STATE OF NEW JERSEY v. DELFIN FIGUEROA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6000-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DELFIN FIGUEROA,

Defendant-Appellant.

May 16, 2011

Submitted March 28, 2011 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2010-012.

Ashton E. Thomas, attorney for appellant.

CarolynA. Murray,Acting EssexCounty Prosecutor,attorney forrespondent (StephenA. Pogany,Special DeputyAttorney General/ AssistantProsecutor, onthe brief).

PER CURIAM

Defendant Delfin Figueroa entered a guilty plea to refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. He now appeals from the Law Division judgment, entered after trial de novo pursuant to Rule 3:23, denying his application to vacate the plea. We affirm.

On October 17, 2009, Newark police were dispatched to the scene of a motor vehicle accident. A report was subsequently filed by a patrol officer identified only as "V. Sarno,"1 which stated that when he arrived at the scene, he observed defendant's vehicle had struck another car from the rear. An ambulance was called as a passenger in the first vehicle had been injured. The officer noted defendant, the apparent operator of the second car, was leaning against a "no parking" sign for support. Defendant admitted drinking beer prior to driving, his speech was slurred, he was confused, his eyes were watery, and the officer detected a strong odor of an alcoholic beverage about his person. The officer concluded defendant had been operating his motor vehicle while under the influence of alcohol.

While in his police vehicle, the officer asked defendant if he would submit to a field sobriety test. Defendant declined. At that juncture, the officer placed defendant under arrest for driving while under the influence of alcohol. He next advised defendant of the "N.J. Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle in Regards to a Breath Test," and defendant also declined to submit to the breath test. The officer asked him to undergo testing a second time, and he again declined. Defendant's vehicle was towed and he was taken to a nearby police station for processing.

On January 26, 2010, defendant entered a guilty plea on the refusal charge before the Newark Municipal Court. Penalties and fines of $139 were imposed and defendant's license was suspended for ten years. The remaining charges were dismissed.

Defendant subsequently filed an application to retract his guilty plea. Because the relief was not granted in the Municipal Court, he appealed to the Law Division. When that court would not permit him to vacate his guilty plea, this appeal followed.

Defendant now claims, as he did in the trial court, that the standards for the withdrawal of pleas enunciated in State v. Slater, 198 N.J. 145 (2009), were misapplied in his case. Slater stands for the proposition that motions to withdraw guilty pleas should be decided after analyzing whether a defendant has a colorable claim of innocence, assessing the nature and strength of defendant's reasons for withdrawal, observing the existence of a plea bargain, and ascertaining whether withdrawal would unduly prejudice the State or unfairly advantage the accused. Id. at 157-58. We affirm Judge Patricia Costello's conclusion that defendant failed to meet the Slater test for the reasons she stated on the record.

First and foremost, defendant has not asserted a colorable claim of innocence. Additionally, his reasons for seeking withdrawal of the plea reflected only a change of heart, and not a more substantial basis for the application. Defendant's failure to meet these key requirements mandated denial of his application pursuant to Slater.

Defendant also contends the court erred as a matter of law in denying the application to set aside his plea to refusal, entered even though he was not issued a summons for driving while under the influence. He urges we find that State v. Wright, 107 N.J. 488 (1987), requires the State to first prove that police had probable cause to believe the defendant was operating a motor vehicle while intoxicated and was arrested for driving while intoxicated. See id. at 490. Defendant further construes Wright as meaning an actual charge, not just an arrest, for driving while intoxicated is a necessary precondition to a prosecution for refusal. Since he was not issued a driving while under the influence ticket, he asserts the principles enunciated in Wright have been violated and his prosecution for refusal is therefore invalid. We agree with Judge Costello's discussion of Wright, and her determination that the officer's arrest of defendant for driving while under the influence was sufficient to meet the requirements established in that case. An actual summons for the DWI offense, as opposed to the refusal offense, was not required. See State v. Nunnally, ___ N.J. Super. ___, ___ (App. Div. 2011) (slip op. at 17-20) (comparing commercial driver's license and general DWI refusal statutes to show both require only an arrest for the underlying DWI offense).

Additionally, defendant claims it was impossible for the officer to have read him the standard statement regarding refusal while he was seated in the police vehicle at the scene. He alleges the officer would not have had a copy of the statement in his car, is misrepresenting the circumstances in his report, and that this possibility somehow vitiates his guilty plea. On this score, Judge Costello appropriately declined to speculate as a reason for setting aside an otherwise unimpeachable guilty plea.

1 We have been supplied a copy of the report in defendant's appendix. The signature is illegible; however, in defendant's brief, he identifies the officer as "V. Sarno."