STATE OF NEW JERSEY v. RAYMOND SIKORSKY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1409-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYMOND SIKORSKY,

Defendant-Appellant.

 

Submitted October 26, 2005 - Decided

Before Judges Conley and Francis.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 03-01-006A.

Raymond Sikorsky, appellant pro se.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Sean Brennan, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Raymond Sikorsky, waived his right to have his case presented to a grand jury, and pled guilty to Accusation 03-01-006 charging second-degree eluding, N.J.S.A. 2C:29-2b (count one); second-degree aggravated assault by eluding, N.J.S.A. 2C:12-1b(6) (counts two, three, and four); and fourth-degree theft, N.J.S.A. 2C:20-3a (count five). An aggregate term of seven years with a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, disqualifier was imposed on the second-degree aggravated assault by eluding convictions. In addition, along with the necessary fines and penalties, restitution of $1,086.50 was imposed, despite a provision in the plea agreement indicating that restitution was "NA" (not applicable). Defendant did not pursue a direct appeal, but subsequently filed a motion to withdraw his plea, contending it was not knowing and voluntary and that the NERA disqualifier was illegal. He appeals the denial of that motion, contending that the plea lacked a factual basis, that the NERA disqualifier was illegal and that restitution was not a condition of the plea. See State v. Smullen, 118 N.J. 408, 417 (1990). We agree as to the latter and remand to vacate restitution. In all other respects, we affirm.

The factual predicates for the plea and convictions are as follows. On July 31, 2002, after stealing a D.V.D. player and a tool set from K-Mart in Howell Township, defendant, who was operating a Budget rental van, knowingly led police on a fifteen-minute pursuit that traversed several towns, involving speeds of eighty-five miles per hour. At one point during the chase, defendant was outside of his vehicle where he was approached and ordered to stop by Lakewood Police Officer Latyshev. Defendant re-entered his vehicle and, while the officer stood next to the open door of the van, backed up in an attempt to get away, striking Latyshev with the door. At another point during the pursuit, defendant's van struck the back of a police vehicle operated by Howell Police Corporal Stout who sustained back injuries as a result. Finally, a private citizen was injured when defendant's van struck his vehicle as they passed each other in opposite directions, injuring the other driver's arm.

As we have said, defendant contends before us that his guilty plea to the aggravated assault charges was unsupported by a factual basis. During the plea hearing, the following colloquy took place between the judge, defendant and the prosecutor:

Q So I need a factual basis for your plea. Now the first count is eluding, which is a second degree crime. And it says that on July 31st, 2002, in a number of municipalities, including Lakewood, Ocean, Howell, Wall, Colts Neck, that you committed the crime of eluding by operating a motor vehicle on a public street. Did you do that?

A Yes, sir.

Q And what kind of car were you operating?

A It was a Budget rental van.

Q . . . And did you know that the police were trying to have you stop?

A Yes.

Q And how did you know that?

A They were behind me and they put their lights on.

Q So that was a sign to you that you should have pulled over?

A Yes.

Q Did you pull over?

A No, I didn't.

Q And how long a chase did you lead these officers on?

A It was a good 15 minutes, at least.

. . . .

Q And how fast were you going?

A Approximately 85 miles an hour.

Q And where were you going 85 miles an hour?

A On Route 195.

. . . .

Q . . . And you knew these were obviously police officers?

A Yes.

. . . .

Q . . . the second count says that on that same date, . . . , you committed the crime of aggravated assault by causing bodily injury to Officer John Leticia (phonetic) while you were knowingly fleeing the officer. Did you do that?

A Yeah. Yes. Yes, I did.

THE COURT: So as I take it, the culpability state is by knowingly fleeing, which is no question you were doing. And then while you're doing that, actually causing injury to another.

[PROSECUTOR]: That's my understanding.

. . . .

THE COURT: No, Tell me how it happened.

[PROSECUTOR]: At several points during this chase, the defendant actually got away from the police. One of those took place near a diner. Officer Leticia found the defendant as he was outside of the van, ordered him to stop. The defendant ran into the van, tried to start it.

Officer Leticia was in the area in between the open door of the van and the side of the van as the defendant backed up, striking him with the door.

BY THE COURT:

Q All right. Do you recall that happening?

A Yes, I do.

Q All right. So you actually recall the officer being struck by the van as you, backing up?

A Yes, Your Honor.

. . . .

Q To get away?

A Yes.

Q To continue your eluding?

A Yes, I did.

THE COURT: All right. Now it also says that a Cpl. Kevin Stout also was involved in this particular incident in the sense that he suffered some injury. And Prosecutor, how was he injured?

[PROSECUTOR]: His vehicle was struck by the defendant's vehicle during one part of the chase. I think that was through Howell, though I'm looking over my notes.

BY THE COURT:

Q Is that true?

A Yes. He was on the side of me and he came to force me off the road. And I hit the brakes and struck the back of his vehicle.

THE COURT: And that officer suffered some injury?

[PROSECUTOR]: Yes. I believe it was strain injuries to his back primarily.

THE COURT: And then there was apparently a civilian that was injured? A Henry West?

[PROSECUTOR]: Yes, sir.

THE COURT: And what happened there?

[PROSECUTOR]: At that point, defendant was coming around a corner. The victim's vehicle was coming in the opposite direction. He had his arm out of the window and the defendant crossed over the line and struck his vehicle, causing some minor injury to his arm.

THE COURT: Do you remember that?

THE DEFENDANT: I remember driving, and I possibly could have done something like that, yes.

THE COURT: So the police reports, what do the police reports say?

[PROSECUTOR] Essentially, that he clipped him as the cars were passing.

THE COURT: You're not disputing that?

THE DEFENDANT: No.

. . . .

Q Well, do you remember the things that we talked about so far?

A Yes, sir.

. . . .

Q But you knew what was going on.

A I knew.

Q All right.

A I was scared.

Q You were scared that you were going to get caught.

A Well, knowing that, you know, I had to, you know - - I knew I was going to be in trouble. I knew that one way or another. But I made it a lot worse for myself by doing what I did.

N.J.S.A. 2C:12-1b(6) states:

A person is guilty of aggravated assault if he [c]auses bodily injury to another person while fleeing or attempting to elude a law enforcement officer in violation of subsection b of N.J.S.[A.] 2C:29-2 . . . a person shall be strictly liable for a violation of this subsection upon proof of a violation of subsection b of N.J.S.[A.] 2C:29-2 . . . which resulted in bodily injury to another person.

"'Bodily injury' means physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a.

Defendant acknowledged that he caused injury to each of the victims during his attempt to evade the police. In this respect, during his plea, he acknowledged the facts contained in the Pre-Sentence Investigation Report, namely that Officer Latyshev sustained minor injuries to his right elbow and lower right leg, Corporal Stout sustained radiating pain down his spine from the base of his skull to his lower back, and the private citizen sustained a bruised arm. On these facts, we conclude there was a sufficient factual basis to support defendant's guilty plea.

Defendant contended below that his plea was not knowing and voluntary. The plea transcript is plainly to the contrary. A guilty plea that is entered voluntarily may not be withdrawn, except pursuant to a trial judge's discretion. Smullen, supra, 118 N.J. at 416 (citing State v. Huntley, 129 N.J. Super. 13, 16 (App. Div.), certif. denied, 66 N.J. 312 (1974)); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). When a plea is entered into pursuant to a plea bargain, the defendant has a heavier burden to present a plausible basis to withdraw his plea. Smullen, supra, 118 N.J. at 416 (citing Huntley, supra, 129 N.J. Super. at 17).

There was no abuse of discretion here on the trial judge's part when he denied defendant's motion. With the advice of counsel, defendant entered into the plea voluntarily and established the requisite factual basis for the offenses for which he plead guilty with an understanding of the consequences. He presented no basis for withdrawing that plea.

Defendant also contends, based on insufficient evidence of injury, that the NERA sentence imposed was illegal. We find no merit in this argument. The trial judge applied the provisions of N.J.S.A. 2C:43-7.2(a), which provides in pertinent part:

[a] court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole.

Subsection (d)(4) expressly includes second-degree aggravated assault under N.J.S.A. 2C:12-1b. A conviction of N.J.S.A. 2C:12-1b(6) is such an aggravated assault. That it requires proof of bodily injury as opposed to serious bodily injury does not remove it from the mandate of N.J.S.A. 2C:43-7.2(a). See State v. Colon, 374 N.J. Super. 199, 222-23 (App. Div. 2005).

 
The convictions and sentence are affirmed in all respects except the imposition of restitution. The matter is remanded for entry of a corrected judgment of conviction and sentence vacating the restitution.

(continued)

(continued)

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A-1409-04T5

November 29, 2005