SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5502-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY W. JONES, a/k/a

WILLIAM FALKINBURG,

and HAKEEM JONES,

Defendant-Appellant.

________________________

Submitted December 2, 2020 – Decided

Before Judges Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 17-04-0305.

Hegge & Confusione, LLC, attorneys for appellant 

(Michael Confusione, of counsel and on the brief). 

Lyndsay V. Ruotolo, Acting Prosecutor of Union 

County, attorney for respondent (Meredith L. Balo, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and 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NOT FOR PUBLICATION WITHOUT THE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.

December 24, 2020
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Defendant Gary W. Jones appeals from a June 25, 2019 order denying his 

motion to withdraw his guilty plea and an August 9, 2019 judgment of 

conviction. We affirm, save for defendant’s assertion of ineffective assistance 

of trial counsel, which we preserve for future application by defendant for postconviction relief (PCR). 

This appeal arises from a January 27, 2017 armed robbery committed by 

defendant outside a liquor store in Elizabeth. A Union County grand jury 

returned two indictments. Indictment No. 17-04-0304 charged defendant with 

first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1), and related offenses (the 

first indictment). Indictment No. 17-04-0305 charged defendant with seconddegree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (the second 

indictment). 

The underlying facts and procedural history were set forth in our opinion 

on direct appeal of the defendant's conviction and sentence from the first 

indictment. 

A jury convicted defendant Gary W. Jones of 

first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1); the 

lesser-included third-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(2); second-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(b)(1); 

second-degree possession of a weapon for unlawful 

purpose (handgun), N.J.S.A. 2C:39-4(a)(1); fourth-
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degree aggravated assault with a firearm (pointing), 

N.J.S.A. 2C:12-1(b)(4); and fourth-degree obstruction, 

N.J.S.A. 2C:29-1(a). The jury acquitted defendant of 

third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(A) 

and 2C:29-2(a)(3)(B). On that same day, defendant 

entered a guilty plea to second-degree certain persons, 

N.J.S.A. 2C:39-7(b)(1), charged in a separate 

indictment. After merging the possession of a weapon 

and pointing convictions with the first-degree robbery, 

the judge sentenced defendant to a discretionary 

persistent offender extended term of fifty years subject 

to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2. See also N.J.S.A. 2C:44-3(a) and 2C:43-7(a)(2). 

When sentenced, defendant was forty-five years old. 

We now affirm the convictions, vacate the sentence, 

and remand for a new sentence to be imposed. 

The circumstances of the crime, as we describe 

them, were captured on surveillance tape operated by 

the City of Elizabeth Police Department and a second 

surveillance tape, belonging to the store in front of 

which the robbery occurred. The films, and the stills 

extracted from them, were shown to the jury. The 

victim, and police officers who arrived on the scene 

immediately after defendant’s commission of the 

robbery, testified at trial. 

The victim was leaving the store at 

approximately 10:00 p.m. when defendant, who was 

armed, approached him and demanded his money. The 

victim responded that he had nothing and attempted to 

enter his vehicle, parked immediately in front of the 

establishment. Defendant followed, grabbed the 

victim’s arm and said, "Oh, you think I’m playing?"

The victim replied, "You really want to do this?"

Defendant shot the victim in the leg. The victim 

began to run towards the nearby police station, while 
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defendant gave chase. Elizabeth Police Officer Jason 

Luis was driving by when he heard the gunshot. He and 

his partner, John Londono, immediately looked towards 

the sound and saw a man running in their direction, with 

another person close behind. The officers immediately 

pulled over, and as they left their vehicle heard the man 

closest to them yell, "He shot me," pointing to his 

pursuer. The second man’s body was slanted sideways 

to the officers, his hands at his waistband. 

When Luis attempted to stop the second man, the 

second man began to run "in a full sprint" until he 

stumbled. Luis tackled him onto the ground and 

realized he had a gun. Luis knocked the gun aside, and 

along with Londono wrestled the second man, 

defendant, until they were able to handcuff him when 

other officers arrived. The officers arrested defendant 

and seized his gun.

The officers then drove defendant to the 

ambulance where the victim was being treated. Luis 

conducted the show-up, and he testified that before he 

spoke to the victim, he attempted to recall the 

identification warnings usually made prior to a photo 

array or a lineup. He recorded the identification on his 

bodycam. Luis told the victim that there was no 

certainty that the person he was about to see was the 

perpetrator. Before police even removed defendant 

from the vehicle, however, the victim called out that 

defendant shot him.

[State v. Jones, No. A-1499-18 (App. Div. Mar. 17, 

2020) (slip op. at 2-4).]

We affirmed the convictions. Id. at 2. We found that the robbery "was 

certainly a heinous crime in that after shooting the victim in the leg during the 
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robbery, defendant chased the victim. Defendant’s prior criminal history made 

him eligible for extended-term sentencing." Id. at 14. We nevertheless vacated 

the sentence and remanded for resentencing, concluding that imposing "a fiftyyear NERA sentence on a forty-five-year-old man [was] effectively a life 

sentence." Id. at 2, 14. 

On the same day the jury returned its verdict on the first indictment, 

defendant pled guilty to the certain persons offense, in exchange for a 

recommended sentence of a concurrent ten-year term, subject to a five-year 

period of parole ineligibility. During the plea hearing, defendant testified that 

he understood his sentencing exposure and the recommended sentence. He 

acknowledged that he was pleading guilty because he was guilty and that no one 

forced him to do so or made him any other promises. Defendant also

acknowledged the rights he was waiving by pleading guilty. Defendant testified

that he answered the questions on the plea forms, initialed the pages of the plea 

form, signed the supplemental Graves Act plea form, and did not want to change 

any of his answers. He further acknowledged that he was satisfied with the 

services provided by counsel and had no questions for his attorney or the court. 

Defendant provided a factual basis for his plea, acknowledging that on 

January 27, 2017, in Elizabeth, he unlawfully possessed a handgun without a 
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firearm permit and was not eligible to obtain a firearm permit because of a prior 

conviction. Based on defendant's testimony, the court accepted the plea. 

Prior to sentencing on the second indictment, defendant moved to 

withdraw his guilty plea. In a supporting certification, defendant asserted that 

despite the jury's verdict, he did not possess a weapon on the date of the robbery 

and was not guilty of the offenses. Defendant averred that "[i]t was the alleged 

victim that possessed a weapon." 

Defendant further asserted ineffective assistance of counsel, contending

that trial counsel failed to call unnamed witnesses and failed to introduce certain

evidence at the trial of the first indictment. He claimed that contrary to the 

testimony of one officer, who alleged that defendant had a weapon on his person 

when he detained him, police body camera video demonstrated that police were 

still searching for a weapon at the crime scene while he was already in custody. 

Defendant also claimed that trial counsel gave him inaccurate legal advice

by advising him that pleading guilty to the certain persons charge would not 

affect his appeal. He alleged that only after pleading guilty did he learn that,

even if successful on his appeal of the jury verdict, he would still have the certain 

persons conviction and would have to serve that sentence. He also alleged that 

trial counsel told him that the maximum sentence for the robbery was twenty 
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years with an eighty-five percent parole bar. Defendant stated it was only after 

he pled guilty to the certain persons offense that he was made aware that the 

State would be moving for an extended sentence. 

The court issued a June 25, 2019 order and written opinion denying 

defendant's motion to withdraw his guilty plea. It analyzed the motion under 

the four-prong test adopted by our Supreme Court in State v. Slater, 198 N.J. 

145, 157-58 (2009). The court found that defendant did not present a colorable 

claim of innocence, did not provide any evidence to support his claim that he 

did not possess a weapon during the incident, did not satisfy either prong of the 

test to set aside a guilty plea based on ineffective assistance of counsel, and pled 

guilty pursuant to a plea agreement. The court also found that withdrawal of the 

guilty plea would not unduly prejudice the State or give defendant an unfair 

advantage. Thus, three of the four Slater factors weighed against allowing 

withdrawal of the plea. 

On August 9, 2019, the judge sentenced defendant in accordance with the 

plea agreement to a concurrent ten-year term with a five-year parole-bar, finding 

aggravating factors three, six, and nine, and no mitigating factors. It found that 

from 1993 to 2014, defendant had been convicted of eleven crimes and exhibited 
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"a pattern of criminal conduct that is increasing in its severity." This appeal 

followed.

October 1, 2020, defendant was resentenced on the first indictment to an

extended twenty-five-year NERA term on the armed robbery; a concurrent fouryear term on the third-degree aggravated assault; a concurrent five-year term, 

subject to a forty-two-month period of parole ineligibility, on the second-degree 

unlawful possession of a weapon; and a one-year concurrent term on the fourthdegree obstruction. The judge found that aggravating factors one ("nature and 

circumstances of the offense"), N.J.S.A. 2C:44-1(a)(1); three (risk of 

reoffending), N.J.S.A. 2C:44-1(a)(3); six (prior record), N.J.S.A. 2C:44-1(a)(6); 

and nine (deterrence), N.J.S.A. 2C:44-1(a)(9); substantially outweighed 

mitigating factor nine (defendant unlikely to commit another offense), N.J.S.A. 

2C:44-1(b)(9).

Defendant raises the following points in this appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTION TO WITHDRAW HIS 

GUILTY PLEA BEFORE SENTENCING. 

POINT II

DEFENDANT'S SENTENCE IS IMPROPER AND 

EXCESSIVE. 
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I. 

Where a defendant asserts his innocence, we review the grant or denial of 

a motion to withdraw a guilty plea for abuse of discretion. State v. Tate, 220 

N.J. 393, 404 (2015) (citing State v. Lipa, 219 N.J. 323, 332 (2014)). An abuse 

of discretion "arises when a decision is 'made without a rational explanation, 

inexplicably departed from established policies, or rested on an impermissible 

basis.'" State v. Williams, 458 N.J. Super. 274, 280 (App. Div. 2019) (quoting 

Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). 

"[T]he defendant shall be permitted to withdraw the plea" if the trial court 

"determines that the interests of justice would not be served by effectuating the 

agreement reached by the prosecutor and defense counsel." R. 3:9-3(e). "[T]he 

timing of the motion will trigger different burdens of proof for the movant." 

Slater, 198 N.J. at 158. "Before sentencing, courts are to exercise their 

discretion liberally to allow plea withdrawals." Id. at 156 (citations omitted). 

"In a close case, the 'scales should usually tip in favor of defendant.'" State v. 

Munroe, 210 N.J. 429, 441 (2012) (quoting Slater, 198 N.J. at 156). 

A defendant moving to withdraw a guilty plea "bears the burden of 

presenting a 'plausible basis for his request' and a good-faith basis for 'asserting 

a defense on the merits.'" Id. at 442 (quoting Slater, 198 N.J. at 156). 
10 A-5502-18T2

In Slater, the court adopted the following four-prong test for determining 

whether defendant has met this burden: "(1) 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." 

Slater, 198 N.J. at 157-58. "Trial courts should consider and balance all of the 

factors discussed above in assessing a motion for withdrawal of a plea. No 

factor is mandatory; if one is missing, that does not automatically disqualify or 

dictate relief." Id. at 162. 

As to the first prong, "[a] bare assertion of innocence is insufficient to 

justify withdrawal of a plea." Id. at 158. A defendant must "present specific, 

credible facts and, where possible, point to facts in the record that buttress [his] 

claim." Ibid. Courts "should simply consider whether a defendant's assertion 

of innocence is more than a blanket, bald statement and rests instead on 

particular, plausible facts." Id. at 159. 

Under the second prong, the trial court should "focus[] on the basic 

fairness of enforcing a guilty plea by asking whether defendant has presented 

fair and just reasons for withdrawal, and whether those reasons have any force." 

Id. at 159. "The nature and strength of a defendant's reasons for withdrawal of 
11 A-5502-18T2

a plea will necessarily depend on the circumstances peculiar to the case." 

Munroe, 210 N.J. at 442. 

Under the third prong, the trial court should place a heavier burden of 

proof on a defendant who enters a plea as part of a plea bargain; however, this 

factor receives the least weight in the overall analysis because most criminal 

cases are resolved through plea bargains. Slater, 198 N.J. at 160-61. 

Under the fourth prong, "the critical inquiry . . . is whether the passage of 

time has hampered the State's ability to present important evidence." Id. at 161. 

"Thus, the trial court must consider the delay to the State in presenting its case 

to the jury because of the plea-withdrawal motion." Munroe, 210 N.J. at 443. 

Applying those principles, we affirm the denial of defendant's motion to 

withdraw his guilty plea substantially for the reasons expressed by the trial court 

in its comprehensive written decision. We add the following comments. 

The record supports the trial court's finding that defendant's "bare 

assertion of innocence" did not establish a colorable claim of innocence.

Defendant's profession of innocence is belied by his admission of guilt to the 

charge at his plea hearing. During the plea colloquy, he admitted that he 

unlawfully possessed a handgun and that a prior conviction made him ineligible 

to obtain a firearms permit. 
12 A-5502-18T2

In addition, defendant did not present the body cam videos that he claimed 

supported his claim of innocence. Nor did he establish that the videos 

corroborate his claims or that they still exist. More fundamentally, even if 

defendant no longer possessed the handgun when captured by police, the 

evidence presented at trial satisfied the jury that he possessed the handgun 

during the robbery, used it to shoot the victim in the leg, and chased the victim 

while still holding the handgun. 

Moreover, defendant pleaded guilty immediately after the jury found him 

guilty beyond a reasonable doubt of armed robbery, aggravated assault-causing 

bodily injury with a deadly weapon; unlawful possession of a weapon; 

possession of a weapon for an unlawful purpose (handgun); and aggravated 

assault with a firearm (pointing). See Jones, slip op. at 2. Aside from the merger

of certain counts into the robbery, those convictions were affirmed on appeal. 

As to defendant's claim of ineffective assistance of counsel, to the extent 

defendant’s claims are reliant on matters outside the record, we decline to 

consider defendant's argument in the present context, applying the "general 

policy against entertaining ineffective-assistance-of-counsel claims on direct 

appeal because such claims involve allegations and evidence that lie outside the 

trial record." State v. Preciose, 129 N.J. 451, 460 (1992). To that end, a claim 
13 A-5502-18T2

of ineffective-assistance-of-counsel is best addressed in a post-conviction relief 

proceeding. State v. Morton, 155 N.J. 383, 433 (1998). Our decision does not 

preclude defendant from raising his ineffective-assistance-of-counsel claim in a 

timely filed petition for post-conviction relief. See ibid. (citing State v. 

Marshall, 148 N.J. 89, 147-54 (1997) (permitting defendant to raise ineffective 

assistance of counsel claims in post-conviction relief proceeding despite 

rejection of these claims on direct appeal)). 

The second factor focuses on the basic fairness of enforcing a guilty plea. 

It requires that the court ask whether the defendant has presented “fair and just 

reasons for withdrawal,” and considers the effectiveness of those reasons. 

Slater, 198 N.J. at 159. Case law has identified a number of reasons that warrant 

withdrawal of a plea. Those reasons include: (i) whether “the court and 

prosecutor misinformed the defendant about a material element of the plea 

negotiation, which the defendant relied on in entering his plea;” (ii) “the 

defendant was not informed and, thus, did not understand material terms and 

relevant consequences of the guilty plea, namely, the direct, penal consequences 

of the plea;” (iii) the “defendant’s reasonable expectations under the plea 

agreement were not met;” and (iv) “the defendant has not only made a plausible 

showing of a valid defense against the charges, but also credibly demonstrated 
14 A-5502-18T2

why that defense ‘was forgotten or missed’ at the time of the plea.” Id. at 159-

60 (citations omitted).

The nature and strength of defendant’s reasons for withdrawal are 

inadequate. The review of the plea forms, the recitation of defendant's 

sentencing exposure, and the accurate description of the recommended sentence 

during the plea hearing, and defendant's testimony during the plea hearing, 

coupled with the fact that defendant was sentenced in accordance with the plea 

agreement demonstrate that defendant was not misled by counsel as to the 

outcome of his guilty plea. 

Defendant alleges that trial counsel misadvised him that the maximum 

sentence for his robbery conviction was a twenty-year NERA term. Counsel's 

advice was accurate at the time defendant pled guilty. The State had not yet 

moved for a discretionary persistent offender extended term. And, while the 

State's motion was ultimately granted, the fifty-year NERA term initially 

imposed by the trial court was reduced to a twenty-five-year NERA term on 

resentencing. Defendant has not demonstrated that he would not have pled 

guilty to the certain persons charge had he known his sentence for the robbery 

would be a twenty-five-year NERA term. See State v. Nuñez-Valdéz, 200 N.J. 

129, 139 (2009) (holding that to set aside a guilty plea based on ineffective 
15 A-5502-18T2

assistance of counsel, the defendant must demonstrate "that there is a reasonable 

probability that, but for counsel's errors, [the defendant] would not have pled 

guilty and would have insisted on going to trial." (alteration in original) (quoting 

State v. DiFrisco, 137 N.J. 434, 457 (1994))). 

Although defendant entered his guilty plea as part of a plea agreement, the 

judge did not place much weight on this factor and stated it had "little effect" in 

denying defendant's motion. 

The judge court found that withdrawal of defendant's guilty plea would 

neither unduly prejudice the State nor give defendant an unfair advantage. He

therefore concluded that the fourth factor "weigh[ed] in favor of withdrawal of 

[d]efendant's guilty plea." 

We conclude that the trial court properly applied and weighed the Slater

factors. The record amply supports its finding that three of the four Slater

factors weighed against allowing defendant to withdraw his guilty plea. (Da24). 

We discern no abuse of discretion. 

II. 

Defendant contends that his ten-year term sentence was excessive. We 

review a trial court's sentencing determination deferentially, State v. Lawless, 

214 N.J. 594, 606 (2013), and do not ordinarily substitute our judgment for that 
16 A-5502-18T2

of the sentencing court. State v. Liepe, 239 N.J. 359, 370-71 (2019) (citing State 

v. Fuentes, 217 N.J. 57, 70 (2014)). Our review is limited to consideration of: 

(1) whether guidelines for sentencing established by the 

Legislature or by the courts were violated; (2) whether 

the aggravating and mitigating factors found by the 

sentencing court were based on competent credible 

evidence in the record; and (3) whether the sentence 

was nevertheless "clearly unreasonable so as to shock 

the judicial conscience." 

[Liepe, 239 N.J. at 371 (quoting State v. McGuire, 419 

N.J. Super. 88, 158 (App. Div. 2011)).]

In our prior opinion, we found: "Defendant’s criminal history is lengthy 

and includes juvenile adjudications. He has been sentenced on ten different 

occasions between 1991 and 2013 for twelve indictable offenses and served 

prison and probation terms. Defendant has violated both probation and parole. 

He has also been convicted in municipal court of several offenses." Jones, slip 

op. at 12-13 (footnote omitted). Those same findings apply here. 

Defendant argues that the court failed to adequately weigh the aggravating 

and mitigating factors when it sentenced him to a maximum term. We disagree. 

The court noted that defendant's record included five adjudications of 

delinquency, four probationary terms, and four violations of probation (VOP) as 

a juvenile. As an adult, defendant incurred five disorderly persons convictions, 
17 A-5502-18T2

twelve prior indictable convictions, seven probationary terms, six VOPs, five 

prison terms, and five parole violations. 

The record fully supports the aggravating factors found by the court and 

its conclusion that those factors outweighed the non-existent mitigating factors. 

Defendant is fairly characterized as a persistent offender who has been 

committing offenses since he was fourteen. Imposing the recommended 

maximum term was not an abuse of discretion. Importantly, the sentence runs 

concurrently with the much longer NERA term imposed for the armed robbery. 

Defendant's sentence is not manifestly excessive or unduly punitive and does 

not shock the judicial conscience. 

Affirmed.