NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5129-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

FRANCIS G. LANGLEY, a/k/a
FRANCIS G. LANGLEY, JR., and
FRAN LANGLEY,

Defendant-Appellant.
————————————————————————————————-

Submitted August 8, 2017 – Decided September 13, 2017

Before Judges Hoffman and Currier.

On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Indictment
Nos. 13-07-0720 and 15-01-0008.

Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on
the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Jane C. Schuster,
Deputy Attorney General, of counsel and on
the brief).

PER CURIAM
Defendant Francis G. Langley appeals from two judgments of

conviction entered by the trial court on February 27, 2015.

Pursuant to a plea agreement covering two separate indictments,

the judgments of conviction declared defendant guilty of second-

degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b),

and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2). The

judge sentenced defendant to a five-year term of imprisonment

with no eligibility for parole on the weapons conviction and a

concurrent eighteen-month term on the resisting arrest

conviction. Defendant then moved for bail pending appeal, which

the sentencing judge denied.

On appeal, defendant challenges the judge's pretrial ruling

of April 9, 2014, following a hearing on April 1, 2014, denying

his motion to suppress physical evidence seized by police. He

also challenges the judge's pretrial ruling of January 5, 2015,

following a hearing on that date, denying his motion to suppress

his statements to police. Defendant further appeals the denial

of his post-sentence motion to withdraw his guilty plea. He

presents the following points for our consideration:

POINT I

USE OF THE WEAPON SEIZED HERE IN A CRIMINAL
PROSECUTION IS PROHIBITED UNDER THE DOMESTIC
VIOLENCE ACT, AND NOT JUSTIFIED UNDER THE
COMMUNITY CARETAKING DOCTRINE. ACCORDINGLY,
SUPPRESSION SHOULD HAVE BEEN GRANTED. U.S.

2 A-5129-15T1
CONST., AMEND[S]. IV, XIV; N.J. CONST.
(1947), ART. 1, PAR 7.

POINT II

THE MOTION COURT'S RULING AS TO SUPPRESSION
OF PHYSICAL EVIDENCE WAS BASED ON UNADMITTED
"EVIDENCE," AND IS ACCORDINGLY INVALID AND
MUST BE VACATED. U.S. CONST., AMENDS. VI,
XIV; N.J. CONST. (1947), ART. 1, PAR 10.
(NOT RAISED BELOW)

POINT III

THE DEFENDANT'S STATEMENTS WERE TAKEN IN THE
ABSENCE OF NECESSARY MIRANDA WARNINGS, AND
ACCORDINGLY MUST BE SUPPRESSED. U.S.
CONST., AMEND[S]. V, XIV.

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO WITHDRAW HIS PLEA. U.S. CONST.,
AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR.
9.

Finding no merit in these arguments, we affirm. We address the

facts and law relating to each point in turn.

At the April 1, 2014 suppression hearing, the State

presented testimony from Sergeant John Mazzuca of the Ocean City

Police Department. Sergeant Mazzuca stated that on June 27,

2013, at approximately 8:30 p.m., dispatch directed him to a

"domestic dispute" at a residence on Coolidge Road, which a

neighbor had reported to 9-1-1. Dispatch notified the sergeant

that a prior disturbance had occurred at the residence and

3 A-5129-15T1
defendant "had returned to the property and . . . forcibly

entered the rear door."

Sergeant Mazzuca arrived at the residence "almost

simultaneously" with two other police officers. Defendant's

mother-in-law met the officers as they approached and informed

them that defendant and his wife, N.L., were "arguing and

fighting inside" and that defendant was "screaming" at her. The

officers also learned that N.L.'s children fled the residence

during the fight.

Sergeant Mazzuca went inside the residence and heard a male

voice yelling. He entered a bedroom to find defendant and N.L.;

he observed N.L. "visibly shaken," upset, crying, and

"distraught because she felt her marriage was going away." The

officers then separated defendant and N.L. to speak with them

individually. Sergeant Mazzuca spoke with defendant in the

bedroom, who told him that he and N.L. "just had a verbal

dispute and no physical altercation had taken place."

Consistent with this explanation, the sergeant did not notice

any signs of physical injury and saw defendant "was packing up

his stuff to leave."

One of the other officers then entered the room and

informed Sergeant Mazzuca about his conversation with N.L.; she

stated defendant "told her to get a shotgun that was under the

4 A-5129-15T1
bed and load it and blow her head off." Police moved defendant

to a different bedroom where he admitted he made this statement,

adding that he "just thought she was suicidal" and "it was a bad

choice of words to make." The officers also asked defendant if

he had a shotgun; defendant admitted he had an unloaded shotgun

under his bed in the prior room and gave the officers permission

to check. Defendant further admitted to having a crossbow in

his closet.

Sergeant Mazzuca next inquired whether defendant had any

prior criminal convictions. Defendant replied that he had been

convicted of "theft from a vehicle." At that point, the

officers decided to seize the weapons, "partially for that

reason and also for the safety of his wife, who he had claimed

was suicidal." They retrieved the weapons from the locations

defendant indicated.

Sergeant Mazzuca testified that prior to this incident he

had encountered defendant during a "motor vehicle stop." Based

upon this previous involvement, he believed "there was a strong

possibility that [defendant] was a certain person not to possess

a weapon." However, the sergeant acknowledged he "was going to

have [to] research" the statute to make certain.

Sergeant Mazzuca also discussed with N.L. whether she

wanted to pursue a restraining order against defendant. When

5 A-5129-15T1
she responded that she did, he drove her to the police

headquarters. After N.L. "calmed down" at the station, Sergeant

Mazzuca noted he "did not feel she was a threat to commit

suicide at that point." He acknowledged the only indication

that N.L. was suicidal was defendant's statement at the

residence. However, he clarified that during his time at the

residence, "it was not [yet] determined whether she was or

wasn't [suicidal]," and the officers were acting under the

possibility that she "could be."

The officers conducted a criminal history check of

defendant at the station, which revealed "a number of felony

convictions," including some for burglary. Sergeant Mazzuca

noted that a burglary conviction qualifies an individual as a

certain person not to possess a weapon.

In a written opinion, the motion judge denied defendant's

motion to suppress the shotgun under two separate legal

theories. First applying the Prevention of Domestic Violence

Act (PDVA), N.J.S.A. 2C:25-17 to -35, the judge found "the

illegal nature of the weapons was immediately apparent when

[d]efendant told the police officers that he had been convicted

of 'car theft,' thus making him a certain person not to have

weapons." She added that defendant had no reasonable

expectation of privacy in his criminal records, and thus the

6 A-5129-15T1
records check "was not a search." Second, the judge determined

the search and seizure were permissible under the "emergency aid

doctrine," which she termed "a subcategory of [the] community

caretaking exception" to the warrant requirement. The judge

concluded that the possibility N.L. might have harmed herself

gave the officers "an objectively reasonable basis to believe

that an emergency required immediate assistance to preserve life

or prevent serious injury."

Defendant now argues the motion judge erred because neither

the PDVA nor the community-caretaking exception supported denial

of suppression. However, having reviewed the applicable law, we

are satisfied the judge appropriately denied suppression under

the emergency-aid doctrine.

When reviewing a motion to suppress, we "must uphold the

factual findings underlying the trial court's decision so long

as those findings are supported by sufficient credible evidence

on the record." State v. Rockford,

213 N.J. 424, 440

 (2013)

(quoting State v. Robinson,

200 N.J. 1, 15

 (2009)).              "Those

findings   warrant     particular   deference      when   they     are

'substantially influenced by [the trial judge's] opportunity to

hear and see the witnesses and to have the "feel" of the case,

which a reviewing court cannot enjoy.'"

Ibid.

 (alteration in

original) (quoting

Robinson, supra,

200 N.J. at 15

).        "To the

                              7                             A-5129-15T1
extent that the trial court's determination rests upon a legal

conclusion, we conduct a de novo, plenary review."

Ibid.


       "Both the United States Constitution and the New Jersey

Constitution         guarantee      an        individual's            right       to    be      secure

against unreasonable searches or seizures."                                 State v. Minitee,

210 N.J. 307, 318

 (2012) (citing U.S. Const. amend. IV; N.J.

Const. art. I, ¶ 7).            Searches and seizures conducted without a

warrant,        "particularly            in         a     home,            are     presumptively

unreasonable."          State       v.   Edmonds,

211 N.J. 117, 129

     (2012)

(quoting State v. Bolte,

115 N.J. 579, 585

 (1989)).                                       As such,

the    State    has    the    burden         of    proving       that      such    searches         and

seizures       are    "justified             by    one      of       the     '"well-delineated

exceptions" to the warrant requirement.'"                                  State v. Shaw,

213 N.J. 398, 409

 (2012) (quoting State v. Frankel,

179 N.J. 586, 598

, cert. denied,

543 U.S. 876

125 S. Ct. 108

160 L. Ed. 2d 128

 (2004)).

       The     exceptions      to     the         warrant     requirement              include      the

emergency-aid         and    community-caretaking                    doctrines.           State       v.

Hathaway,

222 N.J. 453, 468

 (2015); State v. Keaton,

222 N.J. 438, 452

    (2015).         Under         the    community-caretaking                 doctrine,

"[c]ourts have allowed warrantless searches . . . when police

officers have acted not in their law enforcement or criminal

investigatory         role,     but      rather          in      a    community         caretaking

                                         8                                                    A-5129-15T1
function."        State v. Bogan,

200 N.J. 61, 73

 (2009).                       Our Supreme

Court has held that the community-caretaking doctrine prohibits

"the warrantless entry into or search of a home in the absence

of    some     form     of       exigent          circumstances"      or     "objectively

reasonable emergency."             State v. Vargas,

213 N.J. 301, 305, 321


(2013).

      However,      the      Court      made       clear   that    "[p]olice       officers

serving in a community-caretaking role are empowered to make a

warrantless entry into a home under the emergency-aid exception

to the warrant requirement."

Id. at 323

.      "The emergency aid

doctrine     is    derived       from       the    commonsense     understanding        that

exigent circumstances may require public safety officials, such

as the police, . . . to enter a dwelling without a warrant for

the   purpose      of   protecting          or    preserving      life,    or    preventing

serious injury."

Hathaway, supra,

222 N.J. at 469

 (quoting

Frankel, supra,

179 N.J. at 598

).

      Courts       apply     a    "two-prong          test"    that       considers     "the

totality     of     the      circumstances"           to    determine       whether      the

emergency-aid doctrine justifies a warrantless search of a home.

Id. at 470, 474.           The State must show that "(1) the officer had

an objectively reasonable basis to believe that an emergency

require[d] that he provide immediate assistance to protect or

preserve life, or to prevent serious injury and (2) there was a

                                        9                                          A-5129-15T1
reasonable nexus between the emergency and the area or places to

be searched."        Ibid. (quoting

Edmonds, supra,

211 N.J. at 132

).

The doctrine does not require "certitude" of danger but only

reasonable      belief     that    immediate     action    is    required.

Ibid.


(quoting

Frankel, supra,

179 N.J. at 599

).                     Reasonableness turns

on the circumstances at the time and "does not depend on whether

it is later determined that the danger actually existed."

Ibid.


    If     an     emergency       exists,     "[t]he    emergency-aid         doctrine,

particularly when applied to the entry of the home, must be

'limited to the reasons and objectives that prompted' the need

for immediate action."

Edmonds, supra,

211 N.J. at 134

 (quoting

Frankel, supra,

179 N.J. at 599

).     "When    the    exigency      that

justifies       immediate       action       dissipates,       the     rationale      for

searching without a warrant is no longer present."

Ibid.


    Defendant does not dispute that police had the authority to

enter the home due to a report of domestic violence, but he

argues the emergency-aid doctrine does not apply to the gun

search     because    the       PDVA    governs      the   events       in    question.

However,     we     have       noted    that    exceptions        to    the     warrant

requirement still apply to searches that implicate the PDVA.

See State v. Perkins,

358 N.J. Super. 151, 161

 (App. Div. 2003)

("[U]nless the factual circumstances justify a search under a

recognized exception to the warrant requirement, a search and

                                       10                                       A-5129-15T1
resulting seizure under [the PDVA] is deemed reasonable . . . so

long    as   the    results   are    not       used       to   facilitate     a   criminal

prosecution.").        Moreover, in

Edmonds, supra,

211 N.J. at 139

-

40,    the   Court    considered         the   emergency-aid        doctrine        in   the

context of a domestic violence call.                      Because police discovered

no evidence of a domestic disturbance upon entering a residence,

the Edmonds Court concluded there was no objectively reasonable

basis to search the home.

Id. at 121-22

.

       Here,   we    conclude    that      the    officers        had    an   objectively

reasonable     basis    to    believe      that       a    danger   to   life      required

immediate assistance, and that there was a nexus between the

emergency and the area searched.                  Officer Mazzuca observed N.L.

was "distraught," and defendant stated she might be suicidal and

that he told her to take his shotgun and "blow her head off."

Based on these circumstances, the officers reasonably searched

the    locations     indicated      to    secure      the      shotgun    and     crossbow.

They did not expand their search beyond these specific areas.

Although the officers had separated defendant and N.L. at the

time of the search, the officers' actions were reasonable to

prevent the possibility that N.L. might harm herself.

       We are therefore satisfied that the motion judge correctly

applied the emergency-aid doctrine to uphold this search and

seizure.       We further note that the criminal history check of

                                    11                                             A-5129-15T1
defendant    was    lawful,    as    our       Court       has    held        that    criminal

background checks are not searches under the state or federal

constitutions.       See State v. Sloane,

193 N.J. 423, 436

(2008).

As such, we need not address defendant's arguments relating to

the judge's application of the PDVA.

II.

In Point II, defendant urges this court to vacate the

judge's ruling denying suppression of the physical evidence,

contending the judge improperly based her written opinion on

"unadmitted" evidence outside of the April 1, 2014 motion

record. Specifically, in her recitation of the background

facts, the judge apparently referenced information from police

reports and the neighbor's 9-1-1 calls, which were not testified

to at the motion hearing. Defendant further challenges the

judge's interpretation of certain facts relating to Sergeant

Mazzuca's understanding of his prior convictions.

We reject these arguments and need not consider them at

length. As discussed above, the testimony elicited at the

motion hearing was sufficient to support the judge's ruling.

Moreover, the State provided the court with the police reports

and audio of the 9-1-1 calls in the appendix to its motion

brief. The judge stated on the record that she had both

parties' briefs, and defense counsel did not object. Because

12 A-5129-15T1
defendant has failed to show plain error, R. 2:10-2, we decline

to disturb the judge's ruling on this basis.

III.

Defendant next challenges the judge's January 5, 2015

ruling, denying suppression of his statements to police. At

this second hearing, the State presented testimony from Ocean

City Police Officer Joshua Clarke, who was with Sergeant Mazzuca

at the subject residence. Officer Clarke spoke with N.L., who

stated defendant told her to "take my shotgun and kill

yourself"; she informed the officers that defendant kept a

shotgun underneath the bed. Officer Clarke thus became

concerned there were weapons on the premises and went to speak

with defendant. Pursuant to department protocol, he planned to

"secure the scene" and temporarily seize any firearms.

Defendant complied with the officers' request to move from

the master bedroom to the children's bedroom. While speaking

with Officer Clarke, defendant "seemed frustrated and agitated

with the situation" and said his comments "were a stupid thing

to say." Defendant "said that he did keep a shotgun underneath

the bed," "pointed to the bedroom [the officers] were standing

across the hallway from," and gave them permission to check.

According to Officer Clarke, defendant "volunteered" this

information, and he was not under arrest at this time. Officer

13 A-5129-15T1
Clarke acknowledged that the officers did not give defendant

Miranda1 warnings during this exchange.

After the officers seized the weapons, defendant asked if

he was free to leave. The officers "allowed him to gather up

some things and then he . . . was free to go." Defendant left

the residence, approximately forty minutes after police first

arrived.

The officers later checked defendant's criminal history at

the police station and then returned to the residence to arrest

him. According to the arrest report, defendant listed his home

address as the Coolidge Road residence where these events

transpired.

The motion judge denied defendant's suppression motion in

an oral opinion, concluding police did not need to give him

Miranda warnings because he was not subjected to a custodial

interrogation. The judge noted defendant "voluntarily provided

information to the police while in his own home and before any

indication that he would be questioned or taken into custody."

She found the police moved defendant to the children's bedroom

not to conduct a custodial interrogation but to "secure the

scene and to secure the safety of the officers and to secure the

persons in the home." The judge determined that the officers

1
Miranda v. Arizona,

384 U.S. 436

86 S. Ct. 1062

16 L. Ed. 2d 694

 (1966).
                           14                           A-5129-15T1
were    conducting   an   investigation,     and   thus   "[a]n   objectively

reasonable man would not [have] felt his freedom was compromised

in any significant way given these circumstances."

       Defendant now argues the motion judge erred by finding the

officers did not subject him to a custodial interrogation.                   As

noted, we grant deference to the judge's factual findings and

review her legal conclusions de novo.

Rockford, supra,

213 N.J. at 440

.

       It is well established that police officers must provide

Miranda warnings when they conduct a custodial interrogation,

which    is   "questioning   initiated      by   law   enforcement   officers

after a person has been taken into custody or otherwise deprived

of his freedom of action in any significant way."

.

Custodial interrogations that trigger the obligation to provide

Miranda warnings do not require physical restraint and may take

place in the suspect's home.           State v. Hubbard,

222 N.J. 249, 266

 (2015).      When not in custody, an accused has no Miranda

protection     because    there   is   no   police-dominated      atmosphere,

which forms the basis for the United States Supreme Court's

Miranda jurisprudence.        State v. Nyhammer,

197 N.J. 383, 406


(citing Beckwith v. United States,

425 U.S. 341, 346-47

, 96 S.



                                  15                                 A-5129-15T1
Ct. 1612, 1616,

48 L. Ed. 2d 1, 7-8

 (1976)), cert. denied,

558 U.S. 831

130 S. Ct. 65

175 L. Ed. 2d 48

 (2009).

      A court must consider the totality of the circumstances in

determining    whether    an   individual      is     in    custody.       State    v.

Milledge,

386 N.J. Super. 233, 244

 (App. Div.), certif. denied,

188 N.J. 355

 (2006).       "Pertinent factors include the duration of

the detention, the nature and degree of the pressure applied to

detain   the    individual,     the        physical        surroundings     of     the

questioning and the language used by the officer in summoning

the individual."         Ibid. (quoting State v. Pierson,

223 N.J. Super. 62, 67

 (App. Div. 1988)).              "The critical determinant of

custody is whether there has been a significant deprivation of

the   suspect's    freedom     of     action     based        on    the    objective

circumstances,     including         the     time      and         place   of      the

interrogation, the status of the interrogator, the status of the

suspect, and other such factors."              State v. P.Z.,

152 N.J. 86

,

103 (1997).

      We consider these standards when police questioning stems

from a reported domestic dispute.             See State v. Smith,

374 N.J. Super. 425, 431-32

 (App. Div. 2005).            "When considering the need

for Miranda warnings before questioning in a private residence,

our courts have not viewed the home as a location so isolated or

dominated by the police as to lead the reasonable person to

                                16                                          A-5129-15T1
conclude he or she is in custody or in danger of abuse."

Id. at 432

.    Though "police action subsequent to entering [a] residence

is likely to involve some restraint on the occupants' freedom of

action," we have analogized the detention involved "to field

investigations      of    suspicious            conduct      authorized     by     Terry    v.

Ohio,

392 U.S. 1

88 S. Ct. 1868

20 L. Ed. 2d 889

 (1968), and

traffic stops authorized by Berkemer v. McCarty,

468 U.S. 420

104 S. Ct. 3138

82 L. Ed. 2d 317

 (1984)."

Smith, supra,

374 N.J. Super. at 431

.        In    doing       so,     we   held    that,     absent

circumstances       equivalent        to        arrest,      in-home    questioning         is

insufficient       to   rise    to    the       level     of    custody     necessitating

Miranda warnings.

Id. at 431-33

.

       Additionally, where a defendant is merely "the subject of

an     officer's    attempt      to       gather        information,        the     required

compulsion    is    not    present         to    necessitate        Miranda       warnings."

State v. Dispoto,

383 N.J. Super. 205, 214

 (App. Div. 2006),

aff'd in part and modified in part,

189 N.J. 108

 (2007).

       Applying    these    principles,           we    find    there      are    more   than

sufficient grounds to treat the events under review as a non-

custodial situation.            The officers properly entered defendant's

home in order to investigate a reported domestic disturbance.

After hearing N.L.'s statement that a weapon was located under

the bed, they moved defendant to a different room to secure the

                                      17                                            A-5129-15T1
scene   and    asked   him    limited   questions        to   investigate     N.L.'s

account.      Defendant voluntarily           told the officers he kept a

shotgun under his bed and gave them permission to check.                          The

officers did not pressure defendant or place him under arrest,

he was in his own home the entire time, and he was free to leave

after police seized the weapon.

    Under      these    circumstances,        we    conclude     an    objectively

reasonable person would not have believed they were in police

custody during these events.            See

Smith, supra,

374 N.J. Super. at 432

.       In the absence of custodial interrogation,                    Miranda

warnings were not required and the motion judge did not err by

declining     to   suppress    defendant's      statements.           We   therefore

discern no basis to disturb the judge's ruling.

                                        IV.

    Last, defendant argues the judge should have granted his

motion to withdraw his guilty plea.                 This issue is governed by

the four-factor test expressed by our Supreme Court in State v.

Slater,

198 N.J. 145, 157-58

 (2009): "(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."

                                  18                                        A-5129-15T1
    Courts must balance all of the factors in deciding the

motion for withdrawal of a guilty plea.

Id. at 162

.         As no

factor is mandatory, the fact that one may be missing "does not

automatically disqualify or dictate relief."

Ibid.


    With regard to the first Slater factor, "[a] bare assertion

of innocence is insufficient to justify withdrawal of a plea."

Id. at 158

.       The defendant must present specific and credible

facts "and, where possible, point to facts in the record that

buttress   [his    or     her]    claim."

Ibid.

      Courts    may    look    to

evidence that was available to the parties when the defendant

entered his plea.

Id. at 158-59

.              Courts should not conduct a

"mini-trial" but should "simply consider whether a defendant's

assertion of innocence is more than a blanket, bald statement

and rests on particular, plausible facts."

Id. at 159

.

    Regarding       the     second          Slater     factor,     a     defendant      has

adequate reason to withdraw his or her plea where the court or

prosecutor   misinforms          the    defendant       about    an    element    of    the

plea, or where "the defendant was not informed and thus did not

understand" material terms and consequences of the plea.

Ibid.

The record shows that several months after sentencing,

defendant moved to withdraw his plea, or in the alternative, for

reconsideration of his motion for bail pending appeal. In

support of this motion, defendant claimed he only pled guilty

19 A-5129-15T1
because his attorney told him he would receive bail pending his

appeal if he did so. Defendant further asserted his innocence,

claiming the shotgun police recovered actually belonged to his

son, and it arrived at N.L.'s residence after he moved out.

Defendant submitted a letter and affidavit from his plea counsel

and affidavits from friends and family members to support these

claims.

Following a hearing on February 4, 2016, the judge2 denied

defendant's motion to withdraw his plea. Applying the Slater

factors, the judge found defendant had not asserted he was

innocent or demonstrated sufficient reasons for withdrawal;

rather, he "simply no longer wants [to] deal with the

consequences of the plea." The judge noted defendant entered

his plea pursuant to an agreement, and she found that withdrawal

would unfairly prejudice the State, which was prepared to go to

trial. The judge also rejected defendant's claim that he was

led to believe he would receive bail pending appeal, citing the

plea transcript and other portions of the record that showed he

was aware the State was opposing his motion. She noted that any

claims regarding his attorney's advice were appropriate for

post-conviction relief (PCR).

2
A different judge conducted defendant's plea withdrawal
hearing.
20 A-5129-15T1
Defendant now argues the judge erred in her application of

the Slater factors. We disagree. First, although defendant

submitted affidavits stating the shotgun was not his, the

suppression record shows defendant freely admitted to possessing

the shotgun. The record further shows that at the time of his

arrest, defendant told police he lived at the address where they

seized the shotgun. For these reasons, we find defendant did

not base his assertion of innocence upon credible facts.

Second, the record shows defendant was informed he was not

guaranteed bail upon pleading guilty. At his plea hearing,

defendant affirmed he understood that the State was going to

object to his application for bail pending appeal. His plea

form further noted the State would oppose bail. As the judge

appropriately noted, any claims defendant has against his

attorney are appropriate for PCR. Similarly, we find the judge

correctly balanced the remaining Slater factors to deny

defendant's motion. We discern no basis to reverse.

Affirmed.

21 A-5129-15T1