STATE OF NEW JERSEY v. PHILIP J. SUBHAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1384-04T41384-04T4

STATE OF NEW JERSEY

Plaintiff-Respondent,

v.

PHILIP J. SUBHAN,

Defendant-Appellant.

_______________________________

 

Submitted May 8, 2006 - Decided June 12, 2006

Before Judges Cuff, Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Mercer County, Docket No. 03-05-0075.

Yvonne Smith Segars, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, Of counsel and on the brief.)

Zulima V. Farber, Attorney General of New Jersey,

attorney for respondent (H. John Witman III, Deputy Attorney General, Of counsel and on the brief.)

PER CURIAM

Following a jury trial, defendant Philip Subhan was convicted of two counts of second-degree theft by unlawful taking, N.J.S.A. 2C:2-6 (counts one and four); two counts of second-degree misapplication of entrusted property, N.J.S.A. 2C:21-15 and N.J.S.A. 2C:2-6 (counts two and five); two counts of second-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25(b) and N.J.S.A. 2C:2-6 (counts three and six); two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (counts seven and ten); and two counts of third-degree misapplication of entrusted property, N.J.S.A. 2C:21-15 (counts eight and nine). For sentencing purposes, the count two conviction was merged with the count one theft conviction, for which defendant received a seven-year term and a consecutive six-year term on count three. The judge imposed an identically structured sentence on the count four, five and six convictions, and made that sentence concurrent to the sentence on count one. The judge then merged the conviction on count eight with that on count seven, for which she sentenced defendant to a four-year term concurrent to the sentences on counts one and four. On count nine, defendant was sentenced to a three-year term, consecutive to the sentence on count seven, and concurrent to the sentence on count one. Lastly, defendant was sentenced to a three-year term on count ten, concurrent to the sentence on count one. His aggregate prison term was thirteen years, and there was no minimum period of parole ineligibility imposed. Appropriate fees and penalties were also imposed as was an order of restitution. Defendant appeals, and we affirm.

This criminal episode involved four separate financial schemes perpetrated by defendant and Mowat that divested Sandra Kelly, then an 88-year old legally blind widow, of about $400,000 for the personal benefit of, among others, defendant. The first scheme, carried out in 1998 and encompassed in counts one, two and three, involved the theft of $220,000 from Kelly. A later scheme, described in counts four, five and six, involved a $110,000 theft from Kelly. There was a subsequent theft from Kelly identified in counts seven and eight. Lastly, there was a misapplication of funds from Michael Malloy and yet another theft from Kelly to cover the misapplication of Malloy's funds, described in counts nine and ten.

More specifically, according to the State's proofs, defendant and Mowat were business associates since late 1987, providing financial services to clients as either agents, employees or franchisees of American Express Financial Services (American Express). Defendant held a bachelor's degree in marketing and finance, and was a certified financial planner, a certified life insurance underwriter, and a stockbroker with Series 7 and Series 63 credentials. Mowat, who was considerably older than defendant, had been in the financial services business much longer and, as a result, defendant serviced many of Mowat's clients.

Kelly was one such client. At 88 years of age, Kelly lived alone in a studio apartment in Hightstown, was childless, a widow and, as a result of macular degeneration, blind, with some residual peripheral eyesight. She also had substantial assets, nearly $1 million. She had invested a large portion of these funds in annuities, life insurance policies and other investments with American Express. In fact, in April 1998, Kelly's investments with American Express totaled $796,496.95. By then, however, Kelly could neither prepare nor sign her own checks, and Mowat had assumed increasing fiduciary responsibility over her financial affairs, including weekly bookkeeping, estate planning and asset investment, all mainly performed by defendant.

For instance, on his weekly visits to Kelly, defendant would assist her with reading mail and American Express financial statements that contained funds and assets managed by defendant. Defendant would write the checks for Kelly, and using a rubber stamp, either she or defendant would sign the checks. Sometime in April 1998, Mowat and defendant liquidated a substantial portion of Kelly's American Express investments, inclusive of life insurance policies and annuities, and deposited the proceeds, totaling $329,436.82, in her First Union checking account. As indicated on the end-of-the-month statement, this transaction left a balance of $417,444.30 in American Express investments and resulted in $332,969.62 in First Union deposits.

In May 1998, at Kelly's apartment, Mowat and defendant prepared a check for $220,000 drawn on Kelly's First Union checking account. Defendant made the check payable to Mowat's wife, Margaret Mowat, and wrote "gift" on the memo line. Kelly believed that due to tax concerns, Margaret was serving as a proxy in a stock transaction. Kelly did not intend to "gift" Margaret $220,000; nor did she believe she was actually giving the money to Margaret.

Despite Kelly's belief to the contrary, the Margaret Mowat check was deposited in a joint account held by Victor and Margaret Mowat, and the funds then disbursed in order to open two Charles Schwab investment accounts. One of the accounts held $110,000, and named Margaret as owner and defendant as beneficiary, while the other account, holding $100,000, named Margaret as the owner and the Mowat daughter as the beneficiary. By year's end, the assets in the account that named defendant as beneficiary were transferred to another account naming defendant as owner. These funds were eventually utilized to satisfy expenses defendant incurred in his pizza restaurant business. A second scheme occurred two years later. On May 5, 2000, defendant either wrote or received the benefit of a $110,000 check drawn on Kelly's First Union checking account, payable to First Union. Kelly was identified as the "remitter" on that check. The check was covered in a similar manner as the previous $220,000 check, namely by liquidation of a portion of Kelly's American Express assets. Using the $110,000 check that was payable to First Union, defendant obtained a First Union cashier's check payable to Charles Schwab. Defendant deposited the cashier's check in his Schwab account and wrote a check that drew on the Schwab account for the initial capitalization of the Trenton Lightning, an arena football team. Defendant himself denied that any client invested in the Lightning, and Kelly never intended to invest, nor approved any investment, in this endeavor.

That same month, May 2000, defendant also wrote two checks on Kelly's First Union account, payable to Mowat, Subhan, and Associates. One check, in the amount of $20,000, bore the notation "for income portfolio", while another check, in the amount of $1300, bore the notation "annual fees." Yet, had the checks actually been intended for investment or annual fees, they would have been made payable to American Express, as prescribed by protocol. Both checks, however, were negotiated by deposit into the Mowat, Subhan partnership account, and the funds were distributed as partnership funds.

Finally, in April 2000, defendant, by his own admission, deposited into a Lightning account $10,000 in cash entrusted to him by another client, Michael Malloy, for investment purposes only. When Malloy complained that he did not receive a confirmation for investment, defendant fabricated a letter from a fictitious committee named "Insurance and Annuity Development Team", which assured Malloy that his investment was protected. To cover his misapplication of Malloy's funds, in December 2000, defendant wrote a check on Kelly's First Union account, payable to American Express Financial Services, with Malloy's account number on the memo line. However, Kelly had never given money to Malloy, either directly or on his behalf to another individual.

Although defendant denied any criminal intent, choosing instead to blame Mowat, he did admit to mistakes and lapses in judgment. As to the last financial scheme, he insisted Kelly was a good friend who wanted to help him out with Malloy. The jury, crediting the State's account, convicted defendant of all counts charged.

On appeal, defendant raises the following issues:

I. THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTIONS TO EXCLUDE THE DEPOSITION TESTIMONY OF SANDRA KELLY AND TO REDEPOSE SANDRA KELLY WAS ERROR, AND DENIED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO CONFRONT AND CROSS-EXAMINE HIS ACCUSER.

II. DEFENDANT'S COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL CHARACTER WITNESSES AS EVIDENCE OF DEFENDANT'S INNOCENCE DURING THE DEFENSE'S CASE-IN-CHIEF AT THE TRIAL.

III. ALTERNATIVELY, THE TRIAL COURT ERRED IN REJECTING DEFENDANT'S PROFFERED GUILTY PLEA (NOT RAISED BELOW).

IV. THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

A. DEFENDANT'S SENTENCE SHOULD BE OVERTURNED AND REMANDED BECAUSE OF THE GREAT DISPARITYY BETWEEN HIS SENTENCE AND THAT OF HIS CO-DEFENDANT, VICTOR MOWAT.

B. THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE MITIGATING FACTORS OF A RISK THAT THE DEFENDANT'S CONDUCT WAS THE RESULT OF CIRCUMSTANCES UNLIKELY TO RECUR, THE DEFENDANT'S CHARACTER INDICATES THAT HE IS UNLIKELY TO COMMIT ANOTHER OFFENSE, AND THAT THE HE IS PARTICULARLY LIKELY TO RESPOND AFFIMATIVELY TO PROBATIONARY TREATMENT UNDER 2C:44-1b(8), (9) AND (10).

C. THE TRIAL COURT ERRED IN FINDING THAT THE AGGRAVATING FACTORS OUTWEIGHED THE MITIGATING FACTORS, THUS FAILING TO OVERCOME THE PRESUMPTION OF INCARCERATION.

We address the issues in the order raised.

(i)

Defendant first contends that he was denied the right to confrontation by the admission of Kelly's videotaped deposition at trial. We conclude the deposition was taken in accordance with Rule 3:13-2, and defendant's Sixth Amendment rights were fully preserved.

By way of background, on July 11, 2003, the State moved to take the videotaped trial deposition of Kelly pursuant to Rule 3:13-2. In support of its application, the State relied on a medical evaluation dated June 13, 2003, by Kelly's treating physician, Dr. Ramon Zavala, who reported that Kelly "is a ninety-three year old frail elderly woman, with multiple health problems", including visual impairment caused by age related macular degeneration; hypertension; "severe" lower extremity edema; congestive heart failure; hypothyroidism; mild chronic renal insufficiency; anemia; and depression. She had been then recently admitted to the hospital for "acute decompensation of her congestive heart failure secondary to paroxysmal atrial fibrillation (very fast and irregular cardiac arrhythmia) and an uncontrolled hypertension." Dr. Zavala further opined that Kelly's "fragile equilibrium" could "be easily broken by any physical or psychological stress", which, in turn would result in "unpredictable and devastating consequences." He concluded that Kelly could not withstand an in-court appearance without suffering ill-fated consequences.

On November 17, 2003, without objection, the trial court granted the State's application and ordered that the videotape trial deposition be taken at Kelly's residence on December 5, 2003. On that date, the trial judge presided over Kelly's entire videotaped deposition. The prosecutor, defense counsel and defendant all attended the deposition, and defense counsel was afforded full opportunity to cross-examine the witness. Defendant was in face-to-face confrontation with Kelly the entire time and counsel cross-examined Kelly at length.

Shortly before commencement of trial, defense counsel formally moved to compel Kelly's live testimony even though, as noted by the trial judge, the State's earlier Rule 3:13-2 application was uncontested. At this time, however, defense counsel sought a medical examination of Kelly by either a court-appointed doctor or a defense doctor to be paid by the court. Although the court denied the request, it suggested defendant might "want to have the underlying reasons reviewed and considered by a physician" which the record does not indicate ever occurred. Nevertheless, despite the absence of an earlier objection, the court required of the State additional medical proof of Kelly's physical incapacity before allowing her videotaped deposition to be used at trial. Consequently, the State supplied this supplemental medical proof on its February 20, 2004 motion to use Kelly's videotaped deposition in lieu of live testimony at trial in the form of a medical report from Dr. Abellana. That report noted that Kelly suffered from arteriosclerotic heart disease and chronic congestive heart failure, and became short of breath with minimal exertion; that she was legally blind because of macular degeneration; that she had urinary incontinence, aggravated by the use of Lasix for congestive heart failure; that she received assistance with daily activities of living; that the clinic nurse delivered medications daily to Kelly's apartment; and that she left her apartment only for doctors' appointments at the clinic and only when accompanied by an aide. Dr. Abellana "advise[d] against Mrs. Kelly traveling outside of [the Meadow Lakes residential] facility because of her medical problems." In another certification, Mary Stansky, who was married to Kelly's nephew, confirmed that Kelly had not left the facility since 2001 except for hospitalization in the winter of 2002-2003.

On the eve of trial on February 23, 2004, defense counsel again demanded an independent medical examination and, for the first time, asserted the right to both cross-examine Kelly's examining physicians and to re-depose Kelly. The court rejected these requests and granted the State's motion to use Kelly's videotaped deposition at trial, reasoning:

[Kelly's] trip and appearance at the courthouse particularly given her blindness, fragile medical condition, and the fact that she has not left Meadow Lakes since 2001 except for a period of hospitalization, would obviously be expected to be far more taxing [than] the conditions of the deposition.

The court is sensitive to the preference for face-to-face confrontation. However, the deposition provided in the presence of both defendants,[] the ability to consult with and advise their attorneys during the deposition and the opportunity to fully crossexamine Ms. Kelly. It was recorded by a court stenographer and professionally video taped.

The Court also notes that during her testimony Ms. Kelly described how she came to know and do business with two defendants and testified to the fact that she did not authorize payment to [Mr. Mowat's] wife.

The heart of the State's case will no doubt be financial documents. The facts here are in [contrast to] [State v.]Benitez [ 360 N.J. Super. 108 (App. Div. 2001),] where the victim was the sole witness to a robbery.

The Court concludes that the physicians' reports and Ms. Stansky's certification established that Ms. Kelly's health is sufficiently fragile to conclude that she is physically incapable of testifying. A trip to the courthouse and testimony would be far more physically taxing than her pattern of life over the past several years.

Under all the circumstances, it would be inappropriate to put her a risk of a serious cardiac episode which the Court finds very risky given the information regarding her medical condition as reported by her physician.

We are satisfied that the court's decision to allow the use of Kelly's videotaped deposition at trial satisfied the requirements of both Rule 3:13-2 and the Sixth Amendment's Confrontation Clause.

"The right of an accused to be confronted by the witnesses against him is protected by the Sixth Amendment to the United States Constitution and by the Constitution of New Jersey." State v. Nutter, 258 N.J. Super. 41, 53 (App. Div. 1992); State v. Washington, 202 N.J. Super. 187, 191 (App. Div. 1985). "The Sixth Amendment provides two types of protection for a criminal defendant: 'the right physically to face those who testify against him, and the right to conduct cross-examination.'" Nutter, supra, 258 N.J. Super. at 53 (quoting Coy v. Iowa, 487 U.S. 1012, 1017, 108 S. Ct. 2798, 2801, 101 L. Ed. 2d 857, 864 (1988)). "[T]he United States Supreme Court thereby distinguishes between the desirability, expressed in terms of 'preference,' of face-to-face courtroom confrontation and the 'secured' right of cross-examination." Washington, supra, 202 N.J. Super. at 191 (quoting Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 2537, 65 L. Ed. 2d 597, 606 (1980)). "This alone suggests that the confrontation guaranteed by the clause is not necessarily one in a courtroom." Ibid.

"Although the constitutional right to confrontation is firmly entrenched in American jurisprudence, the right is not absolute." State v. Benitez, 360 N.J. Super. 101, 114 (App. Div. 2003) (citing Maryland v. Craig, 497 U.S. 836, 844, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666, 677 (1990)). It "is subject to certain exceptions of consequence." Ibid. One such exception is carved out in Rule 3:13-2(c), which allows use of videotaped depositions at a criminal trial under certain limited circumstances. Id. at 116; Washington, supra, 202 N.J. Super. at 193.

To be sure, we also are acutely aware that "the right of confrontation . . . is not something to be disregarded or lightly measured." Id. at 194. "For that reason . . . before a deposition videotape is admitted in evidence the State must bear a heavy burden of demonstrating to the trial judge that the witness in question is literally unavailable." Ibid. On that score, we "have upheld the use of deposition testimony in criminal cases only on rare occasions where the deposition was truly necessary." Benitez, supra, 360 N.J. Super. at 114; see Pressler, Current N.J. Court Rules, comment 1 on R. 3:13-2 (2003) (the use of deposition testimony in a criminal case "'should be tightly limited to those situations where it is truly necessary'" (quoting Report of the Supreme Court Comm. on Criminal Practice, 118 N.J.L.J. 139 (1983)); see State v. Harris, 263 N.J. Super. 418, 421 (Law Div. 1993) ("[E]xceptional circumstances" must "exist before a [videotaped] deposition in a criminal case may be taken.").

Rule 3:13-2, governing use of videotaped deposition in lieu of live testimony, is consistent with the law set forth by the United States Supreme Court. See Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004) ("Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination."). Videotaped depositions are apt when "it appears to the judge . . . that a material witness is likely to be unable to testify at trial because of death or physical or mental incapacity . . . ." R. 3:13-2(a). For the court to grant a motion allowing a videotaped deposition, there must be "a showing that such action is necessary to prevent manifest injustice . . . ." Ibid. "The requisite finding of necessity must of course be a case-specific one . . . ." Maryland v. Craig, 497 U.S. 836, 855, 110 S. Ct. 3157, 3169, 111 L. Ed. 2d 666, 685 (1990).

This case-specific analysis applies when the finding of necessity hinges upon the health of the witness. Benitez, supra, 360 N.J. Super. at 117. "When the government is claiming witness unavailability due to illness, the specific inquiry must focus on both the severity and duration of the illness." Stoner v. Sowders, 997 F.2d 209, 212 (6th Cir. 1993). "The court must inquire as to the specific symptoms of the illness to determine what tasks the patient is able to perform, and the court must determine whether there is the probability that the illness will last long enough 'so that, with proper regard to the importance of the testimony, the trial cannot be postponed.'" Id. at 212-13 (quoting Burns v. Clusen, 798 F.2d 931, 937-38 (7th Cir. 1986)). Compare Benitez, supra, 360 N.J. Super. at 117 (explaining witness' advanced age, physical dependence on a walker and remote history of heart attacks did not suffice to prove witness suffered a "physical or mental incapacity", which would permit videotaped testimony in lieu of live testimony) with State v. Rodriquez, 264 N.J. Super. 261, 271 (App. Div. 1993) (explaining that videotaped deposition was admissible in lieu of testimony because witness suffered a mild heart attack and was hospitalized for a minor stroke shortly after his direct testimony and before defense could cross-examine), aff'd o.b., 135 N.J. 3 (1994).

After a showing of necessity, the court is required to conduct the videotaped deposition "before the judge" at a location "convenient to all the parties." R. 3:13-2(b). "All parties and counsel . . . have a right to be present at the deposition", and the "[e]xamination, cross-examination and determination of admissibility of evidence[] shall proceed in the same manner as at trial." Ibid. The videotaped deposition is subject to the rules of evidence as if "the witness were then present and testifying." R. 3:13-2(c). As an additional safeguard, once the deposition is taken, the court is still required to find "that the circumstances surrounding its taking allowed full preparation and cross-examination by all parties." Ibid. The court is not, however, forced to place the videotaped deposition on the record if it finds the "testimony [to] be unfairly prejudicial to a party," and, as such, the judge can limit its use to either an audiotape or a written transcript that is read to the jury. Ibid.

Finally, regardless of the form the admitted deposition takes, the court is required to "instruct the jury that this procedure is employed for the convenience of the witness and that the jury should draw no inference from its use." R. 3:13-2(d).

Governed by these standards, we conclude that Kelly's videotaped deposition was conducted in conformity with Rule 3:13-2 and defendant's Sixth Amendment rights. Defendant was in face-to-face confrontation with Kelly. His counsel fully cross-examined Kelly, and a trial judge presided over the entire proceeding. The proceeding was reported by a certified court reporter and professionally videotaped. The trial court's initial determination to conduct the deposition was supported by sufficient medical proof of Kelly's physical incapacitation and its final decision to use the videotaped deposition in lieu of live testimony at trial was based on additional corroborative expert evidence. Moreover, the videotaped deposition was redacted to prevent unfairness to defendant, and the jurors were instructed on the proper consideration to give videotaped deposition testimony both before they viewed the tape and in the final jury charge. And lastly, defendant's belated requests for an independent medical examination, cross-examination of Kelly's examining physicians, and re-deposition of Kelly, were grossly out of time and lack a basis in law or fact. As such, they were properly rejected by the trial judge, with whose ultimate determination we are in accord.

(ii)

Defendant next contends defense counsel was ineffective for failing to call character witnesses on his behalf. Inasmuch as this claim involves a matter of trial strategy and necessarily depends on evidence outside the record, it is better suited for post-conviction review. State v. Preciose, 129 N.J. 451, 460 (1992). It, therefore, may not be reasonably raised on this appeal.

(iii)

Defendant argues, in the alternative, and for the first time on appeal, that the trial court erred in rejecting his proffered guilty plea. We disagree.

On February 25, 2004, defendant attempted to enter a guilty plea to count one of the indictment, with the understanding that the State would dismiss counts two through ten and make no recommendation as to the sentencing on count one. At the plea hearing, however, defendant would not admit to possessing the requisite state of mind for theft. Specifically, when asked about Kelly's awareness of the underlying transactions, defendant explained how he was "not sure [Kelly] understood what we were doing." The court, dissatisfied with his answer, probed further:

[D]o you understand that in order for the Court to accept a guilty plea, I have to be satisfied that in fact you are admitting that you committed a criminal act? So I need to know a little bit about what Ms. Kelly's state of mind was and whether or not you took something without her authorization that belonged to her.

However, defendant further hedged, stating "I was unsure it was clear what she was doing at that time. She was giving money to various people. I was not sure if she knew what she was doing in terms of giving money away and who she was giving it to." When the court again inquired if defendant did anything "to contribute to her knowledge", defendant merely replied: "I didn't. It was a discussion that I believe Mr. Mowat and her had ahead of time. I was aware that he had the discussion with her." Dissatisfied with defendant's response and unconvinced the requisite state of mind for the theft offense had been established, the court rejected the plea for want of a factual basis.

"The Court, in its discretion, may refuse to accept a plea of guilty . . . ." R. 3:9-2. "There is, of course, no absolute right to have a guilty plea accepted." Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 498, 30 L. Ed. 2d 427, 433 (1971); State v. Salentre, 275 N.J. Super. 410, 419 (App. Div.), certif. denied, 138 N.J. 269 (1994). To be sure, while the trial court has wide discretion in deciding whether to accept a plea, it must be a "sound discretion." State v. Brockington, 140 N.J. Super. 422, 427 (App. Div.), certif. denied, 71 N.J. 345, cert. denied, 429 U.S. 940, 97 S. Ct. 357, 50 L. Ed. 2d 310 (1976). "Judicial discretion is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). We review a trial court's rejection of a defendant's proffered plea agreement under the "erroneous exercise of judicial discretion" standard. State v. Daniels, 276 N.J. Super. 483, 487 (App. Div. 1994), certif. denied, 139 N.J. 443 (1995).
As codified in Rule 3:9-2, "[i]t is clear that before accepting a guilty plea, the trial court must be satisfied that (1) there is a factual basis for the plea, (2) the plea is made voluntarily, and (3) defendant understands the nature of the charge and the consequences of the plea." State v. Bellamy, 178 N.J. 127, 134 (2003); R. 3:9-2 (the court must find that "there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea").

"A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own." State v. Mitchell, 126 N.J. 565, 577-78 (1992) (citing McCarthy v. United States, 394 U.S. 459, 467, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418, 425-26 (1969); State v. Barboza, 115 N.J. 415, 421, n.1 (1989)). Even though "[a] factual basis is not constitutionally required unless the defendant accompanies the plea with a claim of innocence, id. at 421; Mitchell, supra, 126 N.J. at 577, our court rules require guilty pleas to be factually supported." Barboza, supra, 115 N.J. at 421. New Jersey requires the plea to be factually supported for several reasons. "[I]t is designed to 'protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.'" Ibid. (quoting Fed. R. Crim. Proc. 11(f) advisory committee note (1966 amendment)). Moreover, it "also affords the court an opportunity to observe the conditions under which the plea is made, provides a better record for appellate review if the plea is subsequently challenged, increases the visibility of charge-reduction practices, and aids correctional agencies in the performance of their functions." Ibid.

The trial court must be "satisfied from the lips of the defendant that he committed the acts which constitute the crime." State v. Stefanelli, 78 N.J. 418, 439 (1979) (Schreiber, J., concurring). In other words, "[t]he factual basis for a guilty plea must obviously include defendant's admission of guilt of the crime or the acknowledgement of facts constituting the essential elements of the crime." State v. Sainz, 107 N.J. 283, 293 (1987). "However, the defendant's admission or acknowledgment may be understood in light of all surrounding circumstances." Ibid.

In fact, a court "shall not accept such plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, . . . that there is a factual basis for the plea

. . . ." R. 3:9-2. Also, before the plea is accepted, the court must determine if it was made voluntarily. Ibid. A voluntary plea is made "with an understanding of the nature of the charge and the consequences of the plea"; it is not induced by undisclosed promises or threats. Ibid.

Here, the crime to which defendant was pleading guilty, theft by unlawful taking, requires an intent or purpose to unlawfully deprive another of moveable property. N.J.S.A. 2C:20-3a. At his plea, however, defendant persistently refused to acknowledge the requisite mental state, asserting instead that he only intended the money go to Madge Mowat in accordance with some understanding that Mowat had reached with Kelly. In other words, defendant attributed any culpability to Mowat, repeatedly insisting on his own blamelessness. Under the circumstances, the trial judge properly rejected defendant's guilty plea.

(iv)

Finally, defendant contends his sentence was manifestly excessive. We disagree.

The sentences defendant received for the financial facilitation convictions on counts three and six were each required to be served consecutively to the sentences for the underlying crimes in counts one and two, and counts three and four. N.J.S.A. 2C:21-27c. Moreover, given the presumption of imprisonment applicable to crimes of the second-degree, N.J.S.A. 2C:44-1d; State v. Evers, 175 N.J. 355, 392 (2003), defendant's aggregate thirteen-year term reflects a proper and careful balancing of the aggravating and mitigating factors found applicable by the trial judge, State v. Roth, 95 N.J. 334 (1984), and we, therefore, find no warrant for interference with the exercise of the judge's sound discretion in this instance.

Defendant nevertheless complains of the disparity between his sentence and that of co-defendant Mowat's. Here, Mowat pled guilty to a single second-degree offense, and apparently because of his advanced age and poor health, among other things, he received a sentence of probation and a restitution order of $110,000.

It is true that "there can be no justice without a predictable degree of uniformity in sentencing", State v. Hodge, 95 N.J. 369, 379 (1984), and "grievous inequities in sentences destroy a prisoner's sense of having been justly dealt with, as well as the public's confidence in the even-handed justice of our system." State v. Hicks, 54 N.J. 390, 392 (1969). This is so because "[t]here is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators." State v. Hubbard, 176 N.J. Super. 174, 175 (Resentencing Panel 1980). Accordingly, "[d]isparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232 (1996), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Accordingly, the sentencing court is able to "exercise a broader discretion to obviate excessive disparity." Id. at 233.

That said, in New Jersey, "a sentence of one defendant not otherwise excessive is not erroneous merely because a codefendant's sentence is lighter." Hicks, supra, 54 N.J. at 391; (citing State v. Gentile, 41 N.J. 58 (1963); State v. Tyson, 43 N.J. 411 (1964)). The relevant question, therefore, becomes "whether the disparity is justifiable or unjustifiable." Roach, supra, 146 N.J. at 233. To ascertain this answer, the trial court must first "determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria." Ibid. Then, the court shall "inquire into the basis of the sentences imposed on the other defendant", and "consider the length, terms, and conditions of the sentence imposed on the co-defendant." Ibid. If the court concludes that they are "sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity." Ibid. If the sentencing is based on these additional considerations, the court will have successfully balanced the need "to impose a just sentence on the individual defendant in accordance with the sentencing guidelines" with its "responsibility to achieve uniform sentencing when . . . possible." Id. at 233-34.

Here, defendant and Mowat are not similarly situated. Aside from obvious differences in age and health, most significantly the crimes of which defendant stands convicted are greater in number and severity than the singular offense to which Mowat pled guilty. The sentencing judge herself acknowledged this fact:

I am not immune to the fact, the consideration that your codefendant was sentenced under circumstances under which I found the standard [whether his imprisonment would be a serious injustice that overrides the need for deterrence] to apply. I explained that fully at the time and find no need to go into that at this time. The record will clearly indicate the factors that I considered and the conclusion that I reached. Therefore, the Court is left under the law with a presumption of incarceration.

Under the circumstances, we are satisfied that defendant's sentence is fair and just in all respects.

Affirmed.

 

Defendant was indicted with a co-defendant Victor Mowat in counts one through six. Defendant was indicted alone and without any complicity charge in counts seven through ten. Mowat, who had been a business partner of defendant, pleaded guilty on November 17, 2003, to one count of second-degree misapplication of entrusted property, N.J.S.A. 2C:21-15 and N.J.S.A. 2C:2-6, before defendant was tried.

(continued)

(continued)

7

A-1384-04T4

June 12, 2006