Opinion
DOCKET NO. A-5477-13T3
05-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GIUSEPPE PAPARATTO, Defendant-Appellant.
Michael Critchley argued the cause for appellant (Critchley, Kinum & DeNoia, LLC, attorneys; Mr. Critchley and Christopher L. Fox, on the brief). Andrew Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 06-05-0559. Michael Critchley argued the cause for appellant (Critchley, Kinum & DeNoia, LLC, attorneys; Mr. Critchley and Christopher L. Fox, on the brief). Andrew Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief). PER CURIAM
Defendant Giuseppe Paparatto appeals from the June 27, 2014 order denying his motion to vacate a guilty plea he entered in 2006. Defendant claims he presented a colorable claim of innocence, the motion judge erred in failing to consider his reasons for withdrawing his plea, and the State will not be prejudiced if it had to try the ten-year-old charges. Finding no merit to these arguments, we affirm.
On December 29, 2005, four Roseland Police Department (RPD) officers responded to a Becker Farm Road location to investigate a report of a man who was becoming violent after being accused of stealing a wallet. The officers arrived at the scene within two minutes of the call, and several people directed Officer John Allison to the back of a parking lot. As Allison drove to the rear of the lot, a black SUV came speeding in his direction. The driver, later identified as defendant, jumped a curb to avoid hitting the officer. Allison radioed a description of the SUV and the license plate number to dispatch and pursued the vehicle.
Defendant fled at a high rate of speed without regard to oncoming cars or pedestrians. When he was seemingly blocked by other cars, he jumped another curb and traversed a mud and grass area. Allison could not follow defendant, so he radioed the SUV's location and fellow RPD Officer Luongo radioed back that the vehicle jumped another curb and attempted to climb a grassy hill to avoid him. When the SUV got stuck, Luongo and two other officers approached with guns drawn. Defendant continued his futile attempt to escape, swerving back and forth over the wet grass.
After a struggle, the officers were able to arrest defendant and a passenger, C.E. C.E. produced a crack pipe that she had hidden in her bra, and a bag of cocaine was found under the passenger seat of the SUV. Police also found several cell phones, credit cards, and various forms of identification, some of which had been reported stolen.
After defendant was handcuffed and placed in the back of a police car, he was read Miranda rights and stated that he understood them. Once back at police headquarters, defendant was asked who the crack pipe and the cocaine belonged to. He responded, "[w]ithout hesitation," that the drugs and paraphernalia belonged to him and C.E. "was not involved." Defendant also stated that this was not the first time he had come to Roseland to steal wallets and he had done the same thing in the past. He indicated that two of the IDs found in the SUV were stolen on a prior occasion. Defendant admitted that he had used three bags of cocaine that morning and would soon be sick from the withdrawal.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On May 11, 2006, defendant pled guilty pursuant to a plea agreement to third-degree eluding law enforcement, N.J.S.A. 2C:29-2(b); third-degree burglary, N.J.S.A. 2C:18-2; and third-degree possession of cocaine, N.J.S.A. 2C:35-10. On June 23, 2006, defendant was sentenced. Even though defendant's plea agreement called for a three-year sentence, the judge imposed a term of probation.
Defendant was also convicted of credit card fraud in April 2006 in Bergen County and in May 2006 in Somerset County. In September 2007, defendant was notified that he violated probation. Apparently, he violated probation in the Bergen and Somerset cases as well. On October 12, 2007, defendant was re-sentenced on this matter to 270 days in the Essex County Jail, with a recommendation that his term run concurrently to VOP sentences in Bergen and Somerset Counties.
Those records were not provided to us.
Defendant immigrated to the United States from Italy in 1969 when he was seven years old, but never attained citizenship. He was arrested on an immigration detainer in July 2002, but received a waiver of removal from the Immigration Court in 2003. On April 2, 2010, Immigration and Customs Enforcement issued a second immigration detainer. On August 23, 2012, defendant was found to be in violation of the Immigration and Nationality Act, 8 U.S.C.A. §§ 1101-1537, and the Immigration Court ordered him removed from the United States and permanently barred from reentering the country. Defendant was deported to Italy in September 2012.
Defendant did not appeal his conviction or file a petition for post-conviction relief. Defendant's brief indicates that he filed a motion to withdraw his plea on January 16, 2014. Defendant submitted a certification dated December 2013, maintaining he did not understand that his guilty plea would result in his deportation, and had he known, he would not have pled guilty.
The motion was not included in the record on appeal.
On April 3, 2014, Judge Verna G. Leath heard oral argument on defendant's motion. According to the transcript, defendant's counsel argued that if defendant had known that a conviction would result in his deportation, he would not have pled guilty. Counsel also claimed that defendant has made a colorable claim of innocence, and only a small amount of cocaine was seized.
When the judge noted that defendant had admitted to possessing the drugs, defense counsel explained that defendant was high on cocaine and going through withdrawal at the time of the admission. Noting that the crack pipe was hidden in C.E.'s bra and the drugs were found under her seat, counsel hypothesized that the drugs belonged to C.E. and defendant was stealing wallets so he could buy them from her. Counsel then predicted that a skilled attorney would win a case with these facts "nine out of ten times."
On June 27, 2014, Judge Leath read a decision into the record weighing the four Slater factors. She first found "defendant has not presented . . . potentially plausible facts consistent with a colorable claim of innocence." She then examined defendant's reasons for withdrawing his plea and found nothing in the record to indicate defendant was misinformed as to the consequences of his plea. The judge noted that defendant had been the subject of a deportation proceeding in 2002 and "had reason to know that deportation, based on a conviction, was a distinct possibility."
State v. Slater, 198 N.J. 145 (2009). --------
As to the third factor, the judge noted that defendant pled guilty pursuant to a plea agreement and, therefore, had a heavier burden in seeking to withdraw his plea. Finally, the judge noted that under the fourth Slater factor, the State would suffer prejudice if it had to try the case, as the evidence had probably been destroyed. Based on her finding that defendant had failed to establish the four Slater factors, the judge denied defendant's motion to withdraw his guilty plea.
This appeal followed, wherein defendant raises three points:
I.
MR. PAPARATTO PRESENTED A COLORABLE CLAIM OF INNOCENCE BY SPECIFICALLY POINTING TO PLAUSIBLE FACTS IN THE RECORD THAT PROVIDE A DEFENSE TO THE CONSTRUCTIVE POSSESSION OF CDS CHARGE.
II.
MR. PAPARATTO PRESENTED FORCEFUL, FAIR AND JUST REASONS FOR WITHDRAWING HIS PLEA AND THE TRIAL COURT'S RULING TO THE CONTRARY WAS A CLEAR ERROR OF JUDGMENT.
III.
ALLOWING MR. PAPARATTO TO WITHDRAW HIS PLEA WOULD NOT RESULT IN UNFAIR PREJUDICE TO THE STATE OR AN UNFAIR ADVANTAGE TO MR. PAPARATTO, AND THE TRIAL COURT FAILED TO EVALUATE THIS FACTOR WHEN DECIDING MR. PAPARATTO'S MOTION.
We are not persuaded by any of these arguments, and affirm substantially for the reasons set forth in Judge Leath's cogent and comprehensive decision. We add only the following brief comments.
Absent "an abuse of discretion which renders the lower court's decision clearly erroneous," we must affirm a trial court's decision on a motion to withdraw a guilty plea. State v. Simon, 161 N.J. 416, 444 (1999). In Slater, supra, the Court directed trial judges 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.None of these factors is mandatory, and "if one is missing, that does not automatically disqualify or dictate relief." Id. at 162.
[198 N.J. at 157-58.]
Defendant argues that he has presented a colorable claim of innocence and provided "forceful, fair and just reasons for the withdrawal of his plea," in satisfaction of factors one and two. Although defendant concedes that his plea was the result of a plea bargain, he urges the court to consider the reasoning in State v. Munroe, which gave little weight to the third factor because "the vast majority of criminal cases are resolved through plea bargains." 210 N.J. 429, 443 (2012) (quoting Slater, supra, 198 N.J. at 161).
Finally, defendant contends that the trial court failed to consider the fourth factor, and that a failure to weigh the possible unfair prejudice to the State with the possible unfair advantage to defendant constituted "a clear error of judgment."
As to the first Slater factor, a "colorable claim of innocence is one that rests on 'particular, plausible facts' that, if proven in court, would lead a reasonable factfinder to determine the claim is meritorious." Munroe, supra, 210 N.J. at 442 (quoting Slater, supra, 198 N.J. at 159). "A core concern underlying motions to withdraw guilty pleas is to correct the injustice of depriving innocent people of their liberty." Slater, supra, 198 N.J. at 158. Thus, a defendant must present "specific, credible facts and, where possible, point to facts in the record that buttress [his] claim [of innocence]." Ibid.
The Slater Court made clear that defendant's burden is to "present some plausible basis for his request, and his good faith in asserting a defense on the merits." Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)). Nowhere in defendant's certification does he deny possessing the drugs, or explain why he admitted the drugs were his and told police that C.E. was not involved.
We are satisfied that defendant has failed to assert a colorable claim of innocence; that his motivation to withdraw his plea is not to address the inequity of an unjust conviction, but to allow him an opportunity to petition for reentry into this country; that he pled guilty pursuant to a plea agreement; and that withdrawal would result in unfair prejudice to the State.
Defendant's remaining arguments lack sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION