STATE OF NEW JERSEY v. RALPH ZARA, JR.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2482-05T32482-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RALPH ZARA, JR.,

Defendant-Appellant.

_________________________________

 

Submitted October 5, 2006 - Decided November 20, 2006

Before Judges Wefing and Yannotti.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

No. 00-014124.

Kevin G. Byrnes, attorney for appellant.

Luis A. Valentin, Monmouth County

Prosecutor, attorney for respondent

(Edward J. Quigley, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Tried to a jury, defendant was convicted of theft of movable property, a crime of the third degree, N.J.S.A. 2C:20-3a, and conspiracy to commit theft, a crime of the second degree, N.J.S.A. 2C:5-2, :20-3a. The trial court sentenced defendant on the first conviction to five years in prison, with a two-and-one-half-year period of parole ineligibility, and on the second conviction, to ten years in prison, with a five-year period of parole ineligibility. The trial court directed the terms be served concurrently. Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Zara, No. A-2229-01 (App. Div. April 23, 2003). Defendant's petition to the Supreme Court for certification was denied. State v. Zara, 177 N.J. 572 (2003).

Certain facts must be set forth as to the circumstances surrounding defendant proceeding to trial in order to analyze the contentions defendant advances on appeal. Defendant was employed at the Waterford Wedgewood warehouse and was charged with participation in a scheme with his brother-in-law, also employed at the warehouse, to ship goods from the warehouse to his house. When an inventory shortage was discovered, the police were notified. Defendant eventually confessed to his involvement and was arrested and indicted.

On February 26, 2001, defendant appeared before the trial court, and the assistant prosecutor placed upon the record the terms of a negotiated plea of guilty to which the State and defendant had agreed: in return for defendant's plea of guilty to one count of theft, the State agreed to recommend a sentence of four years in prison, with no period of parole ineligibility, to seek a dismissal of the conspiracy charge and to recommend a "symbolic restitution," based upon defendant's ability to pay. Defendant and his attorney agreed that the assistant prosecutor had accurately stated the terms of the agreement and defendant provided a factual basis.

This proceeding occurred before a judge other than the judge to whom the matter had been assigned; that judge was tied up in handling another matter and not available to preside over the plea proceedings. The next hearing in the matter, however, occurred before the judge to whom the matter had been assigned at the outset. That judge was unwilling to accept the plea as it was structured; specifically, he was unwilling to accept the provision for only "symbolic restitution," particularly in light of the significant value of the goods that had been stolen from the warehouse. The trial judge was concerned that it was unfair to order "symbolic restitution" because there was always a possibility that defendant might come into funds in the future and then have the ability to repay. He, therefore, proposed that the plea bargain be modified to provide for entry of a civil judgment against defendant in the amount of $52,070.50, defendant's proportionate share of the amount stolen from the warehouse. The trial judge did not propose to make any change in the four-year period of incarceration. After outlining his concerns, the judge permitted defendant to confer for a period of time with his attorney before deciding how he wished to proceed. After that conference, the attorney announced that defendant was unwilling to accept this modification and that defendant would be proceeding to trial. At trial, defendant was convicted.

After this court affirmed defendant's convictions and sentence, and the Supreme Court denied certification, defendant filed a petition for habeas corpus in federal court. After that court denied habeas corpus, defendant filed a PCR petition that only challenged the circumstances surrounding the trial court's rejection of his initial plea of guilty. After reviewing the parties briefs and hearing oral argument, the trial court denied defendant's petition.

On appeal, defendant raises the following contentions:

POINT I THE PCR COURT'S RULING THAT THE DEFENDANT WAS PROCEDURALLY BARRED FROM RAISING HIS CLAIM--THAT HIS PLEA RETRACTION WAS NOT KNOWING AND VOLUNTARY--BECAUSE IT HAD BEEN PREVIOUSLY ADJUDICATED IS ERRONEOUS.

POINT II THE DEFENDANT'S RETRACTION OF HIS PLEA AGREEMENT WAS NOT MADE VOLUNTARILY AND KNOWINGLY; THE PLEA AGREEMENT, AS MODIFIED BY THE COURT, SHOULD BE ENFORCED.

POINT III THE DEFENDANT'S SENTENCE SHOULD BE VACATED AND HE SHOULD BE RESENTENCED

A. THE DEFENDANT SHOULD BE RESENTENCED BECAUSE THE PCR COURT REBALANCED THE AGGRAVATING AND MITIGATING FACTORS AND MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE BEYOND A SENTENCE THAT COULD BE IMPOSED BASED SOLELY ON THE JURY'S FINDINGS OF FACT.

B. THE DEFENDANT SHOULD BE RESENTENCED BECAUSE THE PCR COURT FAILED TO CONSIDER THAT THERE WAS A REDUCTION IN AGGRAVATING FACTORS BASED ON STATE SUPREME COURT LAW.

We do not find it necessary to consider whether the trial court correctly concluded that defendant's arguments addressed to the trial judge's refusal to accept the terms of the original plea agreement are procedurally barred. It is clear that the record provides absolutely no support for his contention that his plea withdrawal was not knowing and voluntary. Indeed, it conclusively demonstrates otherwise.

We note, first, the plea form completed by defendant when he entered his initial plea of guilty. On that form, defendant indicated he understood that the judge was "not bound by any promises or recommendations of the prosecutor and that the judge [had] the right to reject the plea before sentencing . . . and the right to impose a more severe sentence." He also indicated on the plea form he understood that if the judge did decide to impose a more severe sentence, he could take back his plea and that anything he said in furtherance of his guilty plea could not be used against him if he proceeded to trial.

Further, after learning that the judge was unwilling to accept the recommendation for "symbolic restitution," defendant was given the opportunity to confer with his attorney. After conferring with defendant, his attorney advised the trial judge on the record that defendant was unwilling to accept the proposed modification of a consent judgment. The judge then noted for the record that defendant was withdrawing his guilty plea and entering again a plea of not guilty and that anything defendant had said at the time the original guilty plea was entered could not be used against him; he then set a firm trial date. The following colloquy then occurred between defendant and his attorney:

[DEFENSE COUNSEL]: Judge, I just want to make sure, and maybe I should put this on the record, that Mr. Zara understands the implications of what he has done here. And I want it indicated, as I have told him privately, that this is against my advice. He is subjecting himself up to a significantly higher jail sentence, perhaps as high as 20 years in jail by rejecting and intending to go to trial on this.

And I want him to understand, as Your Honor has said, that this is not an instance where he will just take the flat four on the day of trial. Do you understand that, Mr. Zara?

[DEFENDANT]: Yes

[DEFENSE COUNSEL]: Okay

THE COURT: I'm up to four convictions, I really don't have to go any further. But he is extended term eligible. This is a --

[DEFENSE COUNSEL]: It's a second degree indictment

THE COURT: -- second degree offense.

[PROSECUTOR]: Correct

THE COURT: So, he is facing 20 years in jail with a 10 year period of parole ineligibility.

[PROSECUTOR]: That is correct.

THE COURT: All right. You understand that?

[DEFENDANT]: Yes.

Defendant was clearly advised of the consequences of rejecting the modified plea agreement put forth by the trial court. He reached his decision after being given the opportunity to confer with his attorney and in the face of his attorney's advice to the contrary.

Defendant also contends that he should be permitted at this juncture to accept the modified plea bargain put forth in 2001. The transcript of the hearing, however, set forth above, demonstrates that defendant was advised that those terms would not be open to defendant on the day of trial, let alone some five years later.

Defendant's remaining contentions are directed to his sentence. When the trial court imposed sentence on defendant originally, it cited four aggravating factors: the risk defendant would commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's prior criminal record and the seriousness of the offenses of which he had been convicted, N.J.S.A. 2C:44-1a(6); the need for deterrence, N.J.S.A. 2C:44-1a(9); and that imposition of a fine or penalty or restitution without incarceration would be perceived as the cost of doing business, N.J.S.A. 2C:44-1a(11). The sentencing court found no mitigating factors.

In between the time this court affirmed defendant's convictions and sentence and the trial court heard defendant's petition for PCR, the Supreme Court decided State v. Dalziel, 182 N.J. 494, 502 (2005), in which it held that aggravating factor #11 only applied when a trial court was balancing a non-custodial term against a custodial term and did not apply when a court was considering a shorter as opposed to a longer custodial term. The PCR court recognized this intervening change in the law but properly concluded that even with its subtraction, the remaining aggravating factors so predominated over the non-existent mitigating factors that defendant's sentence was entirely justified. Defendant's argument to the contrary lacks merit. R. 2:11-3(e)(2).

The order under review is affirmed.

 

(continued)

(continued)

9

A-2482-05T3

November 20, 2006

 


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