STATE OF NEW JERSEY v. DONNELL BRANCH

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4798-04T44798-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONNELL BRANCH,

Defendant-Appellant.

_____________________________________

 

Submitted November 9, 2006 - Decided November 28, 2006

Before Judges Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-07-2448.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Leeann Cunningham, Assistant Prosecutor, of counsel and on the brief.)

PER CURIAM

This appeal concerns multiple crimes arising out of three separate theft-related offenses committed in Essex County in October and November 2001. In two separate indictments (No. 03-07-2448 and No. 04-01-0171), defendant Donnell Branch was charged with falsely presenting a check in the name of Eugene Cooper to buy a 1 993 BMW 318 and a 1 998 BMW 528 from Europa Motors; falsely presenting another check in the name of Theodore Ubanwah to buy a 1 998 BMW 740i from Penn Auto Sales; and with forging the endorsements of Carolyn Hix and/or Beth Dental Group to buy a 2000 Mercedes Benz S500 from Penn Auto Sales.

Specifically, in July 2003, defendant was charged in Indictment No. 03-07-2448 with third-degree theft by deception (Counts One, Six, and Nine), contrary to N.J.S.A. 2C:20-4; third-degree forgery (Counts Two and Seven), contrary to N.J.S.A. 2C:21-1a(3); fourth-degree falsifying records (Counts Three, Five and Eleven), contrary to N.J.S.A. 2C:21-17a; fourth-degree forgery (Count Ten), contrary to N.J.S.A. 2C:21-1a(3); second degree impersonating (Count Thirteen), contrary to N.J.S.A. 2C:21-17a; and second-degree theft by deception (Count Fourteen), contrary to N.J.S.A. 2C:20-4.

Defendant moved unsuccessfully to dismiss the indictment on speedy trial grounds, and then entered into a conditional plea bargain. As part of the plea bargain, defendant pled guilty to Counts One, Six and Nine in Indictment No. 03-07-2448, pursuant to the plea agreement calling for a maximum term of imprisonment of five years flat. The State further agreed to dismiss Counts Two, Three, Four, Five, Seven, Eight, Ten, Eleven, Twelve, Thirteen and Fourteen of the Indictment, as well as all four Counts of Indictment No. 04-01-0171. The plea agreement specified that restitution was to be determined by the judge at sentencing and that defendant preserved his right to appeal the court's denial of his pre-trial motion.

At the plea hearing on August 3, 2004, defendant admitted, in pleading guilty to third-degree theft by deception in Count One, that on October 20, 2001, he presented a check in the name of Eugene Cooper to purchase an automobile. In pleading guilty to third-degree theft by deception in Count Six, defendant admitted that on November 8, 2001, he presented a check in the name of Theodore Ubanwah to purchase another automobile. In pleading guilty to Count Nine, charging third-degree theft by deception, defendant admitted he improperly presented a check in an attempt to purchase a third automobile before he was arrested that day. Defendant admitted in all three instances he did not have the right to present the checks.

Defendant was sentenced on Count One of the indictment, with sentences on Counts Six and Nine concurrent with the sentence imposed on Count One. The court also sentenced defendant to pay appropriate fines and penalties, as well as restitution in the amount of $150,000 on Count One.

On appeal, defendant now raisees the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S SPEEDY TRIAL MOTION.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A SIX-YEAR TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

POINT III

IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005). (Not Raised Below).

POINT IV

THE TRIAL COURT IMPROPERLY ORDERED DEFENDANT TO PAY RESTITUTION WITHOUT CONDUCTING THE REQUISITE HEARING TO EVALUATE DEFENDANT'S ABILITY TO MAKE RESTITUTION. (Not Raised Below).

We affirm defendant's conviction and sentence in all but one respect, adding the following comments.

As to the twenty-month gap from defendant's arrest in November 2001 to his indictment in July 2003, we note that his alleged conduct involved at least four separate vehicles, four payees, and two dealerships, factors that would understandably complicate the proofs and witnesses involved. In State v. Aquirre, 287 N.J. Super. 128, 132-33 (App. Div.), certif. denied, 144 N.J. 585 (1996), we noted that in appropriate circumstances it is "perfectly legitimate" for the prosecution to delay an indictment "to gather additional evidence against the accused or to broaden the investigation," and that prosecutors "should not be discouraged from thoroughly investigating possible crimes, particularly those involving multiple participants or multiple transactions." Ibid. See also United States v. Lovasco, 431 U.S. 783, 791, 97 S. Ct. 2044, 2049-50, 52 L. Ed. 2d 752, 759-61 (1977) (holding that delay must be sufficiently prejudicial to warrant relief).

With respect to the subsequent thirteen-month delay from indictment to the scheduled trial date, we note that for at least part of the time at issue, defendant was a fugitive, and that he failed to appear at his initial arraignment in August 2003. The arraignment was rescheduled to February 2004, when defendant was picked up on a bench warrant. Thereafter, defendant filed a motion to dismiss the indictment. Given all these circumstances, the lapse of time until the trial date was justifiable. In addition, defendant alleges no specific prejudice flowing from these delays. See State v. Alexander, 310 N.J. Super. 348, 355 (App. Div.) certif. denied, 156 N.J. 408 (1998) (quoting Aquirre, supra, 287 N.J. Super. at 133) (holding that a defendant must show "actual prejudice, not possible or presumed prejudice," to support a due process claim based on delay). In short, there is no basis to set aside the convictions on speedy trial grounds, because legitimate factors produced the delays in the disposition of his case.

With respect to the guilty pleas, the "touchstone of any guilty plea is that it is voluntarily made by the defendant with an understanding of the nature of the charge as well as the consequences of the plea, and that there is a factual basis to support the plea of guilty for the crime or crimes." State v. Warren, 115 N.J. 433, 442-43 (1989). The "terms of the plea agreement should be meticulously honored by a sentencing judge and a defendant should be accorded his reasonable expectations." State v. Marzolf, 79 N.J. 167, 183 (1979) (quoting State v. Thomas, 61 N.J. 314, 322 (1972)).

The State placed the terms of the plea agreement on the record in great detail. Both the prosecutor and the trial court specified to the defendant that the plea required that he serve a five year flat sentence. The plea bargain saved defendant, who has an extensive juvenile and criminal record, from an aggregate exposure of at least fifteen years. Defendant's claim of excessiveness arising out of the five-year negotiated sentence is not deserving of further comment.

We remand the sentence, however, on constitutional grounds under State v. Natale, 184 N.J. 458, 484, 495-96 (2005). Defendant was sentenced to an additional year above the four- year former presumptive term for a third-degree offense under N.J.S.A. 2C:44-1f(1)(d), and therefore Natale requires a sentencing remand to provide a factual record in addressing the additional one year that was imposed on him.

We do not, however, interfere with the $150,000 in restitution that defendant was ordered to remit. Defendant has a GED degree and was working before his arrest. At the sentencing hearing, he asked the judge to "[g]ive me restitution," a remark that undermines his present contention that the restitution, which we acknowledge is substantial, was inequitable.

We affirm the conviction in all respects. We also affirm the sentence, except with respect to the trial court's imposition of the five-year sentence exceeding the presumptive four-year term, as to which we remand.

 

(continued)

(continued)

7

A-4798-04T4

November 28, 2006

 


Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.