STATE OF NEW JERSEY v. PABLO A. VILORIO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1610-06T51610-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PABLO A. VILORIO, a/k/a VILORIO M. ARVELO, a/k/a LUIS M. ARVELO, a/k/a LUIS M. GOMEZ, a/k/a VILORIO PARVELLO, and a/k/a PABLO ARVELO-VILORIO,

Defendant-Appellant.

__________________________________

 

Argued: September 24, 2007 - Decided October 31, 2007

Before Judges C.S. Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 96-06-723.

Abraham Borenstein argued the cause for appellant (Abraham Borenstein & Associates, attorneys; Mr. Borenstein and Joshua I. Heller, on the brief).

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

PER CURIAM

Defendant Pablo A. Vilorio appeals the denial of his motion to vacate his June 9, 1997, plea to possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(b)(2) on the ground that the State withheld potentially exculpatory information relating to the arresting officer's corruption. We affirm.

On March 19, 1996, Detective James Marshall and other officers of the New Brunswick Police Department executed a search warrant at a Ward Street home in New Brunswick. They entered the home by force and found defendant in the living room. The officers found two bags of cocaine in the house and multiple forms of identification with a variety of names but all with pictures of defendant. While Marshall searched the house, he was paged by an informant who stated that he observed defendant go to his vehicle with a paper bag containing cocaine and put it under the seat of his car, which was parked a block away in a garage on Joyce Kilmer Avenue.

Marshall returned to the Ward Street home and searched for keys to the car, described as a dark blue Celica with New Jersey plate number F66-75E. Marshall located two sets of keys and asked defendant about them. Defendant said that the keys had been in the house for a long time and he had no vehicles. Marshall took the keys to the vehicle and drove it to police headquarters. He then asked defendant for permission to search the car and defendant again denied owning it. Marshall then obtained a search warrant and found 150 bags of cocaine. Although the registration was not on file, the Vehicle Identification Number indicated that the vehicle was owned by defendant.

Defendant was indicted on June 6, 1996, in a two-count indictment charging him with third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1) and second-degree possession of cocaine with intent to distribute in a quantity of one-half ounce or more in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(2). After a motion to suppress the evidence was denied, the defendant agreed on June 9, 1997, to plead guilty to second-degree possession with intent to distribute. The prosecutor agreed to recommend the following sentence: five years with no parole disqualifier and forfeiture of all property seized, contingent on defendant having no prior convictions for drug offenses. The defendant was scheduled for sentencing on August 27, 1997, but he failed to appear and was not apprehended until January 19, 2006.

Defendant prepared a motion to retract his guilty plea on February 17, 2006, and filed a brief on April 4, 2006. In his moving papers he alleged that at the time of his plea "Marshall was being targeted in a wide-ranging corruption investigation" that began in November 1996, at least according to a September 12, 1998, article in The Star-Ledger. The article does not indicate when Marshall became a target of the investigation, which was initiated after a different officer fatally shot a suspected prostitute. However, the Middlesex County Prosecutor, in a letter to the judge presiding over the criminal proceedings against Marshall, advised the court that the New Jersey State Police investigation of Marshall began in April 1998 when a drug dealer made allegations against him. This information came from paragraph two of a September 20, 2001, affidavit of Detective Joseph Celli of the New Jersey State Police.

Marshall was ultimately indicted on December 7, 1998, and charged with conspiracy, official misconduct, drug offenses and bribery beginning on May 1, 1997, and continuing to July 31, 1998. A second indictment issued on December 7, 1998, charged Marshall with official misconduct, perjury and false swearing on July 28, 1997. A third indictment issued the same day charged Marshall with promoting prostitution and official misconduct between December 1, 1997, and August 31, 1998. The fourth and last indictment issued that day charged Marshall and others with conspiracy, official misconduct and promoting prostitution between March 1, 1998, and July 31, 1998. Marshall and others were also indicted on May 11, 1999, and charged with conspiracy, official misconduct and bribery between October 10, 1997, and March 31, 1998. Thus, Marshall was never charged with misconduct occurring at or about the time that defendant was arrested. His misconduct was alleged to have begun more than a year later but prior to the date of defendant's plea. However, the State Police only learned of Marshall's alleged corruption ten months after defendant's plea. There is no record evidence that the Middlesex County Prosecutor had any knowledge of Marshall's misconduct until it was brought to his attention by the State Police after April 1998.

In his motion to retract his plea, defendant relied on State v. Parsons, 341 N.J. Super. 448 (App. Div. 2001), in which we determined that the State violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), when it withheld information about the Marshall investigation. On September 9, 2006, the motion judge found that "defendant's guilty plea predated the commencement of the investigation of former Detective Marshall by several months." She also found that the Middlesex County Prosecutor was not aware of the Marshall investigation until after defendant's plea and no evidence in the record refuted that fact. As a consequence, she concluded that there was no basis for withdrawing the plea and the motion was without merit. This appeal followed.

Defendant raises the following issue for our consideration:

POINT I THE LOWER COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO WITHDRAW HIS GUILTY PLEA.

A plea of guilty may not be accepted by the court "without first questioning the defendant personally . . . and determining by inquiry of the defendant . . . that there is a factual basis for the plea." R. 3:9-2. Additionally, the court must determine that the plea is voluntary "and with an understanding of the nature of the charge and the consequences of the plea." Ibid. An application to withdraw a guilty plea must "be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." R. 3:21-1; State v. Fischer, 38 N.J. 40, 47-48 (1962); State v. Deutsch, 34 N.J. 190, 198 (1961). Because the record on appeal is silent as to the date of sentencing, we must presume that the motion to retract defendant's guilty plea was made before sentencing and view the application by a more liberal standard than if made after sentencing.

In deciding whether an accused would have gone to trial but for the State's concealment of exculpatory evidence, we should view the defendant's claim indulgently, recognizing that a plea of guilty is an intensely personal decision. That is particularly true where, as here, the defendant seeks to withdraw his guilty plea before sentence. Historically, we "generally exercise [our] discretion liberally [in such a case] to enable [retraction] of the plea and a trial on the merits."

[Parsons, supra, 341 N.J. Super. at 457 (quoting Deutsch, supra, 34 N.J. at 198).]

An application to withdraw a plea is committed to the sound discretion of the trial judge. State v. Huntley, 129 N.J. Super. 13, 16 (App. Div.), certif. denied, 66 N.J. 312 (1974). The judge must determine whether "the interests of justice would not be served by effectuating the agreement." R. 3:9-3(e). "After the defendant formally makes his plea, . . . his claim to be relieved of its consequences must be weighed against the strong interests of the State in its finality." State v. Taylor, 80 N.J. 353, 362 (l979). Defendant must present a plausible basis for his application. State v. Smullen, 118 N.J. 408, 416 (1990); State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992).

A defendant may seek to withdraw a plea when the prosecutor has failed to disclose potentially exculpatory evidence. Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218 (holding that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where [it] is material either to guilt or punishment, irrespective of the good faith or bad faith of the [State]"). "In order to establish a Brady violation, the defense must demonstrate: (1) the prosecutor failed to disclose the evidence, (2) the evidence was of a favorable character to the defendant, and (3) the evidence was material." Parsons, supra, 341 N.J. Super. at 454 (citing Moore v. Illinois, 408 U.S. 786, 794, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)). Although Brady concerned evidence withheld at trial, we have applied this test to evidence withheld before a plea agreement was consummated. Id. at 454; see Brady, supra, 373 U.S. at 84, 83 S. Ct. at 1194, 10 L. Ed. 2d at 218.

Defendant contends that the trial court should not have focused on the facts that he entered his guilty plea before the investigation into Marshall's conduct began and the prosecutor was not aware of Marshall's conduct at the time. Rather, he contends that the State should be charged with Marshall's knowledge of his own criminal conduct. He argues that Marshall concealed exculpatory evidence and that Marshall's actions are attributable to the prosecutor.

A prosecutor need not have actual knowledge of evidence to be charged with its concealment. For the purposes of determining whether or not evidence was improperly suppressed, a prosecutor's knowledge may be either actual or imputed. State v. Nelson, 155 N.J. 487, 498 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). Knowledge may be imputed if the prosecutor neglects to fulfill a duty to become informed of exculpatory evidence or if another person who is considered a representative of the prosecutor fails to disclose exculpatory evidence to the prosecutor. Id. at 498-500.

In Kyles v. Whitley the U.S. Supreme Court held that an "individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf, including the police." 514 U.S. 419, 437, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995). A prosecutor who fails to discharge that duty will nevertheless be imputed with knowledge of the evidence. Id. at 441, 115 S. Ct. at 1569, 131 L. Ed. 2d at 510. The Third Circuit explained that the scope of information that a prosecutor must collect "is not measured in terms of whether the information is easy or difficult to obtain but by whether the information is in the possession of some arm of the state." United States v. Perdomo, 929 F.2d 967, 971 (3d Cir. 1991).

Even where the prosecutor has satisfied his duty to learn of favorable evidence, the knowledge of exculpatory evidence possessed by anyone associated with the prosecution will be imputed to the prosecutor. In Nelson the Court explained that this includes "'law enforcement personnel' involved in the investigation of the defendant's 'particular criminal venture.'" Nelson, supra, 155 N.J. at 499 (citing Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d 801, 824 (10th Cir.), cert. denied, 516 U.S. 905, 116 S. Ct. 272, 133 L. Ed. 2d 193 (1995)); see Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 109 (1972).

In Parsons the prosecutor conceded that the State violated the defendant's constitutional rights because it withheld evidence of the Marshall investigation, discovery of which Parsons sought after he was indicted. 341 N.J. Super. at 453-54. The prosecutor objected to the release of the information when it was sought and, when the matter was brought before the court, it denied the application, finding that there was "no indication there was 'any ongoing investigation.'" Id. at 453. When the motion was denied Parsons pled guilty. Ibid. After the plea but before imposition of sentence, the December 7, 1998, indictments were handed down charging Marshall with the multiple offenses we have already described. Ibid. Parsons then moved to withdraw his guilty plea and "asserted that he would not have pled guilty had he been aware of the full nature and extent of the Marshall investigation." Ibid.

The facts in Parsons are very distinguishable from the facts before us here where at the time of the plea there was no investigation into the conduct of Marshall, which was known only by him and the fellow officers who protected him. The duty imposed on prosecutors by Kyles and Nelson was never intended to encompass imputation to the prosecutor of the secret criminal conduct of an arresting officer. We decline the invitation to extend that duty so far.

 
Affirmed.

(continued)

(continued)

11

A-1610-06T5

October 31, 2007