STATE OF NEW JERSEY v. GABRIEL IANNACONE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5209-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GABRIEL IANNACONE,

Defendant-Appellant.

________________________________________________________________

October 28, 2010

Submitted October 5, 2010 - Decided

Before Judges Payne and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2008-053.

Epstein Becker & Green, P.C., attorneys for appellant (Sheila A. Woolson, of counsel; Michael J. Slocum, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the May 27, 2009, order of the Law Division refusing to allow a withdrawal of guilty pleas entered by him in the Maplewood Municipal Court on October 16, 2008. We affirm.

Participating by video conference from Northern State Prison and represented by counsel who was present in the municipal court, on October 16, 2008, defendant entered a guilty plea to a violation of the terms of a suspended sentence for the disorderly persons offense of passing a check knowing it would not be honored, N.J.S.A. 2C:21-5c. In 2000, defendant issued the check from a closed account for $862.85 for plumbing work. He received a suspended sentence, but violated its terms. Prior to his pleading guilty to this disorderly persons offense, the municipal judge informed defendant that the State was recommending a $200 fine on this charge. After he pled guilty to this offense, the municipal court sentenced him to the "agreed-upon" $200 fine plus court costs of $30 and mandatory assessments of $125. On the same day, defendant went on to plead guilty to the four following motor vehicle violations from October 25, 1999, and December 7, 1999: unregistered motor vehicle, N.J.S.A. 39:3-4; careless driving (amended from reckless driving) N.J.S.A. 39:4-97; driving with a suspended driver's license, N.J.S.A. 39:3-40; failure to obey whistle of police, N.J.S.A. 39:4-122. After each plea of guilty, the municipal judge imposed the minimum mandatory fines and assessments pursuant to the Statewide Violations Bureau Schedule (the Schedule) except in one instance. He imposed a fine and court costs $48 in excess of the minimum for the violation of N.J.S.A. 39:4-122.

The court dismissed five other motor vehicle violations. Pursuant to an agreement with the prosecutor, defendant was sentenced to a $200 fine on the violation of the suspended sentence for the bad check charge. Minimum mandatory penalties were assessed on all charges for a total, including the fine, of $1160.1

On appeal, defendant raises the following issue,

THE LAW DIVISION'S DECISION SHOULD BE REVERSED, OR IN THE ALTERNATIVE, THIS MATTER SHOULD BE REMANDED TO MAPLEWOOD MUNICIPAL COURT FOR A NEW HEARING.

Defendant claims that he entered into a plea agreement with the understanding he would receive no more than $200 in total sanctions. Thus he appeals the additional $960 assessed.

The transcript of the municipal hearing is marked "Please note: There are indiscernibles [sic] in the beginning of the transcript due to microphone feedback." During the indiscernible section of the discussion, defendant claims he was promised he would have to pay no more than a total of $200 as a result of his plea agreement. He argues that the additional fines and assessments imposed violate his understanding of the agreement.

The transcript, however, reveals that after his first plea to the disorderly persons offense, the Maplewood Municipal Judge sentenced him to a $200 "agreed-upon" fine, as well as $30 in court costs, a $50 Violent Crimes assessment, N.J.S.A. 2C:43-3.1, and a $75 Safe Neighborhood Services Fund assessment, N.J.S.A. 2C:43-3.2. Neither defendant nor his attorney complained about the total sanction of $355. To the contrary, defendant went on to enter guilty pleas to four traffic violations, receiving additional sanctions after each guilty plea.

Nothing in this record supports defendant's contention that he was promised a maximum sanction of $200. He pled guilty to a disorderly persons offense and traffic violations which carried mandatory assessments well in excess of $200.2

A

1 The prosecutor maintains the total was $1600; defendant claims $1160. Our review of the record supports defendant's calculations.

2 His plea to driving with a suspended license alone mandated a $500 fine. N.J.S.A. 39:3-40(a).