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Archive for April 15th, 2009

Eluding conviction upheld

Posted by whitecollarcrimenews on April 15, 2009

 

STATE OF NEW JERSEY,

 

Plaintiff -Respondent,

 

V.

 

JESUS ATURO COLON,

 

Defendant-Appellant.

 

____________________________

 

 

Submitted January 27, 2009 – Decided

 

Before Judges Parker and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-01099-I.

 

Robert J. De Groot, attorney for appellant.

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Peter DeRose, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Tried to a jury on April 10, 2007, defendant was convicted of second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b); and second-degree aggravated assault, causing serious bodily injury while fleeing, N.J.S.A. 2C:12-1(b)(6). On July 13, 2007, defendant was sentenced to two concurrent ten-year terms with an eighty-five percent parole ineligibility period on the second count.

On appeal, defendant raises the following issues for our consideration:

1. Defendant’s Right to Due Process of Law as Guaranteed by the Fourteenth Amendment to the United States Constitution and Art. 1 Par. 1 of the New Jersey Constitution was violated by the Prosecutor’s Misconduct. [Not Raised Below]

 

a. The Prosecutor’s summation expressing his belief that [Officer] Fidalgo testified credibly substantially prejudiced Defendant’s fundamental right to have the jury fairly evaluate the merits of his defense.

 

b. The Prosecutor’s summation implicitly expressing his belief that Defendant’s Witness was not credible substantially prejudiced [D]efendant’s fundamental right to have the jury fairly evaluate the merits of his defense.

 

2. Because The Jury Was Permitted To Infer That Defendant’s Conduct Created A “Risk Of Death Or Injury” If It Determined That His Conduct Violated Any of The Motor Vehicle Offenses Set Forth In Chapter 4 of Title 39, And Such Risk Is An Element Of The Second Degree Crime of Eluding, The Trial Court Committed Reversible Error When It Failed To Define And Delimit The Underlying Motor Vehicle Offenses. [Not Raised Below]

 

Having considered defendant’s contentions in light of the record and the applicable law, we affirm.

The trial evidence may be summarized as follows. Officer Paulo Fidalgo, of the Elizabeth Police Department, testified that on September 1, 2006, just after midnight, he and his partner, Officer Jean-Marie, were patrolling downtown Elizabeth in a marked police vehicle. While stopped at an intersection, Fidalgo “observed a vehicle cross [their] intersection at a high rate of speed.” Fidalgo was able to see the driver whom he described as a “[p]ossible Hispanic male with facial hair.”

Fidalgo and his partner pursued the vehicle and activated their lights after the vehicle “gained speed.” The vehicle “proceeded to pick up speed,” and “ran a red light on Elizabeth Avenue . . . .” Fidalgo estimated the vehicle’s speed to be “[r]oughly[] 50 miles [per] hour,” in a thirty-five mile speed zone.

After running the red light at Elizabeth Avenue, the vehicle “veered left . . . and appeared to have lost control and . . . then went into a ditch next to a utility pole right after the drawbridge on South First Street.”

Fidalgo and his partner exited their police car and “noticed that there was [a] smoke or fire condition coming from underneath the [disabled] vehicle.” There were three occupants in the vehicle, including the driver, and the officers “drew all the passengers to safety away from the vehicle.”

The individual in the driver’s seat was identified as defendant Jesus Colon. Fidalgo testified that defendant was the only occupant of the vehicle who had facial hair. When the officers first saw him, defendant was “[l]unged over the middle area between the driver’s seat and passenger’s seat[,]” with his legs “in the driver’s seat.”

Defendant’s vehicle sustained “[h]eavy front end damage and had fire damage done to it.” The fire department had to be called “to gain[] entry into the front door.”

Luis Benitez, who had been a passenger in defendant’s vehicle on the night in question, testified on behalf of defendant. Benitez has known defendant “since [they] were kids[,]” and described their relationship as being “like family . . . .”

On that night, Benitez was “walking down the block . . . a little intoxicated, because it was [his] birthday,” when he saw defendant “on the street and flagged him down.” Benitez asked defendant for a ride to a club. Benitez testified that defendant was not driving the vehicle; rather, a juvenile whose name he did not know was driving. Benitez stated that defendant “came out [of] the passenger’s side . . . .” Benitez entered the rear seat behind the driver and defendant re-entered the car on the passenger’s side.

As they drove on, Benitez stated that “the juvenile ate the light and the cops jumped on us.” The police chased the vehicle for “less than 15 minutes,” and then the car “crashed into a bridge and a light pole . . . .” Benitez testified that he injured his leg as a result of the crash.

During its deliberations, the jury asked for a readback of Officer Fidalgo’s testimony “with regard to the positioning of the three people.” The jury further requested a re-instruction on the definition of aggravated assault. Shortly after receiving that re-instruction, the jury rendered its verdict.

In his first argument on appeal, defendant contends that the prosecutor improperly vouched for the credibility of the State’s witness and implied to the jury that defendant’s witness, Benitez, had lied. Defendant refers us to the following statement in the prosecutor’s summation:

Think about this. Officer Fidalgo just doing his job. That is what he gets paid to do. No vested interest in this, not a family member, none of his family members were injured, none of his family members were charged with this.

 

Then you look at the witness, Mr. Benitez. He’s not really a disinterested third party. Oh, yeah, he’s close, extremely close to the defendant. I wonder.

 

At any rate, as I said earlier, I believe that Officer Fidalgo testified credibly and that each and every element of the two crimes charged, that you will hear from Judge Wertheimer, w[as] satisfied, and I ask that you, after hearing the charge, that you go back into the jury room and you find Jesus Colon guilty of the two charges.

 

At the outset, we note that this issue is raised as plain error as defense counsel raised no objection to the prosecutor’s summation. Therefore, we must determine whether these comments were “of such a nature as to have been clearly capable of producing an unjust result . . . .” R. 2:10-2. Based upon our review of the prosecutor’s entire summation, we discern neither of the improprieties claimed by defendant.

In the first two paragraphs quoted above, the prosecutor drew a distinction between Officer Fidalgo as a disinterested witness, as contrasted with Luis Benitez, who described his relationship with defendant as “like family.” In the third paragraph, the prosecutor briefly alluded to his belief “that Officer Fidalgo testified credibly[,]” and immediately proceeded to advise the jury that, in his view, “each and every element of the two crimes charged . . . w[as] satisfied . . . .”

Under these circumstance, we find defendant’s argument to be without merit. R. 2:11-3(e)(2).

Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.

 

[State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted).]

 

We acknowledge the “long-standing rule” that it is improper for the prosecutor to inform the jury of his personal opinion of a witness’s credibility. State v. Wakefield, 190 N.J. 397, 440 (2007). In evaluating “‘the severity of the misconduct and its prejudicial effect on the defendant’s right to a fair trial[,]‘” we will not deem such prosecutorial misconduct to be grounds for reversal of a criminal conviction “‘unless the conduct was so egregious as to deprive the defendant of a fair trial.’” Id. at 437 (citations omitted).

The trial judge charged the jury immediately following the prosecutor’s summation. Very early in that charge, the judge instructed the jury:

You, and you alone, are the exclusive judges of the evidence, of the weight of the evidence and . . . what the facts are in this case. Regardless of what [c]ounsel said . . . recalling the facts, it’s your recollection of the facts that must guide you in the final analysis as . . . the judges of the facts.

 

Under the circumstance, we conclude that the prosecutor’s brief statements that he “believed[d] Officer Fidalgo testified credibly[,]” and that he “wonder[ed]” about Benitez being “extremely close to the defendant[,]” did not rise to the level of “egregious” conduct sufficient to warrant reversal.

We next consider defendant’s contention that the trial court erred in its charge to the jury on second-degree eluding. Because defendant did not object to this jury instruction at trial, we once again consider his claim under the plain error standard. R. 2:10-2. Under that standard, “[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.” State v. Afanador, 151 N.J. 41, 54 (1997).

Pursuant to N.J.S.A. 2C:29-2(b):

Any person, while operating a motor vehicle on any street or highway in this State . . ., who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury of any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person’s conduct involves a violation of chapter 4 of Title 39 . . . .

 

The trial judge essentially followed the model jury charge for second-degree eluding. Model Jury Charge (Criminal), “Eluding an Officer” (2004). In his initial jury instruction, the judge charged the jury in accordance with the statutory language elevating the offense to second degree if “the flight or attempt to elude created a risk of death or injury to a person.” The judge made no mention of motor vehicle violations at this point.

Following a side bar discussion at the conclusion of the jury charge, the judge delivered the following additional instruction:

I, apparently, omitted a part of the charge on eluding. I want to read it to you now.

 

You may infer a risk of death or injury to any person if a defendant’s conduct in fleeing or attempting to elude the officer involved a violation of motor vehicle laws of the State, and it’s alleged this defendant’s conduct involved speeding, running a red light, etc., etc.

 

Defense counsel accepted this supplemental instruction as “[f]ine.”

We concur with defendant that the trial judge’s failure to charge the elements of the applicable motor vehicle statutes was in error. Under the circumstances of this case, however, we deem such error to be harmless. The evidence clearly established that defendant “created a risk of death or injury” by crashing his vehicle into a utility pole with such force that it sustained “[h]eavy front end damage and . . . fire damage . . . .” The fire department had to be called to open the front door. Officer Fidalgo observed defendant “[l]unged over the middle area between the driver’s seat and passenger’s seat[,]” with his legs “in the driver’s seat.” In addition, Benitez testified that he suffered a leg injury as a result of the crash.

On this record, we consider defendant’s reliance upon State v. Dorko, 298 N.J. Super. 54 (App. Div.), certif. denied, 150 N.J. 28 (1997), to be misplaced. In that case, the defendant’s act of eluding consisted solely of motor vehicle violations such as speeding and running through stop signs and a red light; in addition to eluding, the defendant was charged with reckless driving. Id. at 56.

By contrast here, defendant engaged not only in speeding and running a red light, but in much more serious conduct that caused his vehicle to crash, with resultant injuries to at least one passenger. It is significant that these same facts gave rise to a related charge of second-degree aggravated assault in count two of the indictment, as contrasted with the related reckless driving charge in Dorko.

Applying, as we must, the plain error standard to this argument, we conclude that defendant has failed to demonstrate that the claimed error was “sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336 (1971).

Affirmed.

 

 

April 14, 2009

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Defendant stuck with his plea; Slater factors not in his favor

Posted by whitecollarcrimenews on April 15, 2009

 

STATE OF NEW JERSEY,

 

Plaintiff-Appellant/

Cross-Respondent,

 

v.

 

T.J.,

 

Defendant-Respondent/

Cross-Appellant.

 

____________________________________________________

 

 

Submitted March 17, 2009 – Decided

 

Before Judges Skillman and Graves.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-04-0613.

 

Luis A. Valentin, Monmouth County Prosecutor, attorney for appellant/cross-respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

 

Yvonne Smith Segars, Public Defender, attorney for respondent/cross-appellant (Michael C. Wroblewski, Designated Counsel, on the brief).

 

PER CURIAM

 

On April 4, 1997, defendant was indicted for second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(5)1; third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a); and fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b). On September 2, 1997, defendant pled guilty to third-degree endangering the welfare of a child pursuant to a plea bargain under which the State agreed to dismiss the other charges and recommend a non-custodial probationary sentence “with lifetime ‘Megan’s Law’ Registration.”

The second question on the special plea form for sex offenders signed by defendant at the time of his plea asked:

Do you understand that if you are pleading guilty to a crime of Aggravated Sexual Assault, Sexual Assault, Aggravated Criminal Sexual Contact, Kidnapping pursuant to 2C:13-1, Endangering the Welfare of a Child by engaging in sexual conduct which would impair or debauch the morals or a child pursuant to 2C:24-4, Luring or an attempt to commit any such offense. The Court in addition to any sentence authorized by the code will impose a special sentence of community supervision for life?

 

“Yes” is circled in response. The question continued:

And, that any person who violates a condition of special sentence of community supervision is guilty of a crime of the fourth degree?

 

“Yes” is circled in response. Defendant signed this form on September 2, 1997.

In taking defendant’s plea on September 2, 1997, the court had the following colloquy with him:

THE COURT: You’ve signed the form regarding the Megan’s Law requirements including the fact that you must register and continue to register should you move.

 

Do you understand that?

 

THE DEFENDANT: Yes, Your Honor.

 

The court did not provide defendant with any additional explanation of the requirements of Megan’s Law.

On October 31, 1997, the trial court sentenced defendant in conformity with the plea bargain to a one-year probationary term. The judgment of conviction also required defendant “to register for Megan’s Law within ten days.” However, the judgment omitted the statutory requirement that defendant was subject to community supervision for life.

On May 27, 1999, defendant was charged with failure to register as a convicted sex offender, contrary to N.J.S.A. 2C:7-2(a). Defendant pled guilty to this charge on October 4, 1999, and was sentenced to two years probation on November 19, 1999.

In a letter dated February 19, 2003, the State Parole Board advised the trial court that defendant’s sentence did not provide for community supervision for life, as mandated by N.J.S.A. 2C:43-6.4. The Monmouth County Prosecutor submitted a similar letter on February 26, 2003, which asked the court to amend defendant’s judgment of conviction “to include a special sentence of community supervision for life.”

On September 19, 2003, the trial court amended the judgment of conviction to include the requirement of “a special sentence of community supervision for life, pursuant to N.J.S.A. 2C:43-6.4.” On October 24, 2003, a parole officer presented defendant with a form entitled “Community Supervision For Life” that explained the requirements of such supervision, and defendant signed the form. Defendant did not appeal from the amended judgment of conviction that added the requirement of community supervision for life.

On October 4, 2006, defendant filed a pro se petition for post-conviction relief, which was based on the amendment of the judgment of conviction to include the requirement of community supervision for life. Defendant alleged that he was unaware of the requirements of community supervision for life until the amended judgment was entered. He further alleged that he was “facing numerous ‘community supervision for life’ violations” and that his parole officer had advised him he could not be around his children.

On October 22, 2007, defendant filed a motion to withdraw his 1997 and 1999 guilty pleas on the ground that he had not been advised by either defense counsel or the trial court of the requirement of community supervision for life “and what this meant” when he pled guilty. In his certification in support of the motion, defendant stated:

Had I known about the community supervision for life requirement, I would not have pled guilty to the third degree endangering the welfare of a child charge in Indictment No. 97-04-0613 or the subsequent failure to register charge.

 

The trial court conducted a hearing on defendant’s petition for post-conviction relief and motion to withdraw his guilty plea at which both defendant and his counsel testified that they had not discussed the requirements of community supervision for life at the time of the plea. Defendant argued that the amendment of his judgment of conviction to include the requirement of community supervision for life violated his right to Due Process and therefore should be stricken from the judgment. Alternatively, defendant argued that he should be allowed to withdraw his guilty plea on the ground that he had not been informed of the consequences of community supervision for life.

The trial court concluded in an oral opinion that the amendment of defendant’s judgment of conviction to include the statutorily mandated supervision for life did not violate Due Process. However, the court granted defendant’s motion to withdraw his guilty plea on the ground that he was not informed by his attorney or the court of the consequences of community supervision for life. The court entered an order on April 7, 2008, memorializing these rulings. The court subsequently denied the State’s motion for reconsideration.

Both the State and defendant filed motions for leave to appeal from the April 7, 2008 order, which we granted.

 

I.

 

 

We reject the arguments presented on defendant’s appeal and affirm the part of the April 7, 2008 order that upheld the amendment of the judgment of conviction to include the provision for community supervision for life substantially for the reasons set forth in the trial court’s April 4, 2008 oral opinion. The trial court’s decision regarding this issue is directly supported by State v. Horton, 331 N.J. Super. 92, 97-102 (App. Div. 2000), which held that the requirement of community supervision for life is a mandatory component of a sentence for any of the offenses enumerated in N.J.S.A. 2C:43-6.4 and therefore the omission of this requirement constitutes an illegal sentence, which may be corrected at any time. The only distinction between Horton and this case is that the judgment of conviction in Horton was corrected to add the requirement of community supervision for life eighteen months after sentencing while defendant’s judgment of conviction was not amended until six years after sentencing. However, a court’s obligation to correct an illegal sentence continues even though a substantial period of time has elapsed. See, e.g., State v. Baker, 270 N.J. Super. 55, 61-63, 71-77 (App. Div.), aff’d o.b., 138 N.J. 89 (1994) (more than four years); see also State v. Williams, 342 N.J. Super. 83, 92-93 (App. Div.), certif. denied, 70 N.J. 207 (2001). We also agree with the trial court’s conclusion that even though defendant should have been given notice and an opportunity to be heard before the judgment of conviction was amended to add the requirement of community supervision for life, this procedural defect does not affect the validity of the amended judgment because community supervision for life was a statutorily mandated component of defendant’s sentence, which the judgment could be amended to reflect at any time.

II.

During the pendency of this appeal, our Supreme Court decided State v. Slater, ___ N.J. ___ (2009), which set forth standards for a trial court to apply in considering a 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.” Id. at ___ (slip op. at 13). All four of these factors must be considered in ruling upon a motion to withdraw a plea. Ibid. “No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief.” Id. at ___ (slip op. at 20).

Based on the four factors set forth in Slater, we conclude that the trial court erred in granting defendant’s motion to withdraw his guilty plea.

Defendant does not claim that he is innocent of the charge to which he pled guilty. In fact, defendant gave a written statement to the police before his plea in which he admitted having sexual intercourse with the victim ten times over a period of a year-and-a-half knowing that she was underage. Thus, the first Slater factor weighs against allowing defendant to withdraw his guilty plea.

Defendant pled guilty pursuant to a highly favorable plea bargain under which the State agreed to dismiss the charge of second-degree sexual assault and recommend a probationary sentence that would not require defendant to serve any period of incarceration. Thus, the third Slater factor also weighs against allowing defendant to withdraw his guilty plea.

Defendant did not file a motion to withdraw his guilty plea until approximately ten years after entry of the judgment of conviction. Moreover, defense counsel indicated at argument on the motion that he had spoken with the victim and that she indicated she would not be a cooperative witness if the case were now tried. Therefore, it appears the State would be unfairly prejudiced if it were required to prosecute the charges against defendant more than ten years after occurrence of the acts upon which they were based and that the fourth Slater factor also weighs against allowing defendant to withdraw his guilty plea.

The only one of the Slater factors that provides any support for defendant’s motion is the second factor — “the nature and strength of defendant’s reasons for plea withdrawal” — specifically, the failure of defense counsel and the trial court to explain the consequences of community supervision for life. As to this factor, defendant was required to show that his “lack of knowledge of” the community supervision for life component of his sentence mandated by N.J.S.A. 2C:43-6.4 “was material to [his] decision to plead guilty and prejudiced defendant.” State v. Johnson, 182 N.J. 232, 241 (2005). A guilty plea “will not be vacated if knowledge of the consequences [that were not explained to the defendant] would not have made any difference in the defendant’s decision to plead.” Id. at 242 (quoting State v. Howard, 110 N.J. 113, 123 (1988)).

Defendant’s testimony as to whether he would have pled guilty if he had been aware of the requirement of community supervision for life was equivocal:

Q. [T.J.], you indicated that if you had gone to jail it all would have been over for you. Are you aware that even if you went to jail you’d still be on community supervision for life? You can’t get rid of the community supervision for life with a sex offense?

 

A. Technically if you say it like that, yeah. When I say that I mean that all this time later for me to still be doing this, I wouldn’t even have opened a can of worms at all if they wouldn’t have changed my life. That parole thing was totally changed me to a knock on the door and all of a sudden now you have to report to us. You can’t live with your children. I had to pay $250 for an evaluation. That was supposed to be for Avenel. I don’t know how they even found the –

 

Q. So, are you saying you would have chosen going to trial, potentially going to jail at that time?

 

A. Of course, I’d never want to go to jail. But there may have been another option. Okay, if you’re doing this, Mr. Jenkins, you’re going to be Megan’s Law. You’re going to have parole and you may not be with your children. Okay, well what other options do we have?

 

Is there a lesser charge maybe I can maybe try to go for? It was never offered. But is it possible?

 

Q. [T.J.], if there was no other options. You either went to trial or you took a plea. Are you saying you would not have taken this plea? You would have gone to trial and risk going to jail for five to ten years? If that’s what you’re saying.

 

. . . .

 

A. It’s a yes.

 

THE COURT: All right. Okay and he has difficulty answering that question. The record should reflect that.

 

The trial court’s findings regarding this issue were also equivocal:

Defendant must then show that knowledge of these consequences would have impacted his decision to plead guilty. Now, this particular case is complicated by the fact that this defendant got a great plea agreement in this particular case.

 

. . . .

 

And I realize that the State presents a situation where you know, this defendant was not prejudiced. Anybody in their right mind would have accepted this plea, because of the circumstances of this particular case. And so therefore, if he was aware of this back in 1997, he would have accepted the plea at any rate.

 

While the defendant was really hesitant about whether he would be or would not in his answers to this particular Court because it is a tough issue. But I think the knowledge of that certainly would have impacted on his decision one way or another. And it’s hard, some six to ten years later to judge what the impact would be.

 

Moreover, at the points in defendant’s testimony when he seemed to indicate that he would not have pled guilty if he had been aware of the requirement of community supervision for life, the only adverse consequence of such supervision to which he referred was that it was preventing him from residing with his children. However, any condition of parole, including the parole to which a person sentenced to community supervision for life is subjected, must be reasonable, and administrative remedies are available to challenge any unreasonable condition of parole. See Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 241-42 (2008); Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 187-89 (App. Div. 2004). A parole officer could not reasonably bar defendant from residing with his children simply because he had consensual sex more than ten years ago with a thirteen or fourteen year old female (the indictment alleges that the victim was “age 13 thru 14″ when the offense was committed). Therefore, unless there are other circumstances in defendant’s record that are not revealed by the record before us, it would appear that the primary alleged consequence of parole supervision for life to which defendant objects could be remedied administratively.2

Consequently, we conclude that application of the Slater factors, including the absence of a colorable claim of innocence, the existence of a plea bargain that was highly favorable to defendant, the prejudice to the State if it were now required to try the charges against defendant, and defendant’s questionable stated reason for seeking to withdraw his plea, requires a reversal of the order allowing defendant to withdraw his guilty plea.

Accordingly, we affirm the part of the April 7, 2008 order that upheld the amendment of the judgment to add the requirement of community supervision for life. We reverse the part that granted defendant’s motion to withdraw his guilty plea.

 

1 Currently N.J.S.A. 2C:14-2(c)(4) (as amended by L. 1997,

c. 194, § 1).

2 We note that N.J.A.C. 10A:71-6.11(c)(3) provides that a person convicted of a sexual offense that includes as part of the sentence community supervision for life is prohibited from residing with any minor without the prior approval of the assigned parole officer. However, N.J.A.C. 10A:71-6.11(d)(2) provides an exception from this prohibition “[w]hen the minor is in the physical presence of his or her parent.” We do not know whether this exception was intended to apply to a parent’s residence with his or her own children, but even if N.J.A.C. 10A:71-6.11(d)(2) is inapplicable, a prohibition against a parent residing with his own children would not be reasonable in the kind of circumstances presented by this case.

 

April 14, 2009

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Court failed to properly advise defendant of right to counsel

Posted by whitecollarcrimenews on April 15, 2009

 

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

JAY DIMATTEO,

 

Defendant-Appellant.

_________________________

 

 

Argued January 20, 2009 — Decided

 

Before Judges Reisner, Sapp-Peterson and Alvarez.

 

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4649.

 

Steven Stadtmauer argued the cause for appellant (Celentano, Stadtmauer & Walentowicz, L.L.P., attorneys; Mr. Stadtmauer, on the brief).

 

Steven E. Braun, Chief Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Braun, of counsel and on the brief).

 

PER CURIAM

Defendant, Jay DiMatteo, appeals his conviction of the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(c). Defendant was sentenced in municipal court to thirty days jail time, placed on probation with conditions for a year, fined $500, and required to pay mandatory costs and penalties. On his appeal to the Law Division, pursuant to Rule 3:23, defendant was again found guilty following a trial de novo. The sentence was modified to credit for fifteen days served, a year’s probation with conditions, a reduced fine of $250, and costs. We reverse and remand for a new trial.

Defendant was charged by Kelly Miller with forwarding unwanted flowers on two occasions and sending unwanted love letters. Kelly alleged that defendant was essentially stalking her, and that his conduct constituted harassment within the meaning of the statute. On August 16, 2006, a first appearance was conducted on the complaint.

At a first appearance in municipal court, pursuant to Rule 7:3-2, a defendant is to be informed of the pending charges, provided with a copy of the complaint if not previously supplied, and advised of the right to remain silent. “The judge shall [also] inform the defendant of the right to retain counsel or, if indigent, to have counsel assigned.” R. 7:3-2. The rule goes on to state that the defendant shall be “specifically asked whether legal representation is desired,” and his or her response is to be recorded on the complaint. The rule is basically identical to the procedure employed on a first appearance on indictable matters. Pressler, Current N.J. Court Rules, comment on R. 7:3-2 (2009).

Defendant, who appeared pro se, entered into the following colloquy with the court:

[THE COURT]: All right. Are you going to get an attorney?

 

[DEFENDANT]: No. I’m not going to get an attorney. I could, but I’m going to handle the case myself.

 

[THE COURT]: I would — — I want to just go on the record that this is a serious charge and depending on the outcome of this charge you could go to jail.

 

[DEFENDANT]: I understand that, Your Honor.

 

[THE COURT]: So, you know, in the middle of this you can’t just say, well, I don’t like the way this is going — — and I haven’t prejudged this in any way. Don’t get me wrong. But, you know, you’re not an attorney.

 

[DEFENDANT]: I — — well, I’ll leave that up to me. If I come — — if I come with an attorney, I’ll have [an] attorney. If not, I’ll — — I won’t have an attorney.

 

[THE COURT]: All right. I’m going to give you — —

 

[COMPLAINANT]: Your Honor, can I say — —

 

[THE COURT]: I’m sorry.

 

[COMPLAINANT]: Can I say something?

 

[THE COURT]: Sure.

 

[COMPLAINANT]: This has been going on since 2002. I have postponement after postponements. I mean — —

 

[THE COURT]: I don’t doubt you at all. I don’t doubt you at all, but this is — —

 

[COMPLAINANT]: I mean, I feel like — —

 

[DEFENDANT]: Your Honor.

 

[COMPLAINANT]: — — I’m going in circles here.

 

[THE COURT]: You’re not. This is the first time this is before me. Okay. You have one adjournment.

 

[DEFENDANT]: Okay.

 

[THE COURT]: And I’m setting this down for a special session, where this case is going to be resolved in one session, and that will be the end of it. There will be no further adjournments. Okay.

 

. . . .

 

[DEFENDANT]: Your Honor, if I come with an attorney, I’ll have any attorney. If I don’t have an attorney — but I believe I will win the case.

 

. . . .

 

[DEFENDANT]: If I have an attorney. Like I said, if I have an attorney, I’ll have him. If don’t have it — —

 

[THE COURT]: Right. That’s up to you. Okay.

 

[DEFENDANT]: Okay. Thank you very much, Your Honor.

 

It is reversible error to fail to advise a defendant adequately of his right to counsel because incarceration is a consequence of magnitude. State v. Gonzalez, 114 N.J. 592, 608 (1989). A petty disorderly persons offense is punishable by up to thirty days in county jail, in addition to a $500 fine. N.J.S.A. 2C:43-8 and 2C:43-3(d). Although defendant was told that he had the right to return to court for trial with an attorney, and that he faced the possibility of incarceration, neither his right to counsel nor the possibility of jail time was explained.

Defendant was not told that if he could not afford an attorney, one would be assigned to represent him. Similarly, it was not explained to him that the possible incarceration term was up to thirty days. In fact, defendant was jailed for fifteen days by the municipal court immediately upon the sentence being pronounced until the Law Division stayed the sentence pending the trial de novo in that court. Without this information, defendant could not have made a knowing, intelligent and voluntary waiver of his right to counsel.

Defendant contends that the municipal court’s failure to advise him adequately of his right to counsel is error. This omission, however, was not raised before the Law Division judge. Accordingly, we consider the argument pursuant to the plain error doctrine. R. 2:10-2. Only where an error is “clearly capable of producing an unjust result” must the judgment be reversed. Ibid. The possibility of an unjust result arising from the error must be “sufficient to raise a reasonable doubt as to whether the error led the [fact-finder] to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336 (1971).

We are satisfied that an error capable of producing an unjust result occurred when defendant waived his Sixth Amendment right to counsel prior to the municipal court trial. See State v. Abbondanzo, 201 N.J. Super. 181, 184 (App. Div. 1985). He did not know that he had the right to assigned counsel. He did not know the extent of the jail time that could be imposed after conviction. Because he was not fully informed of his options or the potential consequences of a conviction, he simply did not make a knowing and intelligent waiver.

As “a matter of simple justice,” a defendant must have the opportunity to engage counsel prior to a proceeding that may result in a consequence of magnitude, such as incarceration. Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971). The oversight is particularly problematic in this case where the record discloses that defendant was experiencing employment difficulties and may have been eligible for assigned counsel. Furthermore, our review of the record also indicates that defendant may have some significant mental health issues, as established by the nature of the charges and his conduct during the first appearance and the municipal court trial. It is noteworthy that both trial judges made a mental health evaluation, as well as compliance with any recommended treatment, a condition of probation.

A “searching and painstaking inquiry” is required before a waiver of counsel occurs “when a pro se defendant may be jailed following conviction.” Abbondanzo, supra, 201 N.J. Super. at 184-85. The municipal court judge’s failure to conduct any meaningful inquiry, much less a “searching and painstaking inquiry,” into defendant’s waiver of counsel is an error clearly capable of producing an unjust result. Id. at 184. Accordingly, the conviction is vacated, and the matter is remanded for a new trial.

Reversed and remanded.

April 14, 2009

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No brain fingerprinting permitted in New Jersey courts

Posted by whitecollarcrimenews on April 15, 2009

 STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

ELLIOTT BATES,

 

Defendant-Appellant.

________________________________________________________________

 

 

Before Judges Lisa and Sapp-Peterson.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 34-2007.

 

Elliott Bates, appellant pro se.

 

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Timothy P. Ward, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

 

Defendant, Elliott Bates, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of violating N.J.S.A. 39:5B-32 for having loose decking on a trailer being pulled by his dump truck, for which he was fined $157 and ordered to pay $33 in court costs.1 Defendant argues on appeal that his conviction should be overturned because he was wrongfully precluded from presenting evidence of brain fingerprinting. We reject defendant’s argument and affirm.

On May 29, 2007, defendant was driving his vehicle, a tri-axel tandem dump truck, which was pulling a trailer. Defendant came upon a commercial vehicle diesel emissions test site. As required, he pulled into the site and submitted to an inspection of his vehicle. New Jersey State Trooper Terrence Hendricks observed “numerous pieces of trailer decking that were loose, on top of his trailer.” These pieces of decking were not secured by bolts or otherwise. “Pieces of it were broken off and just laying on the deck.”

On cross-examination, Hendricks acknowledged that he pulled some of the loose boards off of the trailer. He denied, however, that he broke any of the boards off. When asked why he moved the boards, Hendricks said: “Because they appeared loose, Your Honor. There were boards that were on top of the decking itself. There were boards that were in place that were loose that were not attached at any point.” Hendricks expressly denied “that some of [the boards] were fixed firmly, and that by [his] jiggling them [he] intentionally loosened them.”

In the municipal court trial, defendant proffered evidence of brain fingerprinting. He requested that he and Hendricks be submitted to brain fingerprint testing, which would prove who was telling the truth. The municipal judge rejected the proffer. He found “no basis in law” for the administration of such tests or admissibility of any such test results in evidence. The municipal judge credited Hendricks’ testimony and found, “contrary to what the defendant says, that there were boards loose.” He thus found him guilty and imposed a $157 fine and $33 in court costs.

N.J.S.A. 39:5B-32 directs the Superintendent of the State Police to adopt, pursuant to the Administrative Procedure Act, rules and regulations concerning the qualifications of interstate motor carrier operators and vehicles, to substantially conform to the requirements established by the federal Surface Transportation Assistance Act of 1982 and applicable federal regulations. The rules have been promulgated at N.J.A.C. 13:60-2.1. Included among the adopted federal regulations is Part 393, Parts and Accessories Necessary for Safe Operation. N.J.A.C. 13:60-2.1(b)4. Pursuant to 40 CFR 393.104, “[v]ehicle structures, floors, walls, decks, tiedown anchor points, headerboards, bulkheads, stakes, posts, and assorted mounting pockets used to contain or secure articles of cargo must be strong enough to meet the performance criteria of § 393.102, with no damaged or weakened components. . . .”

Defendant does not dispute that his vehicle is subject to these regulations. In the Law Division, Judge Ostrer made new and independent findings and rendered a decision de novo, based upon the municipal court record, although giving due, but not controlling, deference to the municipal judge’s opportunity to view the witnesses and evaluate their credibility. State v. Locurto, 157 N.J. 463, 472-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). Judge Ostrer credited Hendricks’ testimony “that he found some boards loose and when he applied some pressure, he was able to lift them out.” The judge further found that even if some of the boards “weren’t actually bouncing around totally unsecured, they were loose enough to be dislodged,” which would constitute a violation of the regulations.

Upon review by this court, we must determine whether the record contains sufficient credible evidence to support the findings made by the Law Division judge. Johnson, supra, 42 N.J. at 162. We have no hesitancy in concluding that the record amply supports Judge Ostrer’s factual findings.

Judge Ostrer further found no error by the municipal judge in excluding evidence of brain fingerprinting. He found “no acceptance in the law for such proof, nor did the defendant present cognizable expert opinion before the trial court that such evidence would be admissible.”

Brain fingerprinting purports to measure certain patterns of brain activity to determine whether the person recognizes or does not recognize offered information, thus revealing what the person has stored in his or her brain. See Harrington v. State, 659 N.W.2d 509, 516 n.6 (Iowa 2003). We agree with Judge Ostrer that no authority exists in this jurisdiction to establish the reliability of such testing, and the results of any such testing would not be admissible in evidence. And, defendant did not proffer any competent expert opinion to establish the reliability of brain fingerprinting evidence. In any event, Hendricks could not be compelled to submit to any such testing. Defendant’s proffer in this regard was properly rejected.

Affirmed.

1 Defendant was also charged with a second violation of N.J.S.A. 39:5B-32 for failure to demonstrate proof of federally-mandated annual inspection. Although he was found guilty of that charge in the municipal court, on de novo review, the Law Division judge acquitted him of that charge.

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Timing of motion to withdraw plea is key

Posted by whitecollarcrimenews on April 15, 2009

 

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

JON C. CLARK,

 

Defendant-Appellant.

__________________________________

 

 

Submitted February 24, 2009 – Decided

 

Before Judges Wefing and Parker.

 

On appeal from Superior Court of New Jersey,

Law Division, Sussex County, No. 04-09-0287-I.

 

Yvonne Smith Segars, Public Defender, attorney

for appellant (Abby P. Schwartz, Assistant Deputy

Public Defender, of counsel and on the brief).

 

Anne Milgram, Attorney General, attorney for

respondent (Leslie-Ann M. Justus, Deputy

Attorney General, of counsel and on the brief).

 

PER CURIAM

 

Defendant appeals from his conviction for possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), for which he was sentenced to three years in prison. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was charged under Indictment No. 04-09-0287 with one count of possession of a controlled dangerous substance, heroin, in violation of N.J.S.A. 2C:35-10(a)(1). He was also charged under a separate indictment with two counts of bail jumping, in violation of N.J.S.A. 2C:29-7. Finally, he was charged with driving while intoxicated in violation of N.J.S.A. 39:4-50 and also received several other motor vehicle summonses. The only matter before us on appeal is his conviction for possession, which was the result of defendant pleading guilty after the trial court denied his motion to suppress.

Defendant makes two contentions on appeal:

POINT I THE SEARCH OF DEFENDANT’S TRUCK WAS NOT SUBJECT TO ANY WARRANT EXCEPTION. CONSEQUENTLY, THE SEARCH OF THE TRUCK AND THE SEIZURE OF THE FOLD OF HEROIN VIOLATED DEFENDANT’S FOURTH AMENDMENT RIGHTS AND THE EVIDENCE SEIZED MUST BE SUPPRESSED.

 

POINT II THE COURT ERRED IN DENYING DEFENDANT’S MOTION [TO] WITHDRAW HIS GUILTY PLEA.

 

Defendant filed his motion to suppress and, in accordance with Rule 3:5-7(b), the State filed an opposing brief, which set forth its version of the applicable facts in the following manner:

At approximately 12:13 p.m. on January 11, 2004, Sparta Police Officer Jeffrey Mase was traveling southbound on Route 15. He observed what appeared to be a disabled vehicle on the shoulder underneath the Route 517 bypass. He saw two people sitting inside the cab of the pickup [] truck and a man outside of it near the passenger window. He turned around to assist and when he approached the vehicle, he saw the defendant trying to secure a piece of plastic over the passenger window.

 

The defendant approached the officer and in doing so he was shuffling his feet and staggering as he walked. He explained that the window had been broken last night in Elizabeth and he had stopped to re-secure it because it was ripping. His speech was slurred and he nervously rambled about why he went to Elizabeth to pick up his daughter who had a drug problem and needed to get away from the bad influences of that area. He pointed out the woman in the cab as his daughter and the male passenger as his son.

 

Officer Mase noted that the defendant’s pupils were constricted and his eyelids were droopy. These are signs of narcotic ingestion or intoxication based upon his training and experience. The defendant was swaying side to side. He explained that he really didn’t stay overnight in Elizabeth and that none of the numerous tools in the bed of his pickup truck had been stolen. He went on to explain that he had not reported the broken window to local police, and then began to ramble about his daughter’s boyfriend having done some serious prison time.

 

He provided his credentials and volunteered that his license would come back as suspended but that it really wasn’t suspended.

 

Backup arrived and went to check the status of the defendant’s license. In the meantime, Officer Mase told the defendant that he suspected the defendant of drug use because of his pupils, speech and his swaying and staggering. The defendant denied drug use and indicated that he had just gotten out of detox. Corporal Takacs confirmed that the license was suspended. Officer Mase asked the defendant when he last used drugs and the defendant indicated that he used cocaine maybe a week ago.

 

Mase went to check with the passengers to see if either of them had a valid license. They both appeared nervous and the woman was singing and turning around and bouncing on her seat. She indicated that her license was suspended and the boy indicated that he did not have a license. She provided the name of “Kelly Clark,” with a birthdate of July 11, 1979, and indicated that she did not have a middle name. She explained that her father, brother and she had gone to Elizabeth that morning in order to get money to repair the broken window, that they had left Greeley, Pennsylvania that morning and had not been in Elizabeth the night before. She went on to explain that she was responsible for the broken window.

 

A check of the name provided by the woman came back as not on file. In response, Mase turned to the defendant who informed him that his daughter’s name was “Connie E. Clark” with a date of birth of November 9, 1980. Mase inquired why the woman would give him the name “Kelly” and the defendant responded that she had been in a lot of trouble with drugs and probably had warrants.

 

Mase once again asked the woman her name and she supplied the same name and date of birth as before. She then started to reach down toward the floor under the steering wheel and grab for a pair of gloves among the many items strewn over the floor of the cab. Mase told her to let the gloves alone and to step out of the truck. She continued to insist that she had given her correct name and Mase observed that she had pinpoint pupils and her eyelids were droopy, and she had a bloody scab on her face.

 

The son, Paul, appeared very nervous, wouldn’t look at Officer Mase and had been moving clothing around inside the cab of the truck. Mase began to speak to him and noticed a waxed paper fold, with a green stamp on it, on the floor of the cab underneath the steering wheel. Mase knew from his training and experience that the waxed paper fold was consistent with being a bag of heroin. He seized it and directed Paul to get out of the truck.

 

Mase, Sgt. Spidaletto and Officer Rubino searched the truck. Mase found a used hypodermic needle on the passenger side floor and multiple other used bags of heroin on the floor of the truck. Spidaletto recovered a pipe packed with burned marijuana in a cigarette pack on the dashboard, another syringe under the seat and another bag of heroin under the seat. Rubino recovered a cap for a needle and a bag of heroin from the defendant’s coat located behind the seat. A drug recognition expert examined the defendant and gave an opinion that the defendant was under the influence of a narcotic analgesic and depressant. The defendant was directed to provide a urine sample which tested positive for codeine, morphine and 06-monoacetylmorphine, which is a metabolite of heroin. A sample of one of the two full bags of heroin seized from the vehicle tested positive for the presence of heroin.

 

Defendant did not oppose that factual recitation and agreed that there was no dispute as to the material facts of what had occurred. In that posture, defendant’s motion to suppress was presented to the trial court without a testimonial hearing. State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div.), certif. denied, 144 N.J. 589 (1996).

We are satisfied the trial court correctly denied defendant’s motion. Police Officer Mase was confronted with a driver who exhibited symptoms of being under the influence of a substance and unable to safely drive the vehicle. In addition, a credentials check indicated that defendant’s driver’s license had been suspended. It is immaterial whether defendant told the officer, as he now insists he did, that he did not need assistance. Officer Mase could not simply leave the scene and permit defendant to drive away.

Officer Mase properly went to speak to the other two occupants of the truck to determine whether either of them could be entrusted to safely drive the truck. It was apparent to him that defendant’s daughter was in no shape to drive and his son did not have a license. It was during his conversation with these two individuals that he noticed on the floor of the truck a waxed paper fold which his experience told him was often used to contain a controlled dangerous substance.

The cases which defendant cites to us provide no authority for reversing the order denying his motion to suppress. The issue is not whether Officer Mase had reasonable grounds to stop defendant. Defendant was already stopped and appeared to be in the process of making a repair. Officer Mase made an entirely appropriate field inquiry to determine whether everything was all right and whether further assistance was needed. Defendant’s impaired condition, and his suspended license, were ample justification for all that followed.

Several months after defendant pled guilty to possession of a controlled dangerous substance, he filed a motion to withdraw his guilty plea. He contends on appeal that the trial court erred when it denied his motion.

The Supreme Court has recently had occasion to consider the standards a trial court should employ when it is called upon to decide a motion to withdraw a plea of guilty. State v. Slater, ___ N.J. ___ (2009). In that case, the defendant pled guilty to second-degree possession of cocaine with intent to distribute after the trial court denied his motion to suppress. Id. at ___ (slip op. at 3-4). Twelve days after pleading guilty, the defendant filed a hand-written motion seeking to withdraw his guilty plea. Id. at ___ (slip op. at 5). The trial court denied his motion, saying that a change of mind was not a sufficient basis to withdraw a guilty plea. It proceeded to sentence defendant to five years in prison, in accordance with the bargain which had been negotiated. Id. at ___ (slip op. at 6). While this court affirmed the trial court’s denial of the motion to withdraw the defendant’s guilty plea, the Supreme Court reversed.

According to the Court, decision of a motion to withdraw a guilty plea requires analysis of four factors:

We hold that trial judges are to consider and balance four factors in evaluating motions 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.

 

[Id. at ___ (slip op. at 13).]

 

Here, defendant told the trial court that he wanted to withdraw his guilty plea both because he was not guilty (he maintained the drugs found in the truck belonged to his daughter and not to him) and because his attorney at the time had pressured him to plead guilty, telling him he “wasn’t going to go anywhere” if he insisted on a trial.

Those assertions, however, stood in stark contrast to defendant’s statements under oath at the time he pled guilty. And, as opposed to the defendant in Slater, there is no indication in this record that at the time defendant pled guilty he had any unhappiness with his then-attorney. Further, at the time defendant entered this guilty plea, he also had charges of bail-jumping that were pending against him. Defendant clearly stated during the plea colloquy that it was his decision to plead guilty only to the charge of possession and to contest the bail-jumping charges.1 This strongly rebuts defendant’s assertion that his will was overborne.

The Court in Slater noted that defendant had acted swiftly in seeking to withdraw his guilty plea. He filed his motion twelve days after pleading guilty and, according to the Court, insisted as part of the pre-sentence report that he was not guilty and was seeking to withdraw his guilty plea. Id. at ___ (slip op. at 20-21). Here, defendant waited for months before acting, and his pre-sentence report contains not a hint of dissatisfaction with the bargain.

The Court in Slater also noted that a trial “court’s ruling may rest, of course, on its view of defendant’s demeanor and candor at both the plea proceeding and any later hearing on the withdrawal motion.” Id. at ___ (slip op. at 17). Here, defendant’s daughter, who was arrested with defendant, unfortunately died while her matter was pending. In deciding defendant’s motion to withdraw his guilty plea, the trial court made extensive observations about the effect upon defendant of his daughter’s untimely death and its belief that defendant’s motion was the product of his profound distress at his daughter’s death, rather than a reasoned analysis.
Although the trial court did not have the benefit of the Court’s opinion in Slater at the time it denied defendant’s motion, its opinion, in our judgment, can fairly be read to conclude that defendant had not put forth either a colorable claim of innocence or strong reasons for seeking to withdraw his guilty plea. Deciding such a motion rests ultimately in the trial court’s sound discretion. Id. at ___ (slip op. at 10) (“[A] plea may only be set aside in the exercise of the court’s discretion.”). We perceive no abuse of the court’s discretion here.

Affirmed.

 

1 Defendant later entered a plea of guilty under that separate indictment. He did not seek to withdraw that guilty plea.

April 14, 2009

 

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