STATE OF NEW JERSEY v. ELISEO LEDESMA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6528-04T43532-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELISEO LEDESMA,

Defendant-Appellant.

________________________________

 

Submitted June 9, 2009 - Decided

Before Judges Lisa and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No. 07-06-1050-I.

Paul Condon, attorney for appellant.

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Jordan S. Goldsmith, Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Pursuant to a negotiated plea agreement, defendant Eliseo Ledesma entered guilty pleas to second-degree conspiracy to distribute a controlled dangerous substance, contrary to N.J.S.A. 2C:5-2, second-degree possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2), and second-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7 under Hudson County Indictment Number 07-06-1050I.

On appeal defendant presents the following arguments:

POINT I - THE DEFENDANT'S PLEA TO CONSPIRACY AND POSSESSION WITH INTENT TO DISTRIBUTE COCAINE IN A QUANTITY IN THE SECOND DEGREE RANGE WAS NOT SUPPORTED BY A FACTUAL BASIS.

POINT II - THE ACCEPTANCE OF THE GUILTY PLEA TO CONSPIRACY WAS IN ERROR AS DEFENDANT RENOUNCED HIS PARTICIPATION IN THE OFFENSE.

POINT III - THE ACCEPTANCE OF THE GUILTY PLEA WAS IN ERROR AS DEFENDANT'S (SIC) IT WAS NOT KNOWING OR VOLUNTARY.

POINT IV - THE COURT'S SENTENCE OF FIVE YEARS SUBJECT TO THE NO EARLY RELEASE ACT WAS EXCESSIVE.

A. THE TRIAL COURT ERRED IN FAILING

TO ADDRESS PERTINENT MITIGATING FACTORS.

The arguments presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We offer the following brief comments.

At the plea hearing, defense counsel asked defendant if he conspired with "another individual," and defendant answered in the affirmative. The prosecutor stated, "It's basically that you were supplying Walter Cidaneum [with] cocaine."

Defendant denied this statement. The trial judge refused to accept the guilty plea and ordered that the conspiracy charge be readied for trial. Defendant's plea counsel then conferred with defendant off the record and later advised the court that defendant intended to plead guilty. The judge told defendant his guilty plea must reflect the facts as charged or it would not be accepted. Defendant acknowledged that he understood, and the following colloquy took place:

COUNSEL: [I]n that statement [to the police] you indicated that you had, on prior occasions, provided narcotics to Walter Cidaneum. Is that correct?

DEFENDANT: Yes.

COUNSEL: And you stand by that statement. Is that correct?

DEFENDANT: Yeah.

THE COURT: Is anybody putting any words in your mouth, sir?

DEFENDANT: No.

THE COURT: Are you pleading guilty freely, voluntarily, knowingly, and intelligently?

DEFENDANT: Yes.

THE COURT: Has anybody coerced you or threatened you?

DEFENDANT: No.

THE COURT: Now, if I don't accept the plea, if you don't plead guilty, if I don't sentence you within the plea, we'll go back to not guilty and nothing you say shall be used against you. Do you understand?

DEFENDANT: Yes.

THE COURT: But if you plead guilty, it's almost impossible to go back to not guilty. You'd have to convince me that, in my opinion, it would be very unfair to continue the plea. It's not simply that you changed your mind and want a better plea offer. Do you understand?

DEFENDANT: Yes.

THE COURT: You're pleading guilty freely, voluntarily, knowingly and intelligently?

DEFENDANT: Yes

Defendant further admitted that he was in the possession of cocaine with the intent to distribute and within 1,000 feet of a school. The record reflects an adequate factual basis and a knowing and voluntary plea of guilty to the charges. Defendant's argument that he renounced his role in the conspiracy has no support in the record.

Having been previously convicted under N.J.S.A. 2C:35-7 for distribution within 1,000 feet of a school, defendant was extended-term eligible pursuant to N.J.S.A. 2C:43-6(f). However, in accordance with the plea agreement the judge sentenced defendant on the three second-degree offenses to an aggregate term of seven years with forty-two months parole ineligibility.

Noting that defendant had been convicted of five narcotics offenses in the prior seven years and had a lengthy record of criminal convictions, the judge found the following aggravating factors: the risk that defendant will commit another offense (3); the defendant's prior record (6); and the need to deter (9). The mitigating factors cited by defendant were properly rejected as contradicted by the record. The trial court's assessment of aggravating and mitigating factors is supported by the record and will not be disturbed. State v. Dalziel, 182 N.J. 494, 500 (2005); State v. Roth, 95 N.J. 334, 345 (1984).

 
Affirmed.

(continued)

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A-3532-07T4

July 30, 2009