NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

CECILIO DAVILA,

Defendant-Appellant.

_______________________________

Argued September 17, 2015 – Decided

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 

APPROVED FOR PUBLICATION

January 20, 2016

APPELLATE DIVISION

January 20, 2016
2 A-6302-11T3

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.
3 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 
4 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)
5 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. 
6 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 
7 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 
8 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.
9 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.
10 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. 
11 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
12 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).
13 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 
14 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 
15 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 
16 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.
___________________________________________________

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.
2 A-6302-11T3

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)).
3 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.
4 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 
5 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 
6 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 
7 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. 
8 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 
9 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.