STATE OF NEW JERSEY v. MEDHAT EL-SAYED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MEDHAT EL-SAYED,

Defendant-Appellant.

________________________________________________

February 16, 2016

Argued January 12, 2016 Decided

Before Judges Yannotti and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 12-05-0905, 12-08-1503, and 13-03-0596.

Peter R. Willis argued the cause for appellant (Law Office of Peter R. Willis, LLP, attorneys; Mr. Willis, on the brief).

Jennifer J. Ljungberg, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Ljungberg, on the brief).

PER CURIAM

Defendant Medhat El-Sayed appeals from the April 4, 2014 order of the Law Division denying his motion to withdraw his guilty plea. He claims

it was in the interest of justice for the court to grant mr. el-sayed's motion to withdraw his guilty plea as the plea was not made knowingly or voluntarily.

We have considered this argument and conclude that defendant's plea was made knowingly and voluntarily. Therefore, we affirm.

In April 2012, a grand jury sitting in Hudson County returned an indictment charging defendant with five counts of first-degree robbery, and related weapons and theft counts. In August 2012, a second grand jury returned an indictment charging defendant with three counts of possession with intent to distribute marijuana. In February 2013, a third grand jury returned an indictment charging defendant with second-degree unlawful possession of a handgun, fourth-degree possession of a defaced firearm, third-degree resisting arrest, and fourth-degree obstructing the administration of law.

On June 4, 2013, defendant resolved all three indictments with guilty pleas entered pursuant to a negotiated plea agreement. On the first indictment, defendant pled guilty to one count of first-degree robbery to be treated as a second-degree crime for sentencing. The State agreed to seek a sentence of eight years, while defendant would ask for seven. In satisfaction of the second and third indictments, defendant pled guilty to third-degree possession of marijuana with intent to distribute and second-degree unlawful possession of a weapon, with the understanding that all sentences would run concurrently with the robbery sentence.

At the very outset of defendant's plea allocution, Judge Paul M. DePascale noted that defendant was not a citizen of the United States and inquired whether defendant had consulted with an immigration attorney. Plea counsel responded that he had referred defendant to an immigration attorney and defendant's father was speaking with him, but defendant wanted to proceed with the plea. Judge DePascale then addressed defendant directly

THE COURT: Sir, just so that we're clear, sir, you understand that a conviction of an armed robbery is an aggravated felony under Federal law and will subject you to mandatory deportation?

THE DEFENDANT: Yes.

THE COURT: You understand that?

THE DEFENDANT: Yes.

Defendant indicated that he wanted to plead guilty and that no one had threatened him or put any kind of pressure on him to do so. Defendant then provided a factual basis for all three guilty pleas: he admitted that on October 17, 2011, in North Bergen, he was armed with a handgun and robbed an individual of money; on October 2, 2012, in Jersey City, he possessed a handgun without a permit; and on March 27, 2012, again in Jersey City, he possessed marijuana within 1,000 feet of a school, intending to distribute some of it to another person.

Sometime after the entry of his guilty pleas, defendant dismissed plea counsel and substituted current counsel. In October 2013, defendant moved to withdraw his pleas based on a report by psychiatrist Dr. Jacob Jacoby.

A hearing on defendant's motion was held on April 4, 2014. After reviewing Dr. Jacoby's report and hearing oral argument, Judge DePascale first noted that he had a lengthy discussion on the record with defendant and "[h]e understood completely what I was saying and responded appropriately."

The judge applied the four factors outlined in State v. Slater, 198 N.J. 145 (2009). He first determined that defendant did not assert a claim of innocence. He noted that although counsel stated in his brief that defendant did not commit the crime, the claim was unsupported by competent evidence.

The judge next found Dr. Jacoby's report offered "little, if any, insight" in support of defendant's claim, and was contradicted by other evidence, including defendant's enrollment at New Jersey City University where he was earning B's and C's at the time. The judge noted that three weeks after defendant entered his guilty pleas he was interviewed for his presentence report and provided "specific information as to each indictment along with a clear confession of his guilt on each case."

The judge denied the motion to vacate, concluding there was no evidence that defendant was impaired in any way when he entered the guilty pleas and that those pleas were "knowingly, intelligently and voluntarily entered."

On April 11, 2014, Judge DePascale sentenced defendant consistent with the provisions of the plea agreement. He rejected the State's request for eight years, and imposed a seven-year sentence on the armed robbery charge with the other sentences to run concurrently.

Absent "an abuse of discretion which renders the lower court's decision clearly erroneous," we must affirm a trial court's decision on a motion to withdraw a guilty plea. State v. Simon, 161 N.J. 416, 444 (1999). The Slater Court directed trial judges 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." Slater, supra, 198 N.J. at 157-58. None of these factors is mandatory, and "if one is missing, that does not automatically disqualify or dictate relief." Id. at 162.

As to the first factor, "a colorable claim of innocence is one that rests on 'particular, plausible facts' that, if proven in court, would lead a reasonable factfinder to determine the claim is meritorious." State v. Munroe, 210 N.J. 429, 442 (2012) (quoting Slater, supra, 198 N.J. at 159). Even though a lesser showing is required for presentence withdrawal motions made within a relatively short period after entry of the pleas, compared to such motions filed after sentencing, id. at 442-43, defendant has failed to propound even a colorable claim of innocence. While defendant asserted a claim of innocence in his Law Division brief, he has not reasserted that claim on appeal.

More importantly, defendant failed to present "specific, credible facts and, where possible, point to facts in the record that buttress [his] claim [of innocence]" as required by Slater. Slater, supra, 198 N.J. at 158. "A core concern underlying motions to withdraw guilty pleas is to correct the injustice of depriving innocent people of their liberty." Ibid. Defendant's failure to assert a claim of innocence suggests there is no injustice to correct.

The second Slater factor requires an examination of defendant's reasons for withdrawal and "dovetails with his assertion of innocence[.]" Id. at 163. Defendant claims that a traumatic brain injury resulted in cognitive impairments which rendered him unable to comprehend the consequences of pleading guilty. This claim finds no support in the record or in Dr. Jacoby's report.

Dr. Jacoby noted defendant sustained a closed head injury as a result of an assault on March 19, 2011. Defendant claimed he lost consciousness and was hospitalized on March 25, 2011. As to whether defendant was competent to make decisions on his own behalf, Dr. Jacoby found

It would appear from Mr. [El-Sayed's] present behavioral presentation of psychosis, history avoidance or distortion, poor insight and poor judgment, that he is in no way capable of making reasoned judgments about his own wellbeing or about matters relating to his own destiny. Presumably, this psychiatric handicap also had already extant in the past when he had to make pleas regarding his involvement, innocence, or guilt in legal infractions.

Defendant's head injury occurred in 2011, two years before he entered his guilty pleas. Since that time, defendant graduated from high school and enrolled in a college where he performed as an average student. Defendant's plea counsel had no apparent difficulty in communicating with his client, and the court questioned defendant extensively during his allocution as to his understanding of the pleas he was entering and their consequences. Defendant provided a clear factual foundation for his guilt during his allocution and the record shows no indication of the "psychiatric handicap" Dr. Jacoby speculates may have affected defendant's judgment. Three weeks after the plea hearing, defendant provided details of each of his crimes when interviewed for the presentence report.

We are satisfied that there was no abuse of discretion in Judge DePascale's decision to deny defendant's motion to withdraw his guilty pleas, and we affirm substantially for the reasons stated in his oral decision of April 4, 2014.

Affirmed.