STATE OF NEW JERSEY v. STEVEN SALATERSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4538-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN SALATERSKI,

Defendant-Appellant.

_______________________________

August 2, 2011

Submitted February 9, 2011 - Decided

Before Judges Cuff and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-060.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel; Mr. Levow and Michael V. Troso, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was arrested in June 2009 and charged with driving while under the influence (DWI), N.J.S.A. 39:4-50; refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a; failure to maintain lane, N.J.S.A. 39:4-88; failure to exhibit registration, N.J.S.A. 39:3-29; possession of a controlled dangerous substance by a motor vehicle operator, N.J.S.A. 39:4-49.1; and possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a. He pled not guilty to the charges. On the trial date, December 14, 2009, defendant withdrew his not guilty pleas and entered a plea of guilty to DWI. The State dismissed the remaining charges.

Defendant's guilty plea represented his fourth conviction for DWI. Accordingly, the court imposed a six-month custodial sentence, a ten-year loss of his driving privileges, along with the appropriate fines and penalties. The court stayed imposition of the sentence for one week in order to afford defendant the opportunity to put his affairs in order. The court directed that defendant surrender to officials at the Pequannock Township Municipal Court on December 21, 2009.

Defendant surrendered as ordered, but was accompanied by new counsel, who handed the municipal judge a motion to withdraw defendant's guilty plea. The judge considered the motion at that time, taking testimony from defendant and hearing arguments from counsel. At the conclusion of the hearing, he denied the motion. On trial de novo to the Law Division, the court denied defendant's motion to withdraw his guilty plea and re-sentenced defendant in accordance with the sentence imposed by the municipal court. The court continued defendant's bail pending appeal along with additional conditions. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE INTERESTS OF JUSTICE DICTATE THAT MR. SALATERSKI SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA AND PROCEED TO TRIAL IN THIS MATTER.

POINT II

MR. SALATERSKI'S PLEA, ENTERED UNDER DURESS AND COERCION, WAS NOT KNOWING OR VOLUNTARY AND[,] THUS, MR. SALATERSKI WAS DENIED DUE PROCESS OF LAW.

We have considered the points raised on appeal and conclude they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

It appears there were a number of proceedings and letters to the municipal court judge before the December 14 trial date. Most of the correspondence dealt with the question of defendant presenting expert testimony related to his psychological/psychiatric state. As of December 14, however, no expert report was produced nor was any expert named. After defense counsel advised the court that defendant was withdrawing his guilty plea, the municipal judge personally inquired of defendant whether he understood the consequences of his guilty plea, whether the plea was being entered voluntarily, whether defendant felt that he was being forced to plead guilty, and whether any promises had been made to him. In response, defendant admitted drinking three or four beers and that the alcohol affected his ability to drive.

The factors courts review in addressing a motion to withdraw a guilty plea, whether prior to or subsequent to sentencing, are outlined in State v. Slater, 198 N.J. 145 (2009), where the Supreme Court held that trial courts must consider and balance: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 157-58. Consideration of these factors is required whether the motion is made prior to or subsequent to sentencing, but trial courts are to employ a more liberal standard, the interest of justice, in reviewing motions such as the motion defendant made here, that are filed prior to sentencing. Id. at 158. "'[T]he burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)).

Applying the Slater factors, the Law Division judge found that defendant's claim of innocence was a "bold statement and does not rest on plausible fact." The judge reached this conclusion after reviewing the transcript of the plea hearing before the municipal judge and finding that it comported with the requirements for accepting a plea in municipal court as set forth in Rule 7:6-2. Next, the judge found that "defendant's own statements on the record belie his assertion that he was not confident in his [attorney's] representation," noting that defendant expressed his satisfaction with his attorney and told the court that his attorney had answered all of his questions.

Additionally, the court observed that the case had been pending for months, during which time defendant, on his own, could have secured his medical records, and this was, therefore, not a case where defendant was awaiting discovery from the State. The judge also noted that defendant expressed his desire to plead guilty before he knew whether the court would adjourn sentencing. The court then considered the fact that plaintiff entered his plea as part of a negotiated plea. Finally, the court found that "defendant would certainly be advantaged by the withdrawal of the plea. Further, withdrawal would require the [S]tate to prepare the case for trial a second time. And it goes in the face of finality of pleas."

As to the latter finding, the State did not specifically set forth how it would be prejudiced by preparing for trial a second time. Nonetheless, our independent canvass of the record confirms that defendant failed to present "a colorable claim of innocence," he failed to provide strong reasons for the withdrawal of his guilty plea, and his plea was part of a negotiated agreement. Under these circumstances, the first three Slater factors dramatically favor the State. Thus, there was an insufficient basis to permit defendant to withdraw his guilty plea. Consequently, the trial court properly denied the motion.

Affirmed.