of CDS near a public park

(count thirteen); third-degree hindering apprehension (count fourteen); seconddegree unlawful possession of a handgun (count fifteen); third-degree receiving 

stolen property (count sixteen); fourth-degree unlawful possession of a firearm 

by a minor (count seventeen); and third-degree endangering the welfare of a 

child (count eighteen). 

The grand jury also returned two other single count indictments against 

defendant. Indictment No. 17-06-0389 charged defendant with second-degree 

unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f). Indictment No. 

17-06-0437 charged defendant with third-degree bail jumping, N.J.S.A. 2C:29-

7.
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Defendant moved to dismiss the gang criminality count, challenging the 

constitutionality of N.J.S.A. 2C:33-29. The trial court issued an order and

written opinion denying the motion. 

Defendant then entered into a plea agreement, pleading guilty to the single 

counts of Indictment Nos. 17-06-0389 and 17-06-0437, and the following counts 

of Indictment No. 17-06-0374: second-degree conspiracy (count three); thirddegree distribution of CDS (count eleven); and an amended charge of fourthdegree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count 

fifteen). In exchange, the State agreed to dismiss the remaining charges against 

defendant, including the gang criminality count, and to recommend an aggregate 

term of six and one-half years, subject to a five-year period of parole 

ineligibility. 

More specifically, the State would recommend the following prison terms: 

(1) on Indictment 17-06-0374, concurrent three-year flat terms on counts three 

and eleven, to be served consecutively to an eighteen-month term, subject to 

eighteen months of parole ineligibility on count fifteen; (2) a five-year prison 

term, subject to forty-two months of parole ineligibility on count one of 

Indictment No. 17-06-0389, to run concurrently with counts three and eleven of 

Indictment No. 17-06-0374; and (3) a three-year flat term on count one of 
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Indictment No. 17-06-0437, to run concurrently with counts three and eleven of 

Indictment No. 17-06-0374. 

In answer to question 4(e) of the standard plea form, defendant indicated 

he was waiving his right to appeal the denial of all pretrial motions except his 

motion to dismiss Indictment No. 17-06-0374, and expressly cited Rule 3:9-3(f). 

At sentencing, there was no explicit mention of the conditional nature of 

the plea that preserved the right to appeal the denial of the motion to dismiss.

2

The prosecutor did not indicate his consent to the conditional plea and the judge 

did not expressly approve it. 

The defense requested that the sentence on count fifteen of Indictment No. 

17-06-0374 be served first before the other counts. The State took no position 

on defendant's request to serve that prison term first and requested the court to 

sentence defendant in accordance with the terms of the plea agreement. The

trial court found aggravating factors three (risk the defendant will commit 

another offense), N.J.S.A. 2C:44-1(a)(3), and nine (need for deterring defendant 

2

 Near the conclusion of the sentencing hearing, defendant's trial counsel stated, 

"Judge, I did execute the notice of appeal rights with [defendant]. He signed it. 

A copy is with the [c]ourt. Thank you." That was the only mention of the right 

to appeal.
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and others from violating the law), N.J.S.A. 2C:44-1(a)(9), and no mitigating 

factors. 

The court sentenced defendant in accordance with the plea agreement to 

an aggregate six and one-half-year prison term subject to five years of parole 

ineligibility. The court stated that "all sentences are concurrent with each other 

and consecutive to [c]ount [fifteen]." When trial counsel asked the court to 

confirm that it had no objection to the eighteen-month term on count fifteen 

being served first, the court stated: 

Right. And well, that's why I sentenced it that way 

because the judgment of conviction is going to indicate 

the first sentence is [eighteen] months with [eighteen

months of parole ineligibility] and then the next 

sentence will be everything running concurrent to each 

other and consecutive. I'll indicate on the judgment of 

conviction that the [eighteen] with [eighteen] should be 

served first. 

The judgment of conviction did not so indicate. An amended judgment of 

conviction stated count eleven "is to run consecutive to count [fifteen] and 

concurrent with count [three] and indictments 17-06-437 and 17-06-389." This 

appeal followed.

On appeal, defendant raises the following points:

POINT I.

THE GANG CRIMINALITY STATUTE, N.J.S.A. 

2C:33-29, IS UNCONSTITUTIONAL BECAUSE IT 
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IS FACIALLY VAGUE, FAILING TO PROVIDE 

BOTH ADEQUATE NOTICE OF WHAT CONDUCT 

IT PROHIBITS AND MINIMAL GUIDELINES TO 

GOVERN LAW ENFORCEMENT. 

POINT II.

N.J.S.A. 2C:33-29 IS ALSO UNCONSTITUTIONAL 

BECAUSE IT IS OVERLY BROAD, INFRINGING 

UPON THE RIGHTS TO FREE SPEECH AND 

ASSOCIATION. 

POINT III.

THE JUDGMENTS OF CONVICTION SHOULD BE 

AMENDED TO EXPRESSLY INDICATE THE 

CORRECT ORDER THAT THE CONSECUTIVE 

SENTENCES WILL BE SERVED. 

II.

A.

We first address whether defendant waived his right to appeal from the 

denial of his motion to dismiss the gang criminality count. Defendant argues 

his plea was conditional. Question 4(e) of defendant's plea form states defendant 

waived his "right to appeal the denial of all other pretrial motions except the 

following: [Indictment No. 17-06-374] motion to dismiss Indictment[,] R. 3:9-

3(f)." However, the court did not give its approval on the record to defendant 

reserving the right to appeal from the denial of his motion to dismiss the gang 

criminality count during either the plea colloquy or the sentencing hearing. Nor 

did the prosecutor consent on the record to preservation of that right to appeal.
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"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. 

Davila, 443 N.J. Super. 577, 585 (App. Div. 2016) (quoting State v. Robinson, 

224 N.J. Super. 495, 498 (App. Div. 1988)). With limited exception, the waiver 

applies to claims of 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) ("failure to enter a conditional plea under Rule 3:9-3(f) 

generally bars appellate review of non-Fourth Amendment constitutional 

issues”).

The waiver rule has three exceptions. Knight, 183 N.J. at 471. The first 

exception pertains to challenges to an unlawful search and seizure of evidence 

after entering a guilty plea. R. 3:5-7(d). The second exception pertains to an 

appeal from an order denying entry into the pretrial intervention program. R.

3:28-6(d). The third exception is an appeal from an adverse determination of a 

pre-trial motion "specifically reserved by a conditional guilty plea entered in 

accordance with [Rule 3:9-3(f)]." State v. Davila, 443 N.J. Super. 577, 586 

(App. Div. 2016). Here, only the third exception is relevant. 
10 A-3725-17T3

Rule 3:9-3(f) provides in pertinent part:

With the approval of the court and the consent of the 

prosecuting attorney, a defendant may enter a 

conditional plea of guilty reserving on the record the 

right to appeal from the adverse determination of any 

specified pretrial motion. If the defendant prevails on 

appeal, the defendant shall be afforded the opportunity 

to withdraw his or her plea.

[R. 3:9-3(f) (emphasis added).]

"Ordinarily, a guilty plea conditioned on the reservation of the right to 

appeal must be approved by the plea judge and the reservation must be placed 

'on the record.'" State v. Nicolas, ___ N.J. Super. ___, ___ (App. Div. 2019)

(slip op. at 4) (quoting Davila, 443 N.J. Super. at 586). 

By not reserving the right to appeal on the record with the consent of the 

prosecutor and the approval of the court, defendant waived his right to seek 

appellate review of the denial of the motion to dismiss the gang criminality 

count. 

B.

For the sake of completeness, we also address whether defendant's 

challenges to the constitutionality of N.J.S.A. 2C:33-29 are also moot. Here, as 

part of his negotiated plea, defendant seeks to appeal a pre-trial motion relating 

only to the gang criminality count, which was dismissed at sentencing pursuant 
11 A-3725-17T3

to the terms of the plea agreement. The State argues the issue of the 

constitutionality of N.J.S.A. 2C:33-29 is moot. Conversely, defendant argues 

that if we reverse the trial court's determination that N.J.S.A. 2C:33-29 is 

constitutional, he should be permitted to withdraw his guilty plea and negotiate 

a better plea agreement because he would no longer be facing the first-degree 

gang criminality count. 

In Davila, we faced a functionally identical issue. 443 N.J. Super. at 583-

84. We explained that our courts "do not resolve issues that have become moot 

due to the passage of time or intervening events." Id. at 584 (quoting City of 

Camden v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999)). Nor do we 

render advisory opinions. Ibid. We held "that if a pre-trial motion only affects 

a dismissed count, an appeal of that pre-trial motion presents a moot, nonjusticiable question." Id. at 585. Accordingly, upon dismissal of the gang 

criminality count pursuant to the plea agreement, defendant's constitutional 

challenge to N.J.S.A. 2C:33-29 became moot. Ibid. 

C.

Although "defendant's appeal of a pre-trial motion relating only to a 

dismissed count is moot," Davila, 443 N.J. Super. at 581, "the New Jersey 

Constitution does not restrict the exercise of judicial power to actual cases and 
12 A-3725-17T3

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

Gartland, 149 N.J. 456, 464 (1997)). "Occasionally, the courts will consider the 

merits of an issue notwithstanding its mootness where significant issues of 

public import appear." Davila, 443 N.J. Super. at 589 (citing Joye v. Hunterdon 

Cent. Reg’l High Sch. Bd. of Educ., 176 N.J. 568, 583 (2003)). In accordance 

with a well-established principle, we decline to do so in this matter. 

We do not address the constitutional issues raised by defendant because 

the matter can be resolved by resort to our court rules and case law. As our 

Supreme Court recently stated, "[c]ourts should not reach a constitutional 

question unless its resolution is imperative to the disposition of litigation." State 

in the Interest of A.R., 234 N.J. 82, 97 (2018) (alteration in original) (quoting 

Randolph Town Ctr., L.P. v. Cty. of Morris, 186 N.J. 78, 80 (2006)). 

Consequently, "we do not address constitutional questions when a narrower, 

non-constitutional result is available." Ibid. (quoting USDA v. Scurry, 193 N.J. 

492 n.4 (2008)). See also Slack v. McDaniel, 529 U.S. 473, 485 (2000)

(recognizing a court "will not pass upon a constitutional question although 

properly presented by the record, if there is also present some other ground upon 

which the case may be disposed of." (quoting Ashwander v. TVA, 297 U.S. 288, 

347 (1936) (Brandeis, J., concurring))).
13 A-3725-17T3

Here, defendant's constitutional challenges to N.J.S.A. 2C:33-29 were not 

preserved in accordance with Rule 3:9-3(f) and are moot. Because we dispose 

of defendant's constitutional challenges on those bases, we decline to address 

the merits of defendant's Points II and III. 

III.

At sentencing, the trial court stated the first sentence to be served would 

be the prison term on count fifteen of Indictment No. 17-06-0374, and the 

judgment of conviction would indicate same. The judgment of conviction did 

not expressly state the order the sentences would be served. The State does not 

object to amending the judgment of conviction on Indictment No. 17-06-0374 

to reflect that the sentence on count fifteen shall be served first, consistent with 

the court's statement at sentencing. See State v. Abril, 444 N.J. Super. 553, 564 

(App. Div. 2016) ("In the event of a discrepancy between the court's oral 

pronouncement of sentence and the sentence described in the judgment of 

conviction, the sentencing transcript controls and a corrective judgment is to be 

entered." (citing State v. Rivers, 252 N.J. Super. 142, 147 n.1 (App. Div. 

1991))). 

We remand for entry of an amended judgment of conviction on Indictment 

No. 17-06-0374 that shall specify that the term on count fifteen shall be served 
14 A-3725-17T3

before the terms on counts three and eleven and the sentences on Indictment 

Nos. 17-06-0389 and 17-06-0437.

Affirmed in part and remanded in part for entry of an amended judgment 

of conviction on Indictment No. 17-06-0374 in accordance with this opinion. 

We do not retain jurisdiction.