STATE OF NEW JERSEY v. RICHARD M. WINSTOCK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1212-07T41212-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD M. WINSTOCK,

Defendant-Appellant.

________________________________________________________________

 

Argued October 8, 2008 - Decided:

Before Judges Stern and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Indictment No. 05-08-01228.

Patrick P. Toscano, Jr. argued the cause for

appellant.

Robert Lane, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his judgment of conviction, and specifically from the denial of his motion to withdraw his guilty plea. He was sentenced to probation with conditions. Defendant argues that the application to withdraw his guilty plea to one count of maintaining a gambling resort and one count of promoting gambling should have been granted. He contends his motion should have been granted because he "was unaware of all the consequences of his plea," the court erred in finding that withdrawal would prejudice the State, and the defendant didn't merely have a "whimsical change of mind" for making his application. We find no abuse of discretion by the plea judge, and affirm the conviction.

Defendant's pre-sentence motion to withdraw was accompanied by a certification, which provided in part:

a. It was always my impression that if I did not enter a guilty plea, I would serve state prison time, no matter what offense I was convicted of. Since entering the plea, I have been made aware that such is not the case.

b. Prior to entering my plea, I was advised that my three children would be placed in foster care or the care of others if I was sent to prison.

c. The prior administration in the Morris County Prosecutors Office never advised me that attorney Amato Galasso was the target of a grand jury investigation or testified before the grand jury. That transcript was provided to my attorney merely days before my trial date. I never read same. Mr. Galasso apparently forged a signature on a specific document which, if proved at trial, would have cleared some of the defendants, including myself, of at least one of the charges. Further, his testimony was filled with inaccuracies and perjury.

d. All pleas were contingent on all other defendants pleading guilty. In essence, if one defendant did not take the plea, the deal would not have been given to anyone. My wife, Jennifer, was wrongfully made a defendant herein by the previous prosecutors office administration. She is a nurse. As a result of my plea, my job would be lost. Therefore, I relied on the fact that my wife was receiving PTI, and that her nursing license would not be in jeopardy at all, as she would be the sole income producer for likely a large period of time. My wife advised me that when she went down to probation after being accepted into PTI, she was told that the nursing license board would most definitely be notified, and that a suspension of her nursing privileges was undoubtedly possible. Again, one of the main reasons I pleaded guilty to anything was because I knew my wife would be able to support the family for a long while. I now realize that this may very well not be the case.[]

e. Although no one other than my wife and I knew this, my wife advised me that if I did not accept a plea, she would leave me and take my three children with her to North Carolina to live with her parents. This was absolutely devastating to me. I never advised either the court or my previous attorney of this, as it was quite embarrassing to me and my entire family. This case has received more than enough media coverage already.

f. I was adamant throughout this litigation that I wanted to testify before the grand jury. I was never given that opportunity, or a target letter.

g. Since entering my plea, I have done independent research relative to the gambling charges and potential experts to testify on my behalf. I am very confident that an expert should have been retained on my behalf to opine as to whether or not the elements of the gambling statutes were or were not satisfied. I implore this honorable court to now allow me to do so, in the interests of justice.

h. With all due respect to my previous attorney, I was coerced into doing what he thought was best for he and I, but such is clearly not the case.

The motion was also accompanied by a certification from defendant's co-defendant wife. It reads:

2. I am not proud of what I advised my husband of if he did not accept the plea that was offered. I implore this court to realize, or at least attempt to realize, how difficult it was during this time in our household. I advised my husband Rich that I would leave him and move to North Carolina with our children to live with my parents if he did not accept the guilty plea as offered. No one knew this other than him and me, including our attorneys at the time.

3. I know my husband better than anyone in this world. He maintained his innocence from day one. There is no doubt in my mind that if I did not say to him that which is stated in paragraph 2, he would have never entered a guilty plea. He always wanted the matter to be heard by a jury.

Defendant testified at the hearing. His testimony was consistent with the certifications. He stated he would not have entered a guilty plea if he had known that Galasso, his "prior attorney" (not the attorney who represented him at the time of the plea) had been called before the grand jury and testified as he did. He acknowledged that he and plea counsel "spent hours upon hours talking about the facts of this case and the potential for a trial as well as potential for a plea and the consequences that would result therefrom." Defendant's guilty plea was to counts thirteen and fourteen of the indictment. The other counts in which he was charged were dismissed as to him.

Plea counsel was not called to testify at the hearing. In denying defendant's motion, the judge noted that defendant's plea was part of a "global" disposition involving six co- defendants, after "extensive negotiations" following numerous pretrial proceedings, including those involving tape recorded conversations. The judge also reviewed the thorough colloquy with defendant conducted at the time of the plea, and addressed every contention made by defendant. Finally the judge noted that he had "nothing before [him]" from defense counsel who represented defendant at the time of the plea, in support of defendant's contentions.

Before us, defendant emphasizes he didn't realize that Galasso, who had done work for him and the casino entity he owned, had testified before the grand jury, and defendant did not know what Galasso said before he entered his plea. Defendant states if he had known of the testimony he would have gone to trial, called Galasso as a witness, and demonstrated that he followed Galasso's advice. But certainly defendant would have known of the advice he received, and of the "mistake of law" defense, when he pled guilty, and the motion judge noted "all of the attorneys and the parties were aware of the fact that Mr. Galasso was the key witness with respect to the advice given, or at least that's the way it was presented when everyone was relying upon the memorandum that Mr. Galasso had prepared." The judge also noted that Galasso was ordered to testify before the grand jury by him, and that defendant acknowledged the grand jury testimony "was provided at least eight days . . . prior to the plea."

As we stated in State v. Luckey, 366 N.J. Super. 79, 86-88 (App. Div. 2004):

Rule 3:21-1 governs motions to withdraw a plea of guilty and states that it "shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." Rule 3:21-1. Never-theless, the burden rests on the defendant to establish why the motion to withdraw his or her guilty plea should be granted. As we have said:

[I]t is clear that the burden rests on defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion. Any other approach would automatically require a trial judge to grant such motions, and strip him of any discretion in the matter. Liberality in exercising discretion does not mean an abdication of all discretion.

[State v. Huntley, 129 N.J. Super. 13, 17, 322 A.2d 177, certif. denied, 66 N.J. 312, 331 A.2d 12 (1974).]

Thus, the trial court has considerable discretion in entertaining such a motion, and our review must recognize the discretion to which the trial court's decision is due. State v. Bellamy, 178 N.J. 127, 135, 835 A.2d 1231 (2003); State v. Deutsch, 34 N.J. 190, 197, 168 A.2d 12 (1961). See also State v. Smullen, 118 N.J. 408, 417, 571 A.2d 1305 (1990). In considering the motion, the timing of the plea and the fact it was a negotiated disposition, terminating the need for trial, are factors that must be considered.

. . . .

[T]he "claim to be relieved of its consequences must be weighed against the strong interest of the State in its finality." State v. Taylor, 80 N.J. 353, 362, 403 A.2d 889 (1979). See also State v. Smullen, supra, 118 N.J. at 418, 571 A.2d 1305 ("reiter[ating] the important interest of finality to pleas").

Furthermore, the burden of persuasion on the defendant is heavier when the guilty plea is made in connection with a plea bargain:

[W]hen a voluntary and knowing plea bargain has been entered into simultaneously with the guilty plea, defendant's burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier. The approved philosophy of plea bargaining is dependent upon the good faith of both sides in carrying out the bargain when it is voluntarily and knowingly made, is fair and just and is ultimately approved by the trial judge. A whimsical change of mind by defendant, or the prosecutor, will not be a valid reason for altering the bargain. State v. Thomas, 61 N.J. 314, 321-23, 294 A.2d 57 (1972); State v. Wall, 36 N.J. 216, 218, 176 A.2d 8 (1961). Even a belated assertion of innocence will not upset an otherwise validly entered into plea bargain. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); U.S. v. De Cavalcante, 449 F.2d 139 (3[d] Cir. 1971), cert. denied, 404 U.S. 1039, 92 S. Ct. 715, 30 L. Ed. 2d 731 (1972).

[State v. Huntley, supra, 129 N.J. at 18, 322 A.2d 177 (parallel citations omitted).]

Thus, when there is a negotiated "plea bargain," the defendant must show that he or she was "'misinformed' about a material element of a plea negotiation" or that his or her "'reasonable expectations,' grounded in the terms of the plea agreement" were not fulfilled, and that he or she "is prejudiced by enforcement of the agreement." State v. Howard, 110 N.J. 113, 122-23, 539 A.2d 1203 (1988). See also State v. Bellamy, supra, 178 N.J. at 134-35, 835 A.2d 1231; State v. Smullen, supra, 118 N.J. at 417, 571 A.2d 1305. "Hence, the plea will not be vacated if knowledge of the consequences would not have made any difference in the defendant's decision to plead." Howard, supra, 110 N.J. at 123, 539 A.2d 1203.

See also State v. Johnson, 182 N.J. 232, 243-44 (2005) (lack of knowledge of penal consequences of plea must be material).

Applying these standards, we find no basis for disturbing the motion judge's exercise of discretion, particularly given the lack of dispute regarding the factual statements he made about the proceedings before him and the extensive reasons he gave. Accordingly, we need not consider, even if we could without having the co-defendants before us, any issue concerning the impact of any plea withdrawal by defendant on the disposition of the cases against the co-defendants.

Affirmed.

As a result of a motion for stay pending appeal, we vacated the condition of community service as it was not to be included as part of the negotiated plea. The plea form noted that a sentence of probation was recommended, but that there was a "no contract plea as to 364 days." The State's ability to "argue for a jail sentence up to 364 days" was noted on the record, but defendant was not asked about it at the plea. At the hearing on defendant's motion to withdraw his plea, defendant stated his attorney advised him the plea involved no "possibility for any incarceration," and the prosecutor confirmed a prior statement to plea counsel by recommending that no custodial aspect be imposed. While neither the sentence transcript nor judgment is in the record, it appears defendant did not receive any custodial sentence (although he received a credit one day for time served).

There is nothing in the record to suggest the agreement with defendant's wife was not fully honored. At the plea withdrawal hearing the prosecutor stated "there's nothing in this record to suggest that there is any likelihood that she will lose her license."

Defendant asserted at the hearing that Galasso had perjured himself before the grand jury, and the judge noted that defendant was relying on Galasso although he "is a perjurer [who] perjures himself before the Grand Jury." Defendant advised the judge he waived the attorney-client privilege. The copy of the Grand Jury testimony given to us does not indicate any testimony by Amato Galasso. We do not comment on any privilege he might have if called to testify at a trial.

We were not presented with a transcript of pre-plea proceedings before the judge.

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A-1212-07T4

October 29, 2008