STATE OF NEW JERSEY v. MATTHEW LAPADULA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0431-05T10431-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW LAPADULA,

Defendant-Appellant.

 

Submitted April 5, 2006 - Decided April 20, 2006

 
Before Judges Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-10-2474-I, 04-10-2475-I, 04-10-2476-I.

Jabin & Fleming, attorneys for appellant (Christian P. Fleming, of counsel and on the brief).

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

PER CURIAM

Defendant was indicted in Monmouth County, charged with the following: second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one), and first-degree armed robbery, N.J.S.A. 2C:15-1 (count two) (indictment No. 04-10-2474); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one), and first-degree armed robbery, N.J.S.A. 2C:15-1 (count two) (indictment No. 04-10-2475); third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count one), third-degree burglary, N.J.S.A. 2C:18-2 (count two), and fourth-degree theft of movable property, N.J.S.A. 2C:20-3a (count three) (indictment No. 04-10-2476).

In return for the State's agreement to recommend an aggregate sentence of eleven years in State prison subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on April 25, 2005, defendant entered a guilty plea to one count of first-degree armed robbery (indictment No. 04-10-2474); one count of second-degree armed robbery, amended from first-degree armed robbery (indictment No. 04-10-2475); and one count of third-degree conspiracy (indictment No. 04-10-2476). The court imposed a ten-year term on the first-degree armed robbery charge, a concurrent five-year term on the second-degree armed robbery charge, and a concurrent three-year term on the third-degree conspiracy charge.

On appeal, the sole issue raised by defendant is that the trial court erred by denying his motion to withdraw his guilty plea. What happened is as follows.

At the sentencing hearing on August 26, 2005, defendant's counsel made the following request to the court.

I spoke with my client this morning, Judge. My client wishes to withdraw his guilty plea to these offenses. So I would ask Your Honor for a brief adjournment to get the transcript of his plea and for me to file a formal motion to withdraw the plea.

We only got the presentence investigation today and there [are] some statements by my client in there that he did not commit these offenses. So that's why we would need more time to file this motion, Your Honor.

The judge responded:

Well, this is a case that I am very familiar with. . . .

I'm aware that [defendant] gave a statement to the police in regard to his involvement in the most serious of the offense[s], the armed robbery. So my recollection and I have in my notes as to the taking of the plea, where he gives his factual basis and he says that he and Mr. Brazilian planned to take money from Brian Wolf. He took him out for a ride and there was a demand for money and a knife was shown. He was part of it.

In regard to the other charge of robbery, second degree, he advised as to his involvement. There is no question that he was part of the scheme to rob somebody by the name of Paul Suppeloff (phonetic).

And in regard to the conspiracy, the third degree offense, which was 04-10-2476, he gave a statement as to he and Mr. Brazilian searching for cars to break into.

So, I have no difficulty with my having accepted his pleas of guilty and I do have difficulty with his request to withdraw that plea at this time. So the application to withdraw is denied.

The burden lies on a defendant to show why a guilty plea should be withdrawn. State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974). Where a plea is part of a knowing and voluntary plea bargain, a defendant's "burden of presenting a plausible basis for his request to withdraw . . . is heavier." Id. at 18. A trial judge has considerable discretion in deciding such a motion, and should take into account not only defendant's arguments but also the interest of the State in the plea's finality. State v. Luckey, 366 N.J. Super. 79, 87 (App. Div. 2004). A voluntary guilty plea should not generally be vacated absent "some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). Nevertheless, a motion to withdraw a plea entered before sentencing where a defendant asserts his innocence should be liberally granted. State v. Deutsch, 34 N.J. 190, 198 (1961).

Here, defense counsel gave a plausible reason for requesting an opportunity to adjourn sentencing to file a formal motion to withdraw the plea. He indicated that his client had made statements in the presentence report, which indicated to counsel that defendant did not commit the offenses. While we understand the trial judge was familiar with defendant's plea, under the circumstances, we find it to have been an abuse of discretion not to grant the adjournment and allow defendant an opportunity to file his motion.

Consequently, we remand to the trial court to provide defendant with an opportunity to move to withdraw his guilty plea. The application should be considered as if it were made prior to sentencing. We render no opinion on the substantive merits of defendant's application.

Reversed and remanded. We do not retain jurisdiction.

 

We have not been provided with a copy of the transcript of defendant's guilty plea.

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A-0431-05T1

April 20, 2006