STATE OF NEW JERSEY v. ALFRED CARRINO, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2558-06T42558-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALFRED CARRINO, JR.,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 28, 2008 - Decided

Before Judges Parrillo and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-02-0287.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel; Jacqueline A. Farrell, Deputy Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Alfred Carrino, Jr., appeals from an April 13, 2006 order that denied his appeal of the prosecutor's rejection of his application for Pretrial Intervention (PTI) and from an October 6, 2006 order that denied his motion to withdraw his guilty plea. After denying the latter motion, the judge sentenced defendant to a three-year term of probation on the charge to which defendant had pled guilty, conspiracy to possess a controlled dangerous substance, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1). We affirm.

I.

On September 24, 2004, defendant was stopped by a Wall Township police officer due to an expired inspection sticker on his vehicle. A license check revealed that defendant's driver's license was suspended and there were active warrants out for his arrest. The officer took defendant into custody on the outstanding warrants and conducted a search incident to that arrest. One bag of heroin was recovered during that search.

Defendant applied for admission to the PTI program. On June 13, 2005, a PTI investigator recommended that his application be denied. A month later, on July 7, 2005, the Monmouth County Prosecutor's Office rejected defendant's PTI application. The State based its rejection on a single statutory factor, N.J.S.A. 2C:43-12(e)(3), the motivation of defendant. The assistant prosecutor provided the following justification for that conclusion:

The defendant failed to appear for his scheduled appointments despite the attempts by the PTI investigator to contact him. As a result, the PTI investigator has recommended that defendant not be accepted into the program and I agree. The defendant has shown that he lacks the necessary motivation to participate in the PTI program by failing to appear for the initial interview. Additionally, the defendant has failed to be deterred from committing further criminal activity by his various arrests and convictions as an adult. The PTI investigator also indicates that the defendant has spent 25 days in the County Jail. This jail time was insufficient to deter further criminal activity. Also, the defendant has demonstrated a lack of respect for court orders. He has continued to drive while his license was suspended. He also is in arrears in his child support.

For all of these reasons, the defendant has demonstrated that he is not a suitable candidate for the PTI program and he is rejected.

Defendant appealed the prosecutor's denial of his PTI application. His principal argument in the Law Division was the prosecutor's refusal to give proper consideration to a medical condition that excused his failure to appear for his PTI interview. In particular, defendant argued that a skull fracture on December 31, 2004, resulted in surgery and an ensuing five-day hospitalization. He argued that "since then, he's had serious problems . . . being homeless, [and has] also had difficulty with memory . . . ." He asserted that the medical records entitled him to reversal of the PTI rejection. During argument of the PTI appeal, the prosecutor explained that she had reviewed all of the medical records that defendant provided and nothing in those records caused her to reconsider the State's conclusion that defendant was not a suitable candidate for PTI. She again relied both on defendant's lack of motivation and on his repeated failure to comply with court orders. She asserted that the latter was evidenced by defendant's driving record that included forty-seven driver's license suspensions and twenty-five traffic court convictions.

In a comprehensive and well-reasoned oral opinion, Judge Mellaci upheld the prosecutor's denial of defendant's PTI application. The judge reasoned:

[D]efendant states that he did not attend his PTI interview because of injuries which he sustained in January 2005 and [because of a] lack of stable residence. Defendant contends that because the PTI investigator and prosecutor were not aware of his medical conditions and work problems, it was impossible for them to determine his motivation, positive attributes and potential rehabilitation.

Thus, concludes defendant, the prosecutor's rejection of his PTI application was a patent and gross abuse of discretion and at the very least, should be remanded for additional fact-finding by the prosecutor's office. Here again, the prosecutor did review the documentation that was provided.

. . . .

In addressing the defendant's motivation, the prosecutor stated that defendant failed to appear for scheduled appointments despite the attempts of the PTI investigator to contact him. And I agree. The defendant [has] shown [that] he lacks the necessary motivation to participate in the PTI program by failing to appear for the initial interview. . . . The PTI investigator called defendant and left messages on May 19, 2005 and May 25, 2005 asking defendant to call and make an appointment for the PTI interview. When defendant did not return those calls, a letter was mailed to him which stated his interview was scheduled for June 2, 2005. The PTI investigator called defendant and left another message on May 31 reminding him of his June 2 interview. When the defendant failed to appeal, another phone call was made on June 10 and the PTI investigator left a message informing defendant [that] his PTI status was in serious jeopardy and defendant must contact the investigator by 4:30 p.m. Defendant failed to contact the investigator.

The judge also addressed the State's contention that "defendant has failed to be deterred from committing further criminal activity . . . ." The judge reasoned:

Along with the defendant's steadfast inability to return a phone call concerning the PTI interviews, [his] criminal history also speaks volumes [about] his amenability toward rehabilitation and his motivation to be rehabilitated.

Defendant has forty-seven prior orders of suspension of his driver's license. He has twenty-five traffic court convictions, four of which were for driving while suspended and three for driving under the influence. Two of the previous offenses occurred after his arrest for the current offense. The PTI report also shows [that] since September 24, 2004, the date of defendant's current offense, he has multiple charges at the municipal level for which he spent a total of 25 days in the county jail.

Further, going all the way back to 1982, defendant has a variety of municipal court charges and convictions ranging from possession of CDS and possession of drug paraphernalia to disorderly conduct and loitering. He also had a bench warrant for failure to appear issued in 2000.

Finally, defendant has an obstruction and disorderly persons charge arising out of an incident on February 19, 2005. And as of the writing of the report that I am reading, there is a date pending on such charges in the municipal court.

The judge next evaluated defendant's contention that his December 31, 2004 skull fracture caused him to become disorganized and unable to follow through on appointments and obligations such as the scheduled PTI interview. The judge rejected defendant's argument:

Defendant attributes his current behavior to injuries suffered back in January of 2005 . . . . Yet, as the prosecutor['s office] states in its brief, defendant provides no evidence regarding the continuing effect of that condition, . . . [to] explain why he did not come forward and . . . explain adequately his prior conduct prior to this injury.

Suffice it to say, I am satisfied that the rejection by the [PTI program] director and the prosecutor was not an arbitrary, capricious and unreasonable action and I will deny the motion [to admit defendant into PTI].

Approximately six months after the Law Division affirmed the prosecutor's rejection of defendant's PTI application, defendant entered a negotiated guilty plea to an amended charge of conspiracy to possess a controlled dangerous substance. At the time defendant entered his guilty plea, he stated under oath that: he had discussed the charges and the facts of his case with defense counsel; he was satisfied with the legal advice he received; if this was his third conviction for driving while suspended, he understood that he would be required to serve a mandatory jail term; he signed the plea form voluntarily; no one forced him or threatened him to plead guilty; he understood all the questions on the plea form and had reviewed the plea form with his attorney; the answers he provided on the plea form were accurate, truthful and complete; he understood that by entering a plea of guilty he was relinquishing his right to a trial by jury, at which he would have been entitled to cross-examine the State's witnesses and call witnesses in his own behalf; he was giving up the right to remain silent and to the presumption of innocence; and no promises had been made to induce him to plead guilty other than those already discussed on the record in open court.

After answering those questions, defendant stated that on the day in question, when the police officer pulled him over, there were four outstanding municipal arrest warrants and that the police officer consequently took him in custody. He acknowledged that at the time of that arrest he was searched and a small amount of heroin was found in his pocket. He acknowledged that the heroin was his and that he was aware it was in his pocket. He also acknowledged that he was driving on the revoked list at the time. He thereafter entered pleas of guilty.

At the conclusion of the plea colloquy, the judge specifically found that defendant's guilty plea was knowing and voluntary and had been entered with the advice of competent counsel. After finding that defendant had provided a factual basis for the pleas of guilty, the judge accepted defendant's guilty pleas and set the matter down for sentencing on October 6, 2006.

On April 20, 2006, defendant filed a motion to withdraw his guilty plea, which was heard on October 6, 2006. The judge began by discussing and reviewing the transcript of defendant's plea colloquy. Judge Chaiet observed that the judge who conducted the plea colloquy had thoroughly discussed with defendant the rights he was giving up by pleading guilty and had reviewed with defendant all the terms and conditions of the plea agreement. After analyzing those proceedings, Judge Chaiet concluded that "the plea was voluntarily entered on that particular day, . . . a factual basis" [was provided] and there is no basis set forth for withdrawing this plea."

On appeal, defendant presents the following arguments:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPEAL OF THE PRE-TRIAL INTERVENTION REJECTION.

II. THE TRIAL COURT ERRED [IN] DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA.

II.

We turn first to defendant's claim that Judge Mellaci committed reversible error of law when he denied defendant's PTI appeal. As we review the trial court's decision, we remain mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Once a prosecutor refuses to consent to the diversion of a particular defendant, the prosecutor's decision is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (quoting DeMarco, supra, 107 N.J. at 566). As a result, the scope of a court's review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Bender, 80 N.J. 84, 89 (1979).

Here, we are satisfied that Judge Mellaci correctly concluded that the prosecutor's rejection of defendant's PTI application was not a patent and gross abuse of discretion. Specifically, we agree with the judge's determination that defendant was not amenable to PTI supervision because he lacked the required motivation and was not able to conform his behavior to the requirements of the law. The record amply supports the judge's conclusion that defendant has not demonstrated the motivation that is necessary in order to successfully complete PTI. The PTI coordinator went to great lengths to ensure that defendant appeared for his PTI interview. Despite her four telephone calls and a letter, defendant did not appear for his scheduled PTI interview on June 2, 2005.

Defendant does not assert that because of his intermittent homelessness he never received the four messages or the letter. Instead, he acknowledges that he received the telephone messages and the letter, but maintains that because of the after-effects of his December 2004 skull fracture, he has trouble remaining organized and keeping track of obligations such as the PTI interview. As we have discussed, he provided his medical records to the assistant prosecutor who, after reviewing those records, determined that nothing in those records provided support for defendant's claim. As we understand the record, the judge did not have the opportunity to review those records because they were provided only a day or two before the PTI appeal was scheduled to be heard.

In order to ensure complete appellate review of defendant's claims, we asked the parties to provide us with a copy of those medical records. Our review of those documents establishes that defendant was admitted to the hospital on December 31, 2004, with a skull fracture and was discharged on January 5, 2005, after undergoing surgery to close the fracture. Nothing in those records makes any mention of brain damage or other organic change that would adversely impact defendant's ability to remember an appointment or make sure he appeared at the appointed time. In the absence of such expert opinion, we are not prepared to conclude that the skull fracture caused any such deficits. Moreover, the record supports the judge's observation that four months had elapsed between the time of defendant's hospitalization and the June 2, 2005 PTI interview, at which defendant failed to appear. Defendant's claim that the medical records make the prosecutor's rejection of his PTI application a patent and gross abuse of discretion is meritless.

The record also amply supports the judge's conclusion that defendant's numerous traffic convictions, and indeed his twenty-five days of incarceration for municipal court sentences after he filed his PTI application, further bolster the prosecutor's conclusion that defendant was not amenable to PTI. As long as traffic convictions are temporally-related to the PTI application, a prosecutor is entitled to rely on them as a basis for rejecting a PTI application. State v. Negran, 178 N.J. 73, 84 (2003). In sum, the record here amply supports the judge's conclusion that the prosecutor's rejection of defendant's PTI application was not a patent and gross abuse of discretion. See Leonardis II, supra, 73 N.J. at 381.

III.

We turn next to defendant's contention that the denial of his motion to withdraw his guilty plea was error. We review a trial court's denial of a motion to withdraw a guilty plea for an abuse of discretion. State v. Smullen, 118 N.J. 408, 416 (1990). A motion to withdraw a guilty plea, made prior to sentencing, should be liberally granted, State v. Deutsch, 34 N.J. 190, 198 (1961); however, where the guilty plea is entered pursuant to plea negotiations, a defendant's burden becomes significantly heavier, State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974). Under such circumstances, a plea that has been voluntarily made will not be vacated unless the defendant presents a "plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). A "whimsical change of mind by defendant . . . will not be a valid reason for altering the [plea] bargain." Huntley, supra, 129 N.J. Super. at 18.

Here, we are satisfied, as were the two judges who accepted defendant's guilty plea and considered his motion to withdraw from that plea, that defendant entered his guilty plea knowingly and voluntarily. There was a factual basis for his plea of guilty. Defendant acknowledged that he was satisfied with the legal advice provided by his attorney and had sufficient opportunity to consult with his attorney before entering his plea of guilty. He has never asserted any defense to the charge of conspiracy to possess a controlled dangerous substance. Instead, he simply asserts that his fractured skull interfered with his ability to make a reasoned decision. As we have already discussed, nothing in any of the medical records defendant provided even remotely supports such a contention. We accordingly view his motion to withdraw his guilty plea as the "whimsical change of mind" that Huntley obligates trial judges to reject. See ibid.

Affirmed.

The judge inadvertently referred to defendant's discharge date in January 2005 rather than the date of the injury, which was December 31, 2004.

(continued)

(continued)

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A-2558-06T4

May 6, 2008