RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4032-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK A. MARTIN, a/k/a

KELVIN GREEN, 

Defendant-Appellant.

___________________________

Submitted February 3, 2020 – Decided March 9, 2020

Before Judges Messano and Vernoia.

On appeal from the Superior Court of New Jersey, Law 

Division, Gloucester County, Indictment No. 15-10-

0688.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Kevin G. Byrnes, Designated Counsel, on 

the brief).

Charles A. Fiore, Gloucester County Prosecutor, 

attorney for respondent (Dana R. Anton, Senior 

Assistant Prosecutor, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2

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

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

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

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

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

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

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

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

1

 Prior to sentencing, defendant moved to withdraw his 

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

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

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

thirty-nine-month period of parole ineligibility, and a concurrent eighteenmonth term of imprisonment on the certain persons offense.

Defendant raises the following points for our consideration.

POINT I

1

 "An 'open plea' [i]s one that d[oes] not include a recommendation from the 

State, nor a prior indication from the court, regarding sentence." State v. Kates, 

426 N.J. Super. 32, 42 n.4 (App. Div. 2012) (citing State v. McDonald, 209 N.J. 

549, 552 (2012), aff'd, 216 N.J. 393 (2014)).
3

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THE DEFENDANT'S MOTION TO SUPPRESS 

EVIDENCE SHOULD HAVE BEEN GRANTED DUE 

TO THE EIGHT-DAY DELAY IN EXECUTING AN 

EX PARTE TELEPHONIC TRO WARRANT 

AUTHORIZING AN IMMEDIATE SEARCH FOR 

WEAPONS.

POINT II

THE GUILTY PLEA SHOULD BE VACATED AND 

THE MATTER SHOULD BE REMANDED FOR A 

TRIAL.

[2]

POINT III

THE SENTENCE IS EXCESSIVE.

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

we affirm.

I.

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

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

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

after his girlfriend alleged that defendant physically assaulted and verbally 

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

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

2

 We have omitted the subpoints of this argument.
4

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

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

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

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

thereafter as is practicable."

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

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

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

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

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

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

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

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

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

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

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

3

 The court did not hold an evidentiary hearing on the motion to suppress. We 

recite the facts, which are apparently undisputed, as contained in the judge's 

written decision denying that motion.
5

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addressed to defendant scattered within the front bedroom and throughout the 

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

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

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

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

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

reasons in a written decision.

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

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

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

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

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

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

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

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

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

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

count of the indictment.
6

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Prior to sentencing, defendant moved to withdraw his guilty plea. After 

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

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

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

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

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

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

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

the sentence noted above.

II.

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

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

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

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

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

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

2C:25-18).

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

Division. Indeed, the delay argument was limited to a single sentence in 
7

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defendant's brief, and, at oral argument on the motion, substituted defense 

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

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

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

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

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

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

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

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

warrant was executed within eight days of its issuance.

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

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

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

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

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

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

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

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

to prove 'that there was no probable cause supporting the issuance of the warrant 
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or that the search was otherwise unreasonable.'" State v. Hamlett, 449 N.J. 

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

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

before issuing a warrant to search for weapons under 

the [PDVA], a court must find that there is (1) probable 

cause to believe that an act of domestic violence has 

been committed by the defendant; (2) probable cause to 

believe that a search for and seizure of weapons is 

"necessary to protect the life, health or well-being of a 

victim on whose behalf the relief is sought[]"; and (3) 

probable cause to believe that the weapons are located 

in the place to be searched.

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

28(f)).]

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

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

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

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

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

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

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

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

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

search warrant that led to its issuance was "stale" eight days later when police 
9

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executed the warrant. Cf. State v. Blaurock, 143 N.J. Super. 476, 479 (App. 

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

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

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

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

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

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

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

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

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

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

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

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

unconstitutional.

II.

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

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

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

specifically, the effect of merger on his potential sentence exposure, and he 
10 A-4032-17T4

otherwise met the criteria in Slater. Only the Slater factors were advanced 

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

arguments and reject them.

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

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

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

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

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

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

circumstances permit a reasonable inference that he has knowledge of its 

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

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

270 (1988))).

During the plea colloquy, defense counsel questioned his client. 

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

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

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

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

v. Morrison, 188 N.J. 2 (2006). In Morrison, the Court held that "the element 
11 A-4032-17T4

of 'intent to distribute' . . . cannot be established on the basis of the sharing of 

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

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

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

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

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

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

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

adequate.

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

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

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

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

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

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

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

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

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

While recognizing that a defendant in fairness should be advised of "a 
12 A-4032-17T4

reasonable likelihood of merger," the Court rejected a per se rule requiring 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

evaluating motions to withdraw a guilty plea." 198 N.J. at 157 Those are: "(1) 
13 A-4032-17T4

whether the defendant has asserted a colorable claim of innocence; (2) the nature 

and strength of defendant's reasons for withdrawal; (3) the existence of a plea 

bargain; and (4) whether withdrawal would result in unfair prejudice to the State 

or unfair advantage to the accused." Id. at 157–58. "[A] plea may only be set 

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

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

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

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

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

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

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

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

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

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

his discretion by denying the motion.

We affirm defendant's convictions.

III.

Defendant asserts his sentence was excessive. While acknowledging that 

the court had to impose a mandatory extended-term sentence, see N.J.S.A. 
14 A-4032-17T4

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

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

failed to find mitigating factor twelve because defendant cooperated with law 

enforcement by pleading guilty.

"Appellate review of sentencing decisions is relatively narrow and is 

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

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

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

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

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

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

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

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

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

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

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

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

sentencing, nor did he urge application of any mitigating factors. Defendant's 
15 A-4032-17T4

prior convictions were numerous and fully supported the sentence imposed. We 

find no reason to disturb it.

Affirmed.