STATE OF NEW JERSEY v. GIOVANNY GARCIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1537-05T51537-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GIOVANNY GARCIA,

Defendant-Appellant.

________________________________

 

Submitted: August 16, 2006 - Decided August 22, 2006

Before Judges Kestin and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Morris County, 03-03-00392-I.

Paul W. Bergrin, attorney for appellant (Annette Verdesco, on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was charged in two Morris County indictments alleging crimes committed on the same day, November 22, 2002. Indictment no. 03-02-178 charged defendant with second-degree robbery, N.J.S.A. 2C:15-1a(2), and three third-degree crimes: burglary, N.J.S.A. 2C:18-2a; criminal restraint, N.J.S.A. 2C:13-2a; and terroristic threat, N.J.S.A. 2C:12-3b. Indictment no. 03-03-392 charged defendant with third-degree attempted burglary, N.J.S.A. 2C:5-1a(1) and 2C:18-2a(1); and with fourth-degree criminal mischief, N.J.S.A. 2C:17-3.

Defendant pled guilty to all charges. There was no plea agreement. The record discloses that, at the time of the plea, other charges were also pending against defendant in Union County in respect of which he was in custody there. By the time of sentencing on the Morris County convictions, the Union County charges had been resolved.

At sentencing, the trial court merged the criminal mischief conviction into the attempted burglary conviction. For the robbery conviction, the court imposed a prison term of seven years, eighty-five percent without parole and with three years of post-release parole supervision pursuant to N.J.S.A. 2C:43-7.2. On each of the remaining convictions, a concurrent term of imprisonment for four years was ordered. The sentencing particulars reflected credit for time spent in custody. Assessments, fees and penalties mandated by statute were also ordered.

On appeal, defendant raises a single issue, arguing that "[his] plea was not entered knowingly or voluntarily" and that a reversal of the convictions is therefore required. His arguments emphasize that, on the date the offenses were committed, defendant had been consuming alcohol and Xanax, and that, at the time of his plea, his memory of the events was less than clear or precise.

The record discloses, however, that, at the plea proceeding, defendant recalled enough to acknowledge his involvement in, and responsibility for, the events that had transpired. As the trial court judge stated at sentencing, defendant had admitted to the facts and acknowledged his criminal responsibility even though he did "not particularly recollect[] everything that occurred."

Although defendant now argues that, because of his state of awareness on the date of the crimes, the plea he entered cannot be deemed to have been voluntarily and knowingly given, defendant never moved before the trial court for leave to vacate his guilty plea on that ground, or because of inadequate representation by trial counsel for failing to develop a diminished responsibility defense, or on other bases. Also, notwithstanding defendant's affirmative response at the plea proceeding to the question whether he was U.S. citizen, he now argues, with nothing further in support, that his disclosure in his pre-sentencing interview that he was born in Italy tends to contradict that statement.

It is clear from the record that defendant participated knowingly and voluntarily both in electing to plead guilty to all the crimes charged and at the sentencing proceeding. His previous rejection of a plea agreement calling for a five-year term with eighty-five percent parole ineligibility also disclosed in the record gives us no reason to assume the contrary. To the extent defendant now asserts that he was not fully aware of all that he needed to know, including "all of the ramifications of a plea of guilty," his right to raise issues that require further factual development, i.e., on a post-conviction relief application, remains undiminished. See State v. Preciose, 129 N.J. 451, 459-61 (1992).

 
Affirmed.

(continued)

(continued)

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A-1537-05T5

 

August 22, 2006