The opinion of the court was delivered by
KOBLITZ, J.A.D.
Defendant entered into a negotiated guilty plea, reserving the right to appeal a pre-trial motion relating only to a dismissed count of the indictment. We hold that a defendant’s appeal of a pre-trial motion relating only to a dismissed count is moot. To afford this defendant every benefit of his plea agreement, we nevertheless reach the merits of his claim that insufficient evidence was presented to the grand jury and affirm.
Defendant Cecilio Davila was charged with the first-degree crime of being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (the Leader count). He was also charged in the same indictment with eight other related crimes: third-degree drug conspiracy, N.J.S.A. 2C:5-2, 2C:35-10(a), 2C:35-5(a)(1), 2C:35-5(b)(3) (count two); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(l) (count three); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(l), (b)(3) (count four); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(l) (count five); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count six); third-degree maintaining a fortified structure for drug distribution activity, N.J.S.A. 2C:35-11(c) (count seven); third-degree possession of a BB gun, N.J.S.A. 2C:39-5(b) (count eight); and second-degree possession of a BB gun for an unlawful purpose, N.J.S.A. 2C:39-4.1 (count nine).
Defendant was also charged in a separate indictment with the second-degree crime of certain persons not to possess weapons, N.J.S.A. 2C:39-7(a).
The grand jury heard testimony from a New Brunswick police sergeant, who testified that he was involved in an investigation prompted by reports that defendant sold heroin and cocaine. The investigation involved three separate locations and six “controlled buys.” The sergeant explained that a “controlled buy” occurs when an informant is searched and given funds to purchase drugs. The police then observe the informant interacting with the suspect, after which the informant returns to the officers where the drugs are relinquished and tested. During the controlled buys, defendant involved two men in the delivery of the drugs. Through wiretapped conversations, the police discovered that drug purchasers contacted defendant and defendant directed the purchasers to one of the two men to obtain drugs. On other occasions, defendant’s girlfriend drove him in her car to make drug deliveries. Pursuant to search warrants, one of which involved the search of the home of defendant’s sister, the police found illicit drugs, a .177 pellet pistol, drug distribution paraphernalia, and cash. Subsequently, in a taped interview, defendant gave an incriminating statement to the police admitting that he sells approximately 1000 to 2000 bags of heroin per week.
After unsuccessfully pursuing several pre-trial motions, including a motion to dismiss the Leader count because insufficient evidence was presented to the grand jury, defendant entered into a plea agreement with the State. In the plea form, defendant listed the pre-trial motions he had pursued. At the plea hearing he reserved the right to appeal “all of the motions” that had been decided by the judge and were listed in his plea form. He pled guilty to counts four, seven and nine of the first indictment, as well as to the single “certain persons” crime charged in the second indictment. As part of the plea agreement, the other charges against defendant, including the Leader count, were dismissed, as were the charges against defendant’s sister and girlfriend. Defendant received an aggregate custodial sentence of fifteen years in prison with seven-and-one-half years of parole ineligibility.
On appeal defendant raises the following single issue:
POINT I: THE TRIAL COURT’S FAILURE TO GRANT THE LEADER MOTION WAS REVERSIBLE ERROR.
At our direction, the parties submitted supplemental briefs on the question of whether defendant’s appeal of a pre-trial issue relating only to a dismissed count is moot. The State argues that the issue is moot, while defendant argues that if we reverse the trial judge’s determination regarding the pre-trial motion concerning the Leader count, he should be permitted to withdraw his guilty plea because he would have received a better plea agreement if he had not been facing the Leader count.
Defendant also argues that we should consider the issue, even if otherwise moot, because defendant was told at the time he pled guilty that he had preserved all of his pre-trial motions for appeal. Defendant maintains that he should therefore be afforded the benefit of his bargain and allowed a full appeal on the merits, rather than an appeal that results in a dismissal for mootness. See State v. Bellamy, 178 N.J. 127, 134, 835 A.2d 1231 (2003) (citations omitted) (“A defendant has the right not to be ‘misinformed’ about a material element of a plea agreement, and to have his or her ‘reasonable expectations’ fulfilled.” (first quoting State v. Nichols, 71 N.J. 358, 361, 365 A.2d 467 (1976); then quoting State v. Howard, 110 N.J. 113, 122, 539 A.2d 1203 (1988))).
“When a party’s rights lack concreteness from the outset or lose it by reason of developments subsequent to the filing of suit, the perceived need to test the validity of the underlying claim of right in anticipation of future situations is, by itself, no reason to continue the process.” JUA Funding Corp. v. CNA Ins./Cont’l Cas. Co., 322 N.J.Super. 282, 288, 730 A.2d 907 (App.Div.1999) (citing Milk Drivers & Dairy Emps. v. Cream-O-Land Dairy, 39 N.J.Super. 163, 177, 120 A.2d 640 (App.Div.1956)). “[C]ourts of this state do not resolve issues that have become moot due to the passage of time or intervening events.” City of Camden v. Whitman, 325 N.J.Super. 236, 243, 738 A.2d 969 (App.Div.1999). We consider an issue moot when “the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.” Greenfield v. N.J. Dep’t of Corr., 382 N.J.Super. 254, 257-58, 888 A.2d 507 (App.Div.2006) (quoting N.Y. Susquehanna & W. Ry. Corp. v. N.J. Dep’t of Treasury, Div. of Taxation, 6 N.J.Tax 575, 582 (Tax 1984), affd, 204 N.J.Super. 630, 499 A.2d 1037 (App.Div.1985)). We generally do not render advisory decisions, for “[o]rdinarily, our interest in preserving judicial resources dictates that we not attempt to resolve legal issues in the abstract.” Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330, 676 A.2d 1065 (1996) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303-04, 344 A.2d 769 (1975) and Sente v. Mayor & Mun. Council of Clifton, 66 N.J. 204, 205, 330 A.2d 321 (1974)).
We now hold that if a pre-trial motion only affects a dismissed count, an appeal of that pre-trial motion presents a moot, non-justiciable question. Upon dismissal of the Leader count pursuant to the plea agreement, defendant’s claim relating to that count on the basis of insufficient evidence presented to the grand jury became moot. By seeking the dismissal of a count already dismissed pursuant to a plea agreement, defendant is in essence requesting that we provide an advisory opinion. See Decker v. Northwest Envtl. Def. Ctr., — U.S. -, 133 S.Ct. 1326, 1335, 185 L.Ed.2d 447, 459 (2013) (“A ease becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” (quoting Knox v. SEIU, Local 1000, 567 U.S. -, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281, 295 (2012))); JUA Funding Corp., supra, 322 N.J.Super. at 288, 730 A.2d 907.
“Generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea.” State v. Robinson, 224 N.J.Super. 495, 498, 540 A.2d 1313 (App.Div.1988). The waiver even applies to claims of certain constitutional violations. See State v. Knight, 183 N.J. 449, 470, 874 A.2d 546 (2005) (“[A] defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.” (quoting State v. Crawley, 149 N.J. 310, 316, 693 A.2d 859 (1997))); State v. J.M., 182 N.J. 402, 410, 866 A.2d 178 (2005) (“[T]he failure to enter a conditional plea under Rule 3:9—3(f) generally bars appellate review of non-Fourth Amendment constitutional issues.”).
As our Supreme Court explained in Knight, supra, the waiver rule has three exceptions. 183 N.J. at 471, 874 A.2d 546; see State v. Wakefield, 190 N.J. 397, 417 n. 1, 921 A.2d 954 (2007) (confirming “that only three exceptions for waiver exist”), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed.2d 817 (2008). The first, expressly provided by Rule 3:5—7(d), permits a defendant to challenge on appeal an unlawful search and seizure of evidence after entering a guilty plea. See Knight, supra, 183 N.J. at 471, 874 A.2d 546. The second, expressly authorized by Rule 3:28(g), permits an appeal after a guilty plea from an order denying entry into the pre-trial intervention program. Ibid. Lastly, pursuant to Rule 3:9—3(f), a defendant may appeal those adverse decisions specifically reserved by a conditional guilty plea entered in accordance with the Rule. Ibid.
Rule 3:9—3(f) requires that a defendant satisfy several requirements before a conditional guilty plea can be accepted. “[A] defendant may plead guilty while preserving an issue for appellate review only with the ‘approval of the court and the consent of the prosecuting attorney.”’ State v. Gonzalez, 254 N.J.Super. 300, 304, 603 A.2d 516 (App.Div.1992) (emphasis added) (quoting R. 3:9-3(f)). This reservation of “the right to appeal from the adverse determination of any specified pretrial motion” must be placed “on the record.” R. 3:9-3(f). It must also specifically be approved by the State and by the court. In approving a defendant’s preservation of issues for appellate review, the court should act as a gatekeeper to comply with the purpose of the Rule, by precluding agreements that preserve non-justiciable or non-dis-positive issues. See, e.g., Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 3:9—3(f) (2016) (stating that “[t]he primary utility of the rule” relates to pre-trial issues encompassing disputes of a dispositive nature). Here, defense counsel’s casual mention of “all of the motions” is insufficient; nor does a difficult-to-read handwritten list included in the plea form satisfy the requirement of judicial approval or constitute “on the record” acknowledgment of a particular motion.
If a defendant reserves the right to appeal a motion and is successful on appeal, he or she has the right to withdraw the guilty plea and go to trial or renegotiate another plea. R. 3:9—3(f); State v. Diloreto, 362 N.J.Super. 600, 616, 829 A.2d 1123 (App.Div.), certif. denied, 178 N.J. 252, 837 A.2d 1094 (2003), and affd, 180 N.J. 264, 850 A.2d 1226 (2004). We note, however, that defendants are not entitled to a negotiated plea offer. State v. Williams, 277 N.J.Super. 40, 46, 648 A.2d 1148 (1994) (“[A] defendant has no legal entitlement to compel a plea offer or a plea bargain; the decision whether to engage in such bargaining rests with the prosecutor.”). Thus, the dismissal of a count does not ensure a “better plea offer,” as argued by defendant. While its dismissal results in fewer charges pending, the State may not offer defendant a better offer, or any plea offer at all. On the other hand, the mere passage of time, a factor unrelated to defendant’s success on appeal, might well place defendant in a better position to negotiate a resolution.
Here, defendant did not articulate with specificity that he wished to preserve the right to appeal his motion to dismiss the Leader count, nor did the judge approve that particular condition of his guilty plea. Even if the record had been sufficient to preserve defendant’s right to appeal the pre-trial motion relating only to a dismissed count of the indictment, we hold that the issue is moot.
We recognize that the State did not argue that the record was insufficient to preserve the motion for appeal, nor did the State argue that the issue was moot until we solicited briefing on the issue of mootness. We view the State’s appellate silence on these two issues as entirely appropriate under the circumstances. For the State to allow defendant to preserve the right to appeal a motion at the trial level and then argue the issue is moot on appeal could be considered as sharp practices, tactics not rising to the level of prosecutorial standards we expect in New Jersey. See Brundage v. Estate of Carambio, 195 N.J. 575, 603-04, 951 A.2d 947 (2008) (recognizing that “[o]ur courts have long expressed a distaste” for sharp practices, which are practices “employed by some members of the bar that are not explicitly unethical but nonetheless tread perilously close to the line of being unacceptable”). That being said, however, the parties cannot confer jurisdiction on the court. See Sabella v. Lacey Twp., 204 N.J.Super. 55, 62, 497 A.2d 896 (App.Div.1985) (“If there is no legally granted power in the court, the parties cannot confer jurisdiction pursuant to an agreement between themselves.” (quoting Manczak v. Dover, 2 N.J.Tax 529, 533 (Tax 1981))). In the interest of convincing a defendant to forego a trial, the State cannot bind us to consider an issue that is moot.
Defendant asserts that his right to appeal the trial court’s denial of his motion to dismiss the Leader count was an incentive to accept the plea agreement. The State correctly points out that defendant also received other inducements in exchange for his guilty plea. Although no other pre-trial motions were pursued on appeal, he reserved the right to appeal all pre-trial motions. He had pursued a Miranda motion, a motion to suppress evidence obtained after the execution of a search warrant, a motion to reveal the identities of confidential informants, and a motion regarding a potential Bruton issue. Further, defendant procured the dismissal of other counts against him, as well as the dismissal of all charges against his sister and his girlfriend. While defendant received benefits in addition to his right to appeal the Leader count, these additional incentives do not diminish defendant’s right to receive every benefit promised.
An appeal does not guarantee any particular result— not an affirmance nor a reversal. Appeals are also dismissed for various reasons including mootness. See, e.g., R. 2:8-2 (permitting appellate courts to dismiss an appeal “at any time on its own motion” on the basis of procedural or jurisdictional grounds); State v. Alford, 99 N.J. 199, 200, 491 A.2d 698 (1984) (dismissing a criminal appeal as moot). We understand, however, that a lay person may reasonably assume that a right to appeal encompasses the right to have the appeal heard on the merits. We are clearly establishing mootness in this procedural posture for the first time in this decision. Here, defendant could plausibly argue in a post-conviction proceeding that he misunderstood his ability to appeal the Leader motion on its merits when he entered into the plea agreement. We will therefore consider defendant’s appeal on its merits.
“[T]he New Jersey Constitution does not restrict the exercise of judicial power to actual cases and controversies.” State v. McCabe, 201 N.J. 34, 44, 987 A.2d 567 (2010) (citing State v. Gartland, 149 N.J. 456, 464, 694 A.2d 564 (1997)); see N.J. Const. art. VI, § 1, ¶ 1. Occasionally, the courts will consider the merits of an issue notwithstanding its mootness where significant issues of public import appear. Joye v. Hunterdon Cent. Reg’l High Sch. Bd. of Educ., 176 N.J. 568, 583, 826 A.2d 624 (2003). Because a finding of mootness under these circumstances is an issue of first impression in New Jersey, we cannot fault the trial attorney for not advising his client that the legal challenge to the viability of the Leader count in the indictment was moot. Therefore, to prevent a potential collateral attack on defendant’s conviction grounded on any claims impugning defense counsel’s performance in this respect, and to afford defendant the benefit of all of the promises made to him when he entered this guilty plea, we conclude that the public interest in the finality and efficiency of litigation warrants a resolution on the merits.
The evidence presented to a grand jury need not be sufficient to convict the defendant, but must present a prima facie case that a crime has been committed by the defendant. See State v. Muhammad, 182 N.J. 551, 575, 868 A.2d 302 (2005) (“The State’s burden of proof in returning an indictment is to present the grand jury with a prima facie case____”); State v. Reininger, 430 N.J.Super. 517, 531, 65 A.3d 865 (2013) (“The purpose of the grand jury is to ‘determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it.’ ” (quoting State v. Hogan, 144 N.J. 216, 227, 676 A.2d 533 (1996))), certif. denied, 216 N.J. 367, 80 A.3d 748 (2013), cert. denied, — U.S. -, 134 S.Ct. 1947, 188 L.Ed.2d 962 (2014) . A trial court “should not disturb an indictment if there is some evidence establishing each element of the crime.” State v. Eckel, 429 N.J.Super. 580, 585, 60 A.3d 834 (Law Div.2012) (citing Hogan, supra, 144 N.J. at 236, 676 A.2d 533). The trial court should view the facts “in the light most favorable to the State.” State v. Saavedra, 222 N.J. 39, 56-57, 117 A.3d 1169 (2015) (quoting State v. Morrison, 188 N.J. 2, 13, 902 A.2d 860 (2006)).
Thus, to sustain the Leader count, the State only needed to present some evidence that: (1) “defendant conspired with two or more persons”; (2) the purpose of the conspiracy “included a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into, or transport in this State” a controlled dangerous substance; (3) defendant was a financier, “organizer, supervisor or manager of at least one other person”; and (4) “defendant occupied a high level position in the conspiracy.” See State v. Alexander, 136 N.J. 563, 568, 570-71, 643 A.2d 996 (1994); Model Jury Charge (Criminal), “Leader of Narcotics Trafficking Network” (October 2000).
Here the dispute centered around whether the State presented evidence to the grand jury that supported a finding that defendant was in a supervisory position, the third and fourth elements. The State satisfied its low burden in proving that some evidence existed establishing these elements. See Eckel, supra, 429 N.J.Super. at 585, 60 A.3d 834. Because evidence was presented through the police sergeant that defendant controlled the activities of other members of the drug operation, the trial court did not abuse its discretion in rejecting defendant’s motion to dismiss. See Hogan, supra, 144 N.J. at 229, 676 A.2d 533 (“[T]he decision whether to dismiss an indictment lies within the discretion of the trial court.”).
Affirmed.
The indictment incorrectly refers to N.J.S.A. 2C:39-3(b), possession of a sawed-off shotgun.
We could not fully decipher this handwritten list with any certainly, although it appears to state, verbatim: Miranda Hearing (Suppress Statement), Motion to Dismiss Indictment severance pursuant to Bruton Application, Motion to Suppress for insufficient probable cause and improper no knock warrant Motion to Suppress as to identities of confidential informants.
This number reflects the period of parole ineligibility recorded in the judgment of conviction. The judge stated on the record that he was imposing a ninety-one month period of parole ineligibility. We assume the additional month resulted from an error in computation.
Of course, if the defendant chooses to withdraw the guilty plea, he or she would face all of the charges in place prior to the plea, including any charges dismissed pursuant to the plea agreement. See Howard, supra, 110 N.J. at 126, 539 A.2d 1203.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 1622, 20 L.Ed.2d 476, 479 (1968) (holding that admission of a co-defendant’s confession in a joint trial violates a defendant’s right of cross-examination when there exists a substantial risk that the jury, despite contrary instructions, would look to the co-defendants statements in determining defendant’s guilt).