STATE OF NEW JERSEY v. EDWARD SCOTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4693-08T4

A-4706-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD SCOTT,

Defendant-Appellant.

___________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH MARTI,

Defendant-Appellant.

____________________________________

June 23, 2011

 

Argued May 10, 2011 - Decided

Before Judges Wefing and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment

No. 05-12-2152.

John L. Weichsel argued the cause for

appellants.

Catherine A. Foddai, Senior Assistant

Prosecutor, argued the cause for respondent

(John L. Molinelli, Bergen County Prosecutor,

attorney; Ms. Foddai, of counsel and on the

briefs).

PER CURIAM

Defendants Joseph Marti and Edward Scott each entered negotiated pleas of guilty to two counts of attempted kidnapping (N.J.S.A. 2C:5-1; N.J.S.A. 2C:13-1b), a crime of the second degree; armed robbery (N.J.S.A. 2C:15-1), a crime of the first degree; conspiracy to commit kidnapping (N.J.S.A. 2C:5-2; N.J.S.A. 2C:13-1b), a crime of the second degree; and conspiracy to commit robbery (N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-1), a crime of the second degree. In addition, Marti also pled guilty to one count of hindering apprehension (N.J.S.A. 2C:29-3b(4)), a crime of the third degree. The trial court sentenced defendant Marti on the robbery count to fifteen years in prison, subject to the terms of N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA). All other terms were made concurrent. The trial court sentenced defendant Scott on the robbery count to fourteen years in prison, subject to NERA. All other terms were made concurrent. Marti and Scott have each appealed. Because their convictions arise out of the same factual complex, and they present similar arguments on appeal, we have consolidated their appeals for purposes of this opinion. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Both defendants were involved with a branch of the Latin Kings under the leadership of Jose Vega, known as King June. Vega summoned members of the Kings to his house on February 17, 2005, and he informed them that money, jewelry and drugs had been stolen from his home. At the meeting, which both Marti and Scott attended, plans were developed to retrieve Vega s property from those believed responsible for the theft, Paul Ricciardi and Ralph Pinto. The record is not clear as to how Ricciardi and Pinto were identified as having been involved in the theft.

The plan involved luring Ricciardi and Pinto to a site in Lodi with the pretense of completing a drug transaction. Once there, Ricciardi and Pinto were to be subdued by members of the Kings and taken to another location.

Ricciardi and Pinto and several members of the Kings drove to the agreed-upon site in Ricciardi s truck. Two other members of the Kings, Anthony Vega and Monica Penalba, drove other members of the gang, including Marti and Scott. Marti and Scott knew that at least one of the group was carrying a handgun. Marti s assignment was to take Ricciardi s truck and drive it away once everyone had gotten out of it. Scott s assignment was to assault Ricciardi after he got out of the truck.

Plans, however, went awry. When Ricciardi and Pinto got out of the truck, a struggle ensued over the gun. The gun discharged, and Marti was shot in the leg. Penalba put Marti in Ricciardi s truck and drove off. In the fight that developed between the remaining Kings and Pinto and Ricciardi, Pinto was killed and Ricciardi beaten. Driving Ricciardi s truck, Penalba eventually arrived in Passaic, where she dropped off Marti. Marti told a police officer he had been wounded in a drive-by shooting. He told the police this story in order to avoid any linkage to the incident in Lodi.

Marti s efforts in this regard were unsuccessful, and the police eventually uncovered what had occurred. Marti and Scott were indicted, together with fifteen other individuals, in a thirty-nine count indictment. We set forth at the outset of this opinion those charges filed against Marti and Scott to which they ultimately pled guilty. As part of their respective plea agreements, the State agreed to dismiss a number of other charges against the two, including murder, felony murder, conspiracy to commit murder and various weapons charges.

On appeal, both Marti and Scott raise the same argument their conviction for robbery should be set aside because they gave an insufficient factual basis to a charge of robbery when they entered their guilty pleas.

In order to analyze defendants argument, it is necessary to set forth the colloquy that occurred in connection with their guilty pleas. We turn first to defendant Marti.

Prior to eliciting a factual basis, the trial court carefully reviewed with defendant the various rights he was about to surrender and the details of the sentencing recommendation the State had agreed to make. The trial court also questioned Marti to make sure that he had had sufficient time to talk to his attorney and was satisfied with the advice he had received from his attorney. The trial court also stressed to Marti that the State s recommendation was not binding upon the court. Marti was then questioned in the following manner and gave the following answers.

[Q]: On Thursday February 17th, 2005, were you advised of a robbery that had occurred at the home of Jose Vega where money and drugs and jewelry were stolen?

[A]: Yes.

 

[Q]: Were you ordered to go to King June's house that evening to provide security for him?

[A]: Yes.

 

[Q]: And to look for the individuals who robbed him?

[A]: Yes.

 

[Q]: Did you go to June's house?

[A]: Yes.

 

[Q]: Were there other Kings there?

[A]: Yes.

 

[Q]: Earlier that evening, did you go to Juan Veras's house in Lodi?

[A]: Yes.

 

[Q]: And did you meet with codefendants Veras, Vargas, Scott, Penalba, Vega, Georgi?

[A]: Yes.

 

[Q]: And was there a discussion of a plan to take up -- to make a drug deal in Lodi, to lure Ricciardi and Pinto to Marion Pepe Drive at the Lodi Lanes?

[A]: Yes.

 

[Q]: Was there a plan to kidnap Pinto and Ricciardi and bring them to another location?

[A]: Yes.

 

[Q]: And that location was to be determined by a superior. Correct?

[A]: Yes.

 

[Q]: And were you supposed to get the property that was taken from June's house?

[A]: Yes.

 

[Q]: Did you know that codefendant Juan Veras was bringing a handgun to the robbery and kidnapping location?

[A]: Yes.

 

[Q]: Upon arrival of the four people, did you see codefendants ambush them when they got out of the truck?

[A]: Yes.

 

[Q]: And was your role to take the truck after they got out of it?

[A]: Yes.

In addition to this colloquy, Marti also completed a form headed Guilty Plea Stipulation. This form had the following hand written statement:

I went with others to take against their will persons known as Ralph Pinto and Paul Ricciardi from one place to another with force, if necessary. I know that Juan Veras had a gun in his possession. I did not abandon the group. I stayed with them

and assisted in the assault and was present at all times. I didn t take property, but property may have been taken. I was shot and went to Passaic and reported a false shooting to hinder my apprehension and others.

 

Marti was nineteen years old at the time of the incident and twenty-two years old when he was sentenced in accordance with the plea agreement.

The trial court was similarly careful with respect to defendant Scott, who was seventeen at the time he was arrested and twenty-one when he was sentenced. Scott had on several occasions indicated he had decided to plead guilty and then changed his mind. The trial court carried the matter on each instance, giving Scott the time he needed to consult with his attorney.

Scott also executed a Guilty Plea Stipulation, which recited the same factual scenario as had the stipulation Marti had executed. When Scott determined to accept the plea terms offered, the trial court questioned him extensively to make sure that he was not being coerced into pleading guilty. The trial court also explained to him the principles of accomplice liability. In the plea colloquy that followed, he was asked the following questions and gave the following answers:

[Q]: Okay, on Thursday February 17th, 2005, were you advised that a robbery occurred at the home of Jose Vega, also known as King June, and money, drugs and jewelry were stolen?

[A]: Yes.

 

[Q]: Were you ordered to go to June's house that night to do security and -- and/or look for individuals who might have robbed him?

[A]: Yes

 

[Q]: And you did that?

[A]: Yes

 

[Q]: Did you go to June's house and were there other Kings there?

[A]: Yes.

 

[Q]: Okay. On the next day, did you go to the wake for Queen Black Rose in Passaic?

[A]: Yes.

 

[Q]: And then afterwards, did you go to Juan Veras's house in Lodi and meet with codefendants Veras, Vargas, Penalba, Anthony Vega, Georgi and Marti?

[A]: Yes.

 

[Q]: And at that time, was there a discussion to set up a fake drug deal in Lodi, whether you were part of that discussion or not, did you know there was a discussion and to lure Pinto and Ricciardi to Marion Pepe Drive, that was near the Lodi Lanes?

[A]: Yes.

 

[Q]: And as far as you know, was there a plan either to lure, kidnap, or whatever, even though you may not have been involved in that direct conversation, was it your -- did you know that there was that plan to get those guys over to Lodi and to bring them to another location to be determined by June at some later point. Did you know that? Did you --

[A]: Yes.

 

[Q]: Were you aware that that was happening?

[A]: Yes.

 

[Q]: You were in that area when discussions were being had and you may [sic] necessarily were not having discussions, is that correct?

[A]: Yes

 

[Q]: Okay. Did you know that Juan Veras, who was bringing a handgun to the location?

[A]: Yes.

 

[Q]: And did you -- do you know that a handgun could cause injury and/or death?

[A]: Yes.

[Q]: And when you got there, did you get to the scene?

[A]: Yes.

 

[Q]: Okay. When you got to the scene, the arrival of -- upon the arrival of the four in the truck, did you and others ambush either Pinto and/or Ricciardi at that location?

Did you surprise them?

You were there, you surprised them, you jumped out of the truck or whatever, is that correct?

[A]: Yes.

 

[Q]: What actually did you do at that location?

[A]: Went for Ricciardi.

 

[Q]: You went for Ricciardi. And when you say you went for him, you went to assault him?

[A]: Yes.

 

[Q]: During the struggle with Ricciardi, was he kicked?

[A]: Yes.

 

[Q]: And who kicked him?

[A]: Me.

 

[Q]: Was there -- was there a hammer that was used to assault him?

[A]: Yes.

 

[Q]: Did you participate in this assault, as you already said on Ricciardi?

[A]: Yes.

 

[PROSECUTOR]: Thank you.

 

[THE COURT]: Prosecutor

 

(Discussion between Prosecutor and Defense Counsel)

 

[Q]: All right. Just one more question and I think we're done.

The question I asked you about -- did you -- what question is that -- oh, number 10.

I asked you this question and you gave me your honest answer. Were you also supposed to get June's property back from them? That was not your role, but you now know -- you now know that he wanted this property back -- as a result of after all these years, do you now know that's -- you found out that he wanted his property back?

Is that correct?

[A]: Yes.

 

[PROSECUTOR]

[Q]: Just one question, Judge.

Mr. Scott, when you went to King June's house the night before, you learned that money, drugs and jewelry had been stolen from that safe. Is that correct?

[A]: Yes.

 

[Q]: And King June was very angry about that, is that correct?

[A]: Yes.

 

[Q]: And did he indicate to you that he wanted his property back -- not to you personally, but did he indicate at that time that he wanted his property back?

[A]: Yes.

 

As we have noted, the sole argument defendants put forth on appeal is that their convictions for robbery should be set aside because each provided an inadequate factual basis at the time he pled guilty. We reject this argument for several reasons. First, we are satisfied that the stipulations and the colloquies establish a sufficient factual basis for a conviction for first-degree robbery on the basis of accomplice liability. Further, defendants are not entitled to seek the withdrawal of merely one portion of their plea agreement. These plea agreements were structured to satisfy the interests of both defendant and the State. If defendants were permitted to have their robbery convictions set aside, the State would not be receiving the benefit of the bargain it struck. Even if we considered the factual bases insufficient, the relief would be to set aside the entire plea bargain and return defendants to the position they occupied before they pled guilty. State v. Barboza, 115 N.J. 415, 420 (1989).

Finally, defendants have not satisfied the requirements of State v. Slater, 198 N.J. 145 (2009). In that case, the Court set down the four factors a court must consider when a defendant seeks to withdraw from a plea bargain. The Court noted the different standards that govern a motion to withdraw a plea that is made prior to sentencing and one that is made after a sentencing. A motion made prior to sentencing may be granted if the trial court determines that the interests of justice would not be served by maintaining the plea bargain. R. 3:9-3(e). The Slater Court noted that prior to sentencing, courts are to exercise their discretion liberally to allow plea withdrawals. Id. at 156. A motion made after sentencing, however, may be granted to correct a manifest injustice. R. 3:21-1. These defendants raised this issue after sentencing, not before.

The Slater Court articulated four principles that must govern consideration of an application to set aside a plea bargain.

We hold that trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (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. See United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2002) (outlining factors to evaluate plea withdrawal motions under Fed. R. Crim. P. 32(e)).

 

The same factors are to be used for motions filed either before or after sentencing, but the timing of the motion will trigger different burdens of proof for the movant: pre-sentence motions to withdraw a plea are governed by the "interest of justice" standard in Rule 3:9-3(e), while post-sentence motions are subject to the "manifest injustice" standard in Rule 3:21-1. As a result, the weighing and balancing process will differ depending on when a motion is filed.

 

[198 N.J. at 157-58.]

Here, defendants arguments are deficient under Slater. They have not put forth specific, credible facts to support a claim of innocence. Id. at 158. Nor have they proffered strong, plausible reasons to be permitted to withdraw from their bargain. There is no indication either was misinformed with respect to material elements of the bargain, did not understand the material terms and consequences of the plea bargain, did not have their reasonable expectations met, or has asserted a plausible defense. Id. at 159-60.

In sum, we find defendants arguments to be unpersuasive, and the judgments of conviction are affirmed.

Affirmed.