STATE OF NEW JERSEY v. VICTOR BELARISTA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4481-04T34481-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR BELARISTA,

Defendant-Appellant.

_____________________________

 

Submitted February 7, 2006 - Decided March 21, 2006

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, A-329-12-98.

Ronald Aronds, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Victor Belarista appeals from an order denying his petition for post-conviction relief (PCR) entered on May 23, 2005. We affirm.

On December 18, 1998, defendant entered a plea of guilty to an accusation charging third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). The conviction related to an incident on June 22, 1998, when defendant, then twenty years old, met M.N.D., a thirteen-year-old girl, and her friend, E.M.S., a fourteen-year-old girl, at Great Adventure in Jackson. Defendant took the girls to his home in Sayreville, where they spent the night. During the night defendant engaged in consensual sexual activity contact with both girls which included digital penetration. The following morning defendant took the girls to a nearby restaurant where they made arrangements for their parents to pick them up at a rest area on the New Jersey Turnpike. When defendant arrived with the girls, he was arrested by a New Jersey state trooper who accompanied the parents. Defendant told police he believed the girls were fifteen.

On December 18, 1998, the defendant appeared before Judge Barnett Hoffman. He waived his right of indictment and entered a negotiated plea to both counts of the accusation in return for a non-custodial plea recommendation by the prosecutor. During the plea hearing Judge Hoffman carefully questioned defendant to ascertain that he entered into the plea agreement voluntarily, that he understood its terms and consequences and that he was satisfied with the services of his attorney. Judge Hoffman also explained the registration requirements of Megan's Law, and defendant responded that he understood the requirements. Judge Hoffman then asked the defendant if he had any questions about his plea and its consequences, which resulted in the following colloquy:

THE DEFENDANT: I was wondering if there is any way to get out of that Megan's Law.

THE COURT: No. No. I mean, I shouldn't answer like that. You can go to trial, be found not guilty. You don't have to comply with it. But for the crime you are pleading guilty to, its mandatory. There are approximately 5,500 to 6,000 people now registered under Megan's Law. So, you are not alone. You still want to go ahead with this?

THE DEFENDANT: Yea. Yes.

THE COURT: You're sure? Because once you leave here today, I'm not going to let you take your plea back except upon exceptional circumstances ... so I'm going to give you a chance. Now, this is your last chance. If you don't want to plead guilty, you (sic) got to tell me now.

THE DEFENDANT: I would want to plead not guilty; but I don't think there is a good chance of me going to trial. But I'll plead guilty.

THE COURT: Mr. Belarista, you're a young man. Life is full of choices. You have a choice to go to trial. And, in which case, you could exercise a right to a jury trial, you have a right to a jury trial. You have a right to confront these young girls. You have a right to remain silent. And you could win. On the other hand, if you lose, you could wind up doing ten years on each of these ...

THE DEFENDANT: I'll plead guilty.

THE COURT: I don't want to try to appear that I'm trying to force you into this. Whether I give a trial to you or somebody else doesn't make any difference to me ... I don't want to scare you. But these are the facts of life ... what do you want to do?

THE DEFENDANT: Plead guilty.

THE COURT: You sure?

THE DEFENDANT: Yea.

On June 14, 1999, Judge Hoffman adhered to the plea bargain and placed the defendant on probation for a period of eighteen months conditioned on his continuation of mental health counseling until discharged. He also imposed the special condition that defendant must comply with Megan's Law, including community supervision for life.

On December 23, 2004, five and one-half years after his sentence, defendant filed a "Verified Petition for Post-Conviction Relief Nunc Pro Tunc Pursuant to New Jersey Rules of Court 3:22-1 et seq." He alleged in the petition that he received ineffective assistance of counsel in that he was pressured by his lawyers to plead guilty, given misinformation as to the constraints of lifetime probation and notification under Megan's Law, and frightened by the judge into pleading guilty when he did not wish to do so.

Oral argument was heard on the PCR application of February 25, 2005 and April 13, 2005, following which Judge Philip L. Paley denied the PCR petition.

On appeal defendant makes the following argument for our consideration:

THE JUDGE PRESIDING AT THE POST CONVICTION RELIEF HEARING ERRED IN USING HIS PERSONAL BELIEFS IN RULING AGAINST THE PETITIONER INSTEAD OF ALLOWING THE PETITIONER TO EXERCISE HIS RIGHT TO A TRIAL ON THE CHARGES AGAINST HIM.

The argument put forth by defendant is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We make only the following comments.

Petitions for post-conviction relief are required to be filed within five years after judgment is rendered absent excusable neglect. R. 3:22-12(a). No excusable neglect was shown by this defendant other than the bald statement that he was unaware of the five-year limitation, which does not constitute grounds to extend the five-year bar. See generally State v. Murray, 162 N.J. 240, 249-51 (2000); State v. Afandor, 151 N.J. 41, 52 (1997); State v. McQuaid, 147 N.J. 464, 485 (1997); State v. Mitchell, 126 N.J. 565, 575 (1992).

Moreover, there is no basis to permit defendant's withdrawal of his guilty plea. Judge Hoffman carefully reviewed the charges and the rights of the defendant to a jury trial prior to accepting the plea of guilty after satisfying himself that the defendant entered the plea voluntarily and with knowledge of its contents and consequences. The fact that defendant feels hampered by the restrictions of Megan's Law is no basis upon which to withdraw his plea of guilty five years after his sentence.

Affirmed.

 

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A-4481-04T3

March 21, 2006