STATE OF NEW JERSEY v. CHARLES TORTORIELLO III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1518-05T51518-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES TORTORIELLO III,

Defendant-Appellant.

__________________________________

 

Argued: October 11, 2006 - Decided March 21, 2007

Before Judges Kestin and Weissbard.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Municipal Appeal No. 4550.

C. Robert Sarcone argued the cause for appellant.

Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Hsieh, of counsel and on the letter brief).

PER CURIAM

Defendant, Charles Tortoriello III, appeals from an October 6, 2005 Law Division order, affirming, on de-novo-on-the-record appeal, see R. 3:23-8(a), the Little Falls Municipal Court's denial of defendant's petition for post-conviction relief, see R. 7:10-2. We affirm.

On July 19, 1989, defendant pled guilty to a charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50. According to his verified petition in the instant matter, the sentence imposed consisted of a $250 fine, $15 court costs, $100 surcharge, driver's license suspension for six months, and a twelve-hour IDRC enrollment. There was no appeal from that conviction; and no petition for post-conviction relief was filed prior to the instant petition dated October 8, 2004.

As the grounds for seeking post-conviction relief, defendant posited, as he does on appeal, that he was unrepresented in the DWI proceedings, was indigent, was not advised of his right to have a public defender assigned to represent him, and provided no factual basis at the time for the entry of his plea. He has taken the position that the municipal court judge at the time failed to discharge his duties in these respects.

Following his 2004 request for "a tape/stenographic recording of the proceedings" he was challenging, in order to provide an established basis for his application, defendant learned from the municipal court administrator that "tapes are no longer available from 1989." After considering the papers and oral argument, Judge Corradino, who now presides in the municipal court in place of the judge who presided in 1989, denied the application for post-conviction relief.

On de-novo-on-the-record appeal, Judge Subryan also denied the relief sought for reasons articulated in a comprehensive, formal, written opinion. After reciting the procedural history, Judge Subryan noted that, in 1995, defendant was convicted of his second DWI offense and was sentenced accordingly. Judge Subryan also noted that defendant received a third summons for DWI in May 2004 and, "fac[ing] the enhanced penalties mandated by N.J.S.A. 39:4-50 for a third-time offender . . . . filed for post-conviction relief" in respect of the first conviction, to "prevent[] [it] from being used to enhance the penalties for his most recent violation."

In evaluating defendant's arguments, Judge Subryan determined that defendant had failed to satisfy the excusable neglect exception from the five-year time bar for such petitions. See R. 7:10-2(b)(2). The opinion described defendant's contentions as being that "his lack of knowledge concerning the legal procedures available to him constitutes excusable neglect . . . , and alternatively that his guilty plea in 1989 was not knowing and voluntary and therefore resulted in an illegal sentence which is exempt from the procedural time limit."

For reasons cogently expressed in his opinion, Judge Subryan determined that the excusable neglect argument was lacking in merit. In reaching this conclusion, he found "that the facts in this case call into question the truthfulness of [defendant's] allegations." He also gave considerable weight to the amount of time that had passed, and assigned the absence of a verbatim record to the very long delay in challenging the 1989 conviction, for which delay defendant bore sole responsibility. The judge determined, for well-stated reasons, that "the interests of justice in this case do not require a relaxation of the rule."

As regards defendant's assertion, pursuant to a stated exception to the time-bar of the rule, see R. 7:10-2(b)(1), that the sentence imposed was illegal because the plea was not entered knowingly and voluntarily, Judge Subryan found that defendant's factual assertions regarding the procedural circumstances attending the first municipal court proceeding and the plea were self-serving. He found, as well, that those assertions were not credible because defendant had never raised them before, even as early as in the 1995 proceeding that led to his second conviction, in which he was represented by counsel, when the recording of the 1989 proceeding might still have been available. Judge Subryan concluded that, given the discredit cast upon defendant's position by reason of his own delay, defendant had not sustained his burden of establishing a basis for the grant of the post-conviction relief he sought. See State v. McQuaid, 147 N.J. 464, 483 (1997).

Defendant raises the same arguments on appeal as he advanced in the Law Division. They have been framed before us as follows:

POINT I DEFENDANT-PETITIONER IS ENTITLED TO POST-CONVICTION RELIEF PURSUANT TO RULE 7:10-2, AS THERE WAS A FAILURE OF THE COURT TO ADVISE THE DEFENDANT OF HIS RIGHT TO COUNSEL OR TO ASSIGN COUNSEL, AS HE WAS INDIGENT.

POINT II THE FAILURE OF THE COURT TO QUESTION DEFENDANT TO ESTABLISH AN ADEQUATE FACTUAL BASIS FOR THE ENTRY OF THE PLEA AND TO ESTABLISH THAT THE PLEA WAS ENTERED VOLUNTARILY AND KNOWINGLY WAS VIOLATIVE OF THE DEFENDANT-PETITIONER'S RIGHTS UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS AND RULE 7:6-2(a)(1).

POINT III PURSUANT TO RULE 7:20-2(b)(2), A PETITION FOR POST-CONVICTION RELIEF MUST BE FILED WITHIN FIVE (5) YEARS AFTER ENTRY OF JUDGMENT OF CONVICTION UNLESS IT ALLEGES FACTS SHOWING THAT THE DELAY WAS DUE TO EXCUSABLE NEGLECT.

POINT IV CONSIDERING ALL OF THE EVIDENCE BEFORE THE COURT ON THE DE NOVO APPEAL, DEFENDANT-PETITIONER MET THE BURDEN FOR POST-CONVICTION RELIEF BY A FAIR PREPONDERANCE OF THE EVIDENCE.

On appeal, we are bound by the trial court's mediate and ultimate findings of fact as long as those findings and conclusions are supported by substantial, credible evidence in the record. See State v. Locurto, 157 N.J. 463, 470-72 (1999); State v. Johnson, 42 N.J. 146, 160-62 (1964). Given the findings made and the evaluative determinations that flowed from them, we are in substantial agreement with the reasons for decision articulated by Judge Subryan.

Accordingly, the October 6, 2005 order denying the petition for post-conviction relief is affirmed.

 

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A-1518-05T5

March 21, 2007