SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0656-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRENDON M. JAMES, a/k/a

BRANDON M. JAMES, JAMES

SENU, and BRANDON SENU,

Defendant-Appellant.

____________________________

Submitted October 31, 2018 – Decided

Before Judges Fuentes and Accurso.

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Accusation No.17-02-0065.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Ruth Elizabeth Hunter, Designated Counsel, 

on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Regina M. Oberholzer, Deputy Attorney 

General, of counsel and on the brief).

The opinion of the court was delivered by

NOT FOR PUBLICATION WITHOUT THE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 17, 2019
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FUENTES, P.J.A.D.

Pursuant to a negotiated plea agreement with the State, defendant Brendon 

M. James pled guilty to second degree unlawful possession of a handgun and 

third degree possession of marijuana with intent to distribute. More than a 

month after the plea hearing, defendant moved to withdraw his guilty plea under 

State v. Slater, 198 N.J. 145 (2007). The Criminal Part judge who presided over 

the plea hearing denied defendant's motion and sentenced him in accordance 

with the plea agreement. Defendant originally appealed the trial court's decision 

under the summary proceeding provided in Rule 2:9-11. The matter was 

thereafter transferred to the regular appellate calendar.

Defendant argues the trial court erred in denying his motion to withdraw 

his guilty plea because he did not provide a valid factual basis. Alternatively, 

defendant argues we should remand the matter for resentencing because the 

sentencing judge "incorrectly believed" he was not eligible for a waiver of the 

mandatory period of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-

6. We reject these arguments and affirm.

In Count Three of a Mercer County indictment returned on May 25, 2016, 

the grand jury charged defendant and codefendants Darnel Biggs and Shawn 

Reid with third degree possession of marijuana with intent to distribute, in a 
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quantity of no less than one ounce but no more than five pounds, N.J.S.A. 2C: 

35-5a(1) and N.J.S.A. 2C:35-5b(11). Count Four charged defendant and his 

codefendants with second degree possession of marijuana with intent to 

distribute within 500 feet of a public park, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-

7.1; and Count Five charged defendant and his codefendants with fourth degree 

possession of marijuana in a quantity of more than fifty grams, N.J.S.A. 2C:35-

5-10a(3).

Counts One, Two, and Six only involved charges against Biggs. Count 

One charged Biggs with second degree unlawful possession of a Taurus "Ultra 

Lite" .38 caliber revolver, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:58-4; Count Two 

charged Biggs with second degree unlawful possession of a Taurus "Ultra Lite" 

.38 caliber revolver, while in the course of committing or attempting to commit 

a drug-related offense, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:39-4.1a. Count Six, 

the last count of the indictment, charged Biggs with second degree possession 

of a Taurus "Ultra Lite" .38 caliber revolver, while having been previously 

convicted of third degree distribution of a controlled dangerous substance, 

N.J.S.A. 2C:39-7b.

On February 3, 2017, defendant appeared before the Law Division, 

Criminal Part at a hearing to prosecute a motion to suppress the evidence seized 
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by law enforcement authorities that formed the basis of the charges against him 

and codefendant Biggs. At this hearing, defendant's counsel addressed the 

motion judge as follows:

DEFENSE COUNSEL: Mr. James has indicated that he 

wants to resolve this matter for unlawful possession of 

a handgun second degree, five over three-and-a-half. 

The DAG [(Deputy Attorney General)] informed me 

that he would also have to plead to possession with 

intent to distribute, a third degree offense, because it is 

marijuana over an ounce and that would be a three flat 

concurrent. I should indicate on the record that Mr. 

James, since he's not charged with any handgun 

offenses, he is not charged with unlawful possession, 

he's also not charged with certain persons which, in 

fact, Mr. James is because he does have a prior burglary 

conviction. As --

THE COURT: [Is] . . . the three flat that the State was 

offering concurrent or consecutive?

DEFENSE COUNSEL: It's concurrent, Your Honor.

THE COURT: Okay.

Defense counsel explained to the judge that she had discussed with 

defendant the possibility of a plea agreement for over two hours that day and on 

several other occasions. Defense Counsel made clear on the record that 

defendant "was very adamant in the fact that he wanted to resolve this matter in 

this fashion." Defense counsel also represented to the judge that she had spoken 
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with the attorney who represented codefendant Biggs to confirm Biggs was 

willing to accept the terms of the plea agreement. Defense counsel stated:

[W]e have a resolution on the table if the parties are 

willing to enter it where Mr. James will plead to the 

handgun and the drugs recovered together upstairs in 

the bedroom and that Mr. Biggs will be pleading to the 

drugs that were recovered downstairs on the first floor. 

If that is, in fact, a -- and Mr. Reid would receive a 

dismissal. If that is, in fact, a plea agreement that Mr. 

Biggs and Mr. James are willing to enter into today, that 

is what is presently on the table.

. . . .

I just want to also indicate on the record it's my 

understanding that if this matter is not resolved today, 

the offer of five with a three-and-a-half with a 

concurrent three flat for Mr. James would no longer be 

available to him from the Deputy Attorney General's 

Office. 

As these discussions continued, the DAG confirmed he had the 

authorization from his superiors to enter into this plea agreement. At this point, 

defendant addressed the judge directly and stated: 

I've been trying to resolve this from day one. You know, 

when they came to my house, you know, I'm the owner

. . . I went in the house. I've been acknowledging the 

gun and the drugs being mine, not even the drugs 

downstairs. They're really his. Everything there was 

mine.

. . . .
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I want to plead guilty today.

The DAG prepared an Accusation charging defendant with second degree 

unlawful possession of a handgun. The terms of the plea agreement required 

defendant to plead guilty to the second degree charge in the Accusation and to 

Count Three in the indictment, which charged him with third degree possession 

of marijuana with intent to distribute. In exchange, the State would recommend 

that the court sentence defendant to a term of five years, with forty-two months 

of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c, on the 

second degree unlawful possession of a handgun charge and impose a term of 

three years flat on the marijuana charge. Both sentences were to run 

concurrently. The State would also dismiss the remaining counts in the 

indictment related to defendant.

Defense counsel confirmed these were the terms of the plea agreement 

and stated defendant was "prepared to provide a factual basis." Defense counsel 

also noted for the record that the DAG had agreed to "an extended sentencing 

date" of July 14, 2017, more than five months later. The judge stated: "I'm okay 

with it subject to the defendant remaining offense free." The judge then asked 

defendant a series of questions to ensure he understood the ramifications of his 

decision to plead guilty.
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In response to the judge's questions, defendant stated under oath that he 

was twenty-three years old, had graduated from high school, and attended "some 

college classes" in Criminal Justice. Defendant acknowledged that he had 

reviewed and answered the questions on the plea form with the assistance of his 

attorney. He was in good physical and mental health and was not under the 

influence of any substance or medication that impaired his judgment. Defendant 

told the judge that he understood the terms of the plea agreement, was aware of 

his constitutional rights, and was pleading guilty voluntarily. Defendant also 

indicated he was satisfied with the services provided by his attorney. 

Defense counsel also questioned defendant to establish a factual basis for 

his guilty plea to second degree unlawful possession of a handgun. The record 

shows defendant admitted that police officers entered his residence looking for 

someone else. In the process of searching for this person, the officers found a 

.38 caliber handgun in defendant's bedroom.1 Defendant admitted he acquired 

this handgun without the permit required by law. 

The only issue defendant contested in the course of providing the factual 

basis concerned whether he ever possessed the handgun outside of his residence. 

1

 Defendant stipulated the handgun the police recovered from his bedroom was 

the .38 caliber Taurus revolver identified in the Accusation. 
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This controversy was finally resolved when defendant admitted he carried the 

handgun outside of his residence at the time he purchased it. The following 

colloquy illustrates this point:

THE COURT: -- because there's no doubt that it was --

while it might not have been outside of the house that 

day or the day before, it had to have been outside of the 

house at some point.

DEPUTY ATTORNEY GENERAL: That was my line 

of questioning. It had to have been somewhere prior to 

that date to be brought into the house.

DEFENDANT: Yes, that's true.

DEFENSE COUNSEL: Okay, so prior to July 1st, 2015 

it was brought into the house?

DEFENDANT: Yes. 

DEFENSE COUNSEL: And you did not have a license 

to carry that gun outside of the house?

DEFENDANT: No.

DEFENSE COUNSEL: And you brought it into the 

house?

DEFENDANT: Yes.

THE COURT: How long had you lived there?

DEFENDANT: I lived there since November of

2014.
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THE COURT: Okay, so some time during that time 

period you brought it into the house?

DEFENDANT: Yes.

THE COURT: Okay.

DEFENSE COUNSEL: And you knew what you were 

doing when you were carrying it that you did not have 

a license to carry it?

DEFENDANT: Yes. 

The DAG also argued that since defendant had been convicted of burglary 

at the time the police found the handgun in his bedroom, it was unlawful for him 

to possess a handgun anywhere under N.J.S.A. 2C:39-7(b). Defendant also 

provided a factual basis for his guilty plea to third degree possession of 

marijuana with intent to distribute. We will not describe the factual basis for 

this crime since defendant is not challenging this conviction on appeal.

On March 10, 2017, defendant and the attorneys returned before the judge 

to correct a data entry problem. Because Biggs was the only person charged 

under the indictment with the second degree offense of unlawful possession of 

the handgun, the judiciary's computer system for criminal cases known as 

Promis/Gavel did not accept defendant's guilty plea to the same offense as part 

of an Accusation. Defense counsel explained that to correct this "technical 

glitch in the system," defendant had to sign a new waiver of indictment form. 
10 A-0656-17T1

The record shows the judge thoroughly explained to defendant the technical 

nature of the problem and reassured him this was intended to avoid any potential 

future misunderstanding or unintentional prejudice. In the judge's words: "you 

can't have an accusation number and an indictment number under the same case 

number[.]" 

Despite acknowledging everything that the judge and the attorneys 

explained to him on the record, defendant unexpectedly told the judge: "I 

understand that. I just don't -- I feel like I don't want to sign anything." The 

judge explained to defendant that if he did not sign these documents, it would 

be treated by the court as a request to withdraw the guilty plea he entered on 

February 3, 2017. This prompted the following exchange between defendant 

and the judge:

DEFENDANT: This is my reason for pleading guilt[y]. 

On the day of the motion [defense counsel] was 

supposed to subpoena my witness. She didn't subpoena 

my witness. I was stuck between a rock and a hard 

place.

THE COURT: You weren't stuck in any place. Let's 

stop with that right now. 

DEFENDANT: All right. Well, then, that's where I was 

at. Where's my witness?

THE COURT: You came out of nowhere, volunteered -

- no, no, stop. You came out of nowhere. We were 
11 A-0656-17T1

getting ready to do a testimonial suppression hearing 

and volunteered to plead guilty to a gun charge that you 

weren't even charged with.

DEFENDANT: That's because it belonged to me.

It's not about whether I'm charged with --

THE COURT: Okay. But -- so let's not get into [defense 

counsel] didn't do the things [defense counsel was] 

supposed to do. You volunteered to plead guilty to a 

gun charge, a second degree charge that was 

substantially more serious in terms of what your 

custodial exposure was than this drug charge.

I don't know anything about any witnesses but it's --

you have to make some sort of a decision about where 

you're going with this. If you want to file a motion to 

get your plea back I have no choice but to let you do 

that. You don't want your plea back, we have to fix the 

technical problems that are here.

DEFENDANT: I want my plea back. I want to go to 

trial.

THE COURT: All right. Well, you're going to have to 

file that motion.

. . . .

THE COURT: He wants to go to trial on what, on the 

gun charge or the drug charge?

DEFENDANT: Anything. It don't matter. I don't want 

to take this plea. Unless they give me a better plea –

THE COURT: All right. Well --

DEFENDANT: -- then I want to go to trial. 
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[(Emphasis added).] 

Represented by different counsel, defendant appeared before the trial 

court on July 25, 2017 to argue his motion to withdraw his guilty plea. Defense 

counsel argued that defendant did not provide an adequate factual basis to 

support his guilty plea to second degree unlawful possession of a handgun under 

N.J.S.A. 2C:39-5b. Defense counsel noted: "He stated he brought the . . . gun 

in some time before July 1st. That was the extent of it." Defense counsel argued 

the court failed to consider defendant's right to possess a handgun in his own 

home pursuant to N.J.S.A. 2C:39-6(e), which provides, in relevant part: 

"[n]othing in subsections b., c., and d. of N.J.S.2C:39-5 shall be construed to 

prevent a person keeping or carrying about his . . . residence[.]" Finally, defense 

counsel argued the State's fallback position concerning defendant's prior 

burglary conviction was unavailing. According to defense counsel, defendant's 

prior criminal record only applies if he had been charged with the offense 

codified in N.J.S.A. 2C:39-7(b), which makes a person previously convicted of

burglary or any other of the offenses listed therein, guilty of second degree 

unlawful possession of a handgun, regardless of the circumstances.

The State argued that defendant's burglary conviction rendered him per se 

ineligible to invoke the statutory defense under N.J.S.A. 2C:39-6(e). Thus, the 
13 A-0656-17T1

State argued that defendant's admission that he acquired a handgun without a 

license while being legally prohibited from having a handgun was a sufficient 

factual basis to support his plea.

The judge reviewed the transcripts of the plea hearing held on February 3, 

2017 as well as defendant's impromptu request to withdraw his guilty plea on 

March 10, 2017. The judge first summarized the factors the Supreme Court 

established in Slater for deciding a defendant's motion to withdraw a guilty plea: 

"(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." 198 N.J. at 150. The judge then made 

the following findings:

Defendant says, anything, it don't matter, I don't want 

to take this plea unless they give me a better plea. A 

clear, unequivocal statement that unless he got a better 

plea offer, he wanted to go to trial. Direct, honest, clear 

statement as to what his true motivation was; that he 

wanted a better number. And that comes on the heels of 

extensive colloquy during the plea hearing where he 

was advised not just what the State's recommendation 

was but the near inevitability of the five-year sentence 

with the three-and-a-half year stipulation of parole 

ineligibility.
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The judge concluded defendant did not raise a colorable claim of 

innocence. He proactively sought to plead guilty to second degree unlawful 

possession of a handgun, a crime he had not been charged with committing, to 

absolve Biggs. Defendant's criminal history rendered him per se ineligible to 

lawfully possess a handgun. The record reflects defendant was fully apprised 

of the penal consequences of his guilty plea, including the mandatory period of 

parole ineligibility required by the Graves Act. The judge thus denied 

defendant's motion to withdraw his guilty plea.

Defendant appeared for sentencing before the court on August 11, 2017. 

The court found defendant had two prior convictions for burglary, committed on 

May 30, 2012 and June 1, 2013, respectively. He was sentenced on September 

16, 2013, to two three-year terms of probation to run concurrently, with 226 

days of jail time credits. At the time, defendant resided with his girlfriend, her 

daughter, and defendant's son. The judge noted that the sentence related to the 

unlawful possession of a handgun was mandatory under the Graves Act, and 

sentenced defendant to a term of five years, with three-and-one-half years of 

parole ineligibility. On the charge of third degree possession of marijuana with 

intent to distribute, the judge sentenced defendant to a flat three-year term of 

imprisonment to run concurrently with the Graves Act sentence. The court 
15 A-0656-17T1

found aggravating factors N.J.S.A. 2C:44-1(a)(3) and (9), and no mitigating 

factors. 

Against this record, defendant now raises the following arguments.

POINT I

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTION TO WITHDRAW HIS 

GUILTY PLEA.

A. Defendant Did Not Provide an 

Adequate Factual Basis For His Guilty 

Plea, and the Trial Court Erred in Relying 

Upon an Offense That Defendant Was 

Neither Charged With Nor Pled Guilty To.

B. Defendant's Motion To Withdraw His 

Plea Should Have Been Granted under 

State v. Slater, 198 N.J. 145 (2009).

POINT II

ALTERNATIVELY, DEFENDANT SEEKS A 

REMAND FOR RESENTENCING BECAUSE THE 

TRIAL COURT INCORRECTLY BELIEVED THAT 

DEFENDANT WAS SUBJECT TO A MANDATORY 

THREE-AND-A-HALF YEAR PAROLE 

INELIGIBILTY PERIOD, WHEN IN FACT, 

DEFENDANT WAS ELIGIBLE FOR A GRAVES 

ACT WAIVER.

We reject these arguments and affirm. The argument challenging the trial 

court's decision to deny defendant's motion to withdraw his guilty plea based on 

the Slater factors lacks sufficient merit to warrant discussion in a written 
16 A-0656-17T1

opinion. R. 2:11-3(e)(2). The record shows the judge correctly found that 

defendant did not establish a colorable claim of innocence. The argument 

challenging the sentence imposed by the court is equally without merit. As the 

State correctly points out in its brief before this court, defendant did not seek a 

waiver of the Graves Act from the vicinage's Assignment Judge, as provided in 

N.J.S.A. 2C:43-6.2. Defendant raised the issue with his attorney for the first 

time after entering into a negotiated plea. 

Finally, although N.J.S.A. 2C:43-6.2 authorizes the prosecutor to refer a

case to the Assignment Judge for a waiver of the mandatory sentence in a Graves 

Act offense, State v. Nance, 228 N.J. 378, 394 (2017), in this case the prosecutor

did not make such a referral. More importantly, defendant did not request one. 

As an appellate court, we review defendant's sentence "in accordance with a 

deferential standard," State v. Fuentes, 217 N.J. 57, 70 (2014). We are not 

permitted to substitute our judgment for that of the sentencing judge. State v. 

Case, 220 N.J. 49, 65 (2014). We discern no legal basis to disturb the sentence 

imposed by the trial judge in this case.

Affirmed.