STATE OF NEW JERSEY v. JESSE CASTILLO

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2556-04T52556-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESSE CASTILLO,

Defendant-Appellant.

 

Submitted October 18, 2006 - Decided

 
Motion for Reconsideration Granted December 22, 2006

Amended Opinion Decided -

Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-03-0265-I.

Jesse Castillo, appellant pro se.

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A Passaic County Grand Jury indicted defendant Jesse Castillo on the following charges: third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1) (count one); second-degree eluding, N.J.S.A. 2C:29-2b (count two); and fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1) (count three). He was also charged with several municipal court offenses. On June 4, 2004, defendant pleaded guilty to count two, in return for a sentencing recommendation by the State of a flat seven-year sentence and dismissal of the municipal court offenses and counts one and three of the indictment.

At sentencing, pursuant to the plea agreement, the court imposed a flat seven-year prison term concurrent with a ten-year prison term defendant had recently received in Hudson County for a robbery conviction; the judge also ordered restitution of $3552.30, and increased defendant's jail credits from 301 days to 362 days. On appeal, defendant raises the following seven points:

POINT ONE:

EXCULPATORY EVIDENCE WAS PROCURED BY WAYNE POLICE IN A MANNER INCONSISTENT WITH PROCEDURE THEREBY INVALIDATING THE INTEGRITY OF SUCH EVIDENCE AND TWO CRIME SCENES.

POINT TWO:

BOTH HUDSON AND PASSAIC COUNTY CRIMINAL MATTERS SHOULD HAVE BEEN CONSOLIDATED FOR PURPOSES OF PLEA BARGAINING OR CONSOLIDATED/ DISPOSITION DESPITE THE REQUEST OF DEFENDANT TO HIS COUNSEL R. 3:25A-1.

POINT THREE:

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE LOWER COURT PROCEEDINGS.

POINT FOUR:

THE COUNTY PROSECUTOR CONDUCTING THE GRAND JURY PROCEEDINGS AND OVERSTEPPED ITS AUTHORITY IN LEADING AND GUIDING WITNESSES THROUGHOUT SAID PROCEEDINGS AND PREVENTED SAID PERSONS TO TESTIFY FROM DIRECT KNOWLEDGE AS REQUIRED UNDER N.J.S.A. 35:4-16.

POINT FIVE:

DEFENDANT DID NOT ENTER A VOLUNTARY PLEA.

POINT SIX:

THE CHARGES OF ELUDING SET FORTH ON COUNT TWO IN THE INDICTMENT WAS AGAINST THE MERITS OF EVENTS ON SEPTEMBER 6, 2003, AT THE KINGS INN HOTEL.

POINT SEVEN:

MR. CASTILLO'S SENTENCE WAS MANIFESTLY EXCESSIVE.

We have reviewed the record in light of defendant's contentions and the applicable law. We affirm.

We begin with the facts that led to the indictment as they were presented to the grand jury on March 8, 2004. Wayne police department Patrolman Daniel Daly testified that at approximately 1:00 a.m. on September 6, 2003, he was on patrol in the parking lot of the Kings Inn in Wayne, checking registrations of parked vehicles. When he checked the registration of a 1997 Ford Explorer with license plate number NXR-70W, he learned that the vehicle had been reported stolen the previous day; the Kearny police department had entered it in the police data base as a "felony vehicle" that may have been used in connection with a robbery that occurred a day or two earlier in Kearny. On receiving that information, Daly approached the motel desk manager and asked if the Explorer belonged to a motel guest. The motel's check-in forms showed that defendant had listed a vehicle with that license plate number when he checked in.

When he obtained that information, Daly contacted his lieutenant, who advised him to "stand by" while the lieutenant confirmed the information from the Kearny police department and until Kearny detectives arrived. Daly, along with Officer Ellis, who was in his own patrol car, then positioned their vehicles in the parking lot adjacent to Kings Inn to watch the Ford Explorer. When, minutes later, Daly saw the vehicle attempting to leave the parking lot, he moved his patrol vehicle to block the parking lot exit and keep the Explorer from leaving. The officers did not have their patrol vehicle lights or sirens on.

Instead of stopping, the driver of the Explorer, who was later identified as defendant, "accelerated and rammed" Officer Daly's patrol vehicle. Daly then drew his service weapon, ordered the driver to get out of the vehicle, handcuffed him, searched him, and advised him of his Miranda rights. On searching defendant, the officer found defendant's identification card, along with $1513 in cash. The estimate for the damage to Daly's vehicle was $3552.30.

Officer John View of the Kearny police department testified that pursuant to a search warrant, he searched the room defendant had occupied at the Kings Inn, where he located three baggies containing crack cocaine, a glass pipe, of a type commonly used to smoke crack cocaine, and a syringe. Based on this and other testimony, a Grand Jury indicted defendant.

Against this factual setting we examine defendant's points on appeal. We begin with his argument that his guilty plea was not voluntary.

At the time he entered his guilty plea, defendant was informed by the court that he faced a potential ten-year prison term, in addition to a potential discretionary extended term based on his prior criminal record, which could increase his maximum sentence to twenty years. He was also told that under the terms of the plea agreement, his sentence would run concurrent with rather than consecutive to the sentence he would receive for his robbery conviction in Hudson County.

In response to questions by the court, defendant acknowledged that his guilty plea was voluntary, and that no promises or threats had been made to induce him to plead guilty. His attorney then reviewed his plea form with him. In that form, defendant acknowledged that he was pleading guilty voluntarily without threats of force or coercion. In his factual basis for the plea, defendant admitted that he attempted to drive out of the parking lot, despite that the police had signaled him to stop by blocking the exit with the patrol vehicle.

Based on defendant's testimony at the plea hearing, we conclude that his guilty plea was entered knowingly and voluntarily, without threats of force or coercion. See R. 3:9-2; R. 3:9-3(e). Defendant understood the nature of the charges and the consequences of his plea. See State v. Johnson, 182 N.J. 232, 236 (2005). He has not demonstrated a manifest injustice so as to overcome the strong public policy interest in finality of guilty pleas. Id. at 237; State v. McQuaid, 147 N.J. 464, 487 (1997).

In point one of his brief, defendant claims the police improperly collected physical evidence against him at both the Passaic and Hudson County crime scenes. First, the argument as to the Hudson County crime scene is not part of this appeal. Second, and significantly, by entering a guilty plea, defendant has waived that claim. See State v. Knight, 183 N.J. 449, 470 (2005); State v. Owens, 381 N.J. Super. 503, 508 (App. Div. 2005). A guilty plea constitutes the waiver of alleged constitutional defects either in the investigation leading to the charges or in the proceedings themselves prior to entry of the plea. Pressler, Current N.J Court Rules, comment 2 on R. 3:9-2 (2007). A knowing and voluntary guilty plea precludes a defendant from raising unpreserved nonjurisdictional claims of deprivation of constitutional rights occurring in the proceedings resulting in the conviction. Ibid.

Consequently, defendant has waived his right to challenge the procedures used by the police in gathering evidence against him. Similarly, he has waived his objections to the manner in which the prosecutor conducted the Grand Jury proceedings (point four of defendant's brief), as well as his claim that the facts did not warrant the charges established in the indictment (point six of defendant's brief). Those issues should have been raised prior to defendant's guilty plea, and his failure to preserve those issues is fatal to his arguments on appeal.

That takes us to defendant's argument in point three, that he was denied effective assistance of counsel. Because this argument requires going outside the record, we deny his claim without prejudice to his right to raise it in a post-conviction relief application. See State v. Preciose, 129 N.J. 451, 460 (1992).

Next, we address point two of defendant's brief, where he claims that both the Hudson and Passaic County criminal actions should have been consolidated for purposes of plea bargaining. His arguments with regard to that point are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that while the cases were not formally consolidated, in each case the other was a significant factor in the respective plea agreements. At both the Hudson and Passaic County plea hearings, it was agreed that the sentence for eluding in Passaic County would run concurrent with the robbery sentence imposed in Hudson County. To accomplish that, the Passaic County sentencing date was adjourned to allow the court in Hudson County to sentence defendant first so the Passaic County sentence could be imposed concurrent with the Hudson County sentence. While under some circumstances defense counsel is required to move for consolidation when a defendant has indictments pending in more than one county, the factors expressed in R. 3:25A-1 did not require consolidation under the circumstances of this case. Cf. State v. Rountree, 388 N.J. Super. 190, 212-15 (App. Div. 2006) (failure to file motion for consolidation not ineffective assistance of counsel).

Finally, we address defendant's sentence. The court imposed a flat seven-year term in accordance with the plea agreement. In imposing that sentence, the court considered the extent of defendant's prior criminal record, that the offense was committed against a law enforcement officer, and the need for deterrence. The sentence imposed was not an abuse of discretion, see State v. Roth, 95 N.J. 334, 363-65 (1984) (sentence may be modified by appellate court when sentencing court makes "clear error of judgment that . . . shocks the judicial conscience"), nor was it inconsistent with the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005).

Affirmed.

 

On June 9, 2004, defendant pleaded guilty to second-degree robbery in Hudson County. See State v. Castillo, A-1328-04; A-4297-04 (App. Div. Nov. 17, 2006). On August 26, 2004, the court imposed a ten-year prison term with an eighty-five percent period of parole ineligibility. In his appeal from that conviction, defendant challenged his jail credits; in this appeal, he does not contest his jail credits.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The judgment of conviction lists only two aggravating factors; it makes no reference to the need for deterrence.

(continued)

(continued)

9

A-2556-04T5

November 17, 2006

 

February 1, 2007