STATE OF NEW JERSEY v. EDWARD COMPERCHIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD COMPERCHIO,

Defendant-Respondent.

___________________________________

August 6, 2015

Submitted July 21, 2015 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-01-0058.

Song Law Firm, attorneys for appellant K.B. (Howard Myerowitz, on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent State of New Jersey (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

Hanlon, Dunn, Robertson, Schwartz & Webb, attorneys for respondent Edward Comperchio (Gerald E. Hanlon, on the brief).

PER CURIAM

Following the entry of his negotiated guilty plea to fourth-degree abuse of a minor, N.J.S.A. 9:6-3, defendant moved pursuant to the plea negotiation and Rule 3:9-2 for a civil reservation, that is, for an order that the plea not be evidential in any civil proceeding. The trial court granted defendant's motion. The victim, appeals.1 Having considered her arguments in light of the record and controlling law, and having determined that the trial court's finding of good cause to grant defendant's motion not only was supported by the record, but also saved the State the time and expense and the victim the stress of a lengthy, contentious trial, we affirm.

The facts are undisputed. A grand jury charged defendant in a twenty-count indictment with four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), thirteen counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Several years after the indictment, defendant and the State negotiated a plea and defendant pled guilty to count twenty as amended to fourth-degree abuse of a minor, N.J.S.A. 9:6-3. During the plea proceeding, before accepting the plea, the court explained the terms of the plea agreement to defendant

Now, the plea agreement in this matter is as follows. In exchange for your guilty plea, the State has agreed that, at the time of the sentence, it will move to dismiss the remaining counts of the indictment and they will recommend non-custodial probation, no unsupervised contact with non-family members under the age of 18, no . . . employment involving people under 18, and the State will be seeking 5 years['] probation. And your attorney has reserved . . . the right to argue for less, and your attorney . . . also reserves the right to seek that this plea not be evidential in any civil proceedings pursuant to [Rule] 3:9-2.

Defendant acknowledged that these were the terms of the plea agreement. He pled guilty and provided a factual basis for his plea. The court accepted the plea. As to the civil reservation an issue documented in the plea forms defendant signed and also noted by the court when it recounted the plea terms the prosecutor stated

Judge, the only other thing, as it would also indicate, was in paragraph 21 with respects to the order, seeking that the plea not be evidential in any civil proceeding. As . . . was included in that question, the plaintiff's attorney will seek to be heard. [The attorney] is here present in the courtroom. So that being said, I would ask the [c]ourt to set down a briefing schedule in order to have those documents in prior to the time of sentencing.

The court directed the parties to submit briefs or sentencing memoranda two weeks before the date defendant was to be sentenced.

On the day defendant was sentenced, the court first heard arguments on whether it should grant defendant's application for a civil reservation. The court determined that good cause existed for granting the civil reservation and entered an order granting it. In an opinion delivered from the bench following oral argument, the court reviewed relevant precedent and explained that good cause may be shown where civil consequences of a plea might wreak financial havoc on a defendant. The court also explained that defendant pled guilty with the understanding that the State would not take a position with respect to his application for a civil reservation. Significantly, the court explained

While [t]he [c]ourt finds that the defendant did have knowledge that the victim's attorney would be objecting to a civil reservation, the defendant also had knowledge that the State would be taking no position and, therefore, would not be voicing an objection. Accordingly, [t]he [c]ourt is satisfied that defendant has demonstrated that he would not have taken the plea without this position by the State, and that, it was, therefore, not necessary to make the civil reservation a condition of the plea agreement.

Noting that the victim had demanded $20 million of defendant in a civil action, the court concluded that "this certainly is a matter that would be financially devastating to virtually any individual with a demand of $20 million . . . but it's in combination with all these things taken into account that [t]he [c]ourt finds that defendant has demonstrated good cause as required . . . ."

The court then sentenced defendant to three and one-half years' probation, ordered that he have no contact with non-family members under age eighteen and no employment with minors, and imposed appropriate assessments and penalties. The victim appealed from the order granting the civil reservation.

On appeal, the victim argues, as she did to the trial court, that defendant did not establish good cause to entitle him to a civil reservation. Specifically, she argues that because defendant knew when he voluntarily pled guilty that she would object to a civil reservation, but did not explicitly condition his plea on the civil reservation, he failed to demonstrate good cause related to matters of concern in the administration of the criminal process. She maintains that good cause for a civil reservation is entirely unrelated to any financial hardship the defendant might suffer as a result of the civil action stemming from his criminal acts.

Defendant argues, as he did to the trial court, that he would not have accepted the plea absent the State's agreement to take no position on his application to bar use of the plea in civil proceedings. As a result of the State taking no position, defendant accepted the plea offer, thereby avoiding a lengthy and expensive trial. Defendant also notes that when he pled guilty, "[a] civil complaint had been drafted, . . . and included [twelve] separate counts. The demand was $20,000,000.00." Defendant contends that because his plea was contingent on the State taking no position concerning the use of his plea in a civil action, and in light of the amount of damages the victim was seeking in a pending or prospective civil action, he established good cause. Defendant argues that the trial court did not err in so finding.

We generally defer to a trial court's factfinding if it is supported by sufficient credible evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014). Our review of the trial court's legal conclusions is plenary. State v. Rockford, 213 N.J. 424, 440 (2013).

Rule 3:9-2 includes the conditions under which a court may accept a defendant's plea and provides that "[f]or good cause shown the court may, in accepting a plea of guilty, order that such plea not be evidential in any civil proceeding." There may be occasions when a court must conduct an evidentiary hearing to determine whether the non-evidential use of a guilty plea in civil cases was a condition of the plea, See State v. LaResca, 267 N.J. Super. 411, 419 (App. Div. 1993) (holding that defendant was entitled to an evidentiary hearing as to whether his guilty plea in municipal court was conditioned on an agreement that the plea not be evidential in a civil case). Here, however, the parties do not dispute the facts. The question we must answer is whether the trial court properly applied the law to the undisputed facts. We conclude that it did.

We first address the victim's argument that good cause can be related only to the administration of the criminal process and therefore any financial hardship a defendant might suffer as a result of a civil action is irrelevant to the issue of good cause. That argument is counter to current law.

We have explained that "[t]he purpose of [Rule 3:9-2] is to avoid an unnecessary criminal trial of a defendant who fears that a civil claimant will later use his plea of guilty as a devastating admission of civil liability." Stone v. Police Dep't of Keyport, 191 N.J. Super. 554, 558 (App. Div. 1983). What constitutes good cause that supports a civil reservation under Rule 3:9-2 is a question that should be answered with the rule's purpose in mind.

This question has not been extensively discussed in our case law. In State v. Haulaway, Inc., 257 N.J. Super. 506, 508-09 (App. Div. 1992), defendants negotiated a plea and pled guilty to three counts of a forty-two count indictment charging, among other offenses, racketeering, theft, and falsifying records. Id. at 507. Four months after defendants pled guilty, they moved for an order granting them a civil reservation, which the trial court granted over the State's objection. Id. at 508. "Defendants concede[d] that although they discussed a [civil reservation] with the Attorney General's Office, the State never agreed to such an order and its entry never became [a] condition of their pleading guilty in accordance with their plea agreements." Ibid. We reversed the trial court's grant of a civil reservation. We explained

that "good cause" exists for a no-civil-use agreement when such an agreement is necessary to remove an obstacle to a defendant's pleading guilty to a criminal charge. That "good cause" does not exist in the present case because defendants pleaded guilty with knowledge that the State might object to a no-civil-use order and without conditioning their pleas on the entry of such an order. If there could be any other "good cause" for a no-civil-use order, defendants have not shown that it exists in the present case.

[Id. at 508-09.]

Significantly, in Haulaway, we did not exclude the possibility that good cause for a civil reservation might exist in a circumstance other than when a defendant's plea is expressly conditioned on such an order. Rather, we stated explicitly that if there could be any other "good cause," defendants had not shown that it existed. Id. at 509.

We noted other circumstances that constituted good cause in State v. Tsilimidos, 364 N.J. Super. 454, 459 (App. Div. 2003)

The relative ease with which [no-civil-use orders] are granted [in municipal court] promotes pleas in traffic cases while at the same time protecting the interests of the motor vehicle owner and driver and the insurance carriers in the related civil case. Similarly, while the standard is properly higher in criminal cases heard in Superior Court, "good cause" may, nevertheless, be shown to grant a reservation where the civil consequences of a plea may wreak devastating financial havoc on a defendant. At the same time a reservation may eliminate an obstacle to a plea and avoid an unnecessary criminal trial. State v. Haulaway, 257 N.J. Super. 506, 508 (App. Div. 1992); Stone v. Keyport Boro. Police Dep't., 191 N.J. Super. 554, 558 (App. Div. 1983); State v. La Russo, 242 N.J. Super. 376, 379-80 (Law Div. 1990).

The Supreme Court recently cited Haulaway and Tsilimidos as cases providing guidance on what constitutes good cause to support entry or denial of a civil reservation, though the issue before the Court involved Rule 3:9-2's municipal court counterpart, Rule 7:6-2(a)(1). Maida v. Kuskin, 221 N.J. 112, 124-25 (2015). After discussing the facts and holding in Haulaway, the Supreme Court explained

Similarly, when a defendant offered no reason to support his request for a civil reservation to his guilty plea to harassment, the trial judge properly denied the request, although the court suggested that good cause may exist if the defendant contends that the civil consequences of a guilty plea could cause devastating financial harm. [Tsilimidos, supra, 364 N.J. Super. at 459-60.]

[Id. at 125.]

Here, the victim relies on two Law Division cases, State v. La Russo, 242 N.J. Super. 376 (Law Div. 1990) and State v. Schlanger, 203 N.J. Super. 289 (Law Div. 1985), as authority for the propositions that good cause "relates only to matters of concern in the administration of the criminal process in connection with the taking of the plea[,]" La Russo, supra, 242 N.J. Super. at 379, and "personal hardship to a defendant in a subsequent civil proceeding does not constitute good cause[,]" ibid., (citing Schlanger, supra, 203 N.J. Super. at 294). Neither case constitutes binding precedent and both were decided before our decision in Tsilimidos and the Supreme Court's decision in Maida. 2

The victim attempts to distinguish Maida on the ground that it involved Rule 7:6-2(a)(1), not Rule 3:9-2. We find that distinction legally insignificant. The Supreme Court in Maida cited both Haulaway and Tsilimidos as providing guidance on what constitutes good cause. Both cases involved Rule 3:9-2.

We also note that precluding the use of a plea in a civil action where the plea can wreak financial havoc is consistent with the purpose of Rule 3:9-2, namely, "to avoid an unnecessary criminal trial of a defendant who feels that a civil claimant will later use his plea of guilty as a devastating admission of civil liability." Stone, supra, 191 N.J. Super. at 558.

In the case before us, plaintiff does not dispute that she prepared a civil action and demanded of defendant $20,000,000. While ruling on defendant's civil reservation motion, the trial court explained that, among other reasons, the devastating financial consequences defendant faced in this civil action constituted good cause for entering the civil reservation order. We find no error in that ruling.

The victim next argues that defendant did not establish good cause for the civil reservation because he knew she would object to it and he did not make the civil reservation a condition of his plea. Significantly, the trial court found, and the victim does not dispute, "that defendant has demonstrated that he would not have taken the plea without this position by the State, and that, it was, therefore, not necessary to make the civil reservation a condition of the plea agreement." Thus, as a condition of the plea agreement, defendant bargained for and received the right to have the trial court adjudicate the merits of his request for a civil reservation without opposition from the State.

The State's agreement that defendant could move for a civil reservation without opposition from the State, and the court's acceptance of that aspect of the plea bargain, eliminated an obstacle to the plea and avoided subjecting the State to the time and expense, and the victim to the distress, of a lengthy criminal trial, thereby serving the purpose of Rule 3:9-2. Those facts distinguish this case from Haulaway and Tsilimidos, cases in which defendants entered pleas without any reference to any aspect of Rule 3:9-2.3

For the foregoing reasons, we affirm the trial court's order granting defendant's application for a civil reservation.

Affirmed.

1 "A victim of a crime shall be entitled to those rights and remedies as may be provided by the Legislature." N.J. Const. art. I, 22. The Legislature has declared that, among other rights, crime victims are entitled "[t]o appear in any court before which a proceeding implicating the rights of the victim is being held, with standing to file a motion or present argument on a motion filed to enforce any right conferred herein by Article I, paragraph 22 of the New Jersey Constitution, and to receive an adjudicative decision by the court on any such motion." N.J.S.A. 52:4B-36(r).

2 The Supreme Court's "expression of opinion on a point involved in a case, argued by counsel and deliberately mentioned by the court, although not essential to the disposition of the case . . . becomes authoritative[] when it is expressly declared by the court as a guide for future conduct." State v. Rose, 206 N.J. 141, 183 (2011) (quoting 21 C.J.S. Courts 230 (2006)); see also, Rule 7:6-2(a)(1); State v. Breitweiser, 373 N.J. Super. 271, 282-83 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).

3 In view of our disposition, we need not determine whether, were we to accept the victim's argument, the State's agreement to take no position on defendant's application confirmed by the trial court before it accepted defendant's plea was illusory, thus entitling defendant to withdraw his plea.