STATE OF NEW JERSEY v. MICHAEL GALDIERI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5245-06T45245-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL GALDIERI,

Defendant-Appellant.

______________________________________

 

Argued April 22, 2008 - Decided

Before Judges Grall and Chambers.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 05-06-949.

Paul Casteleiro argued the cause for

appellant.

Kathleen O'Leary, Assistant Prosecutor, argued the cause for respondent (Edward J. De Fazio, Hudson County Prosecutor, attorney; Ms. O'Leary, on the brief).

PER CURIAM

Defendant Michael Galdieri appeals from a final judgment of conviction. He contends that the trial court abused its discretion in denying his motion to vacate his guilty plea. We affirm substantially for the reasons given by Judge Callahan in his oral decision of May 4, 2007, and add only a brief explanation for our conclusion that his exercise of discretion was proper in all respects.

The grand jurors for Hudson County returned an eight-count indictment that included these charges: counts one and three, third-degree possession of a controlled dangerous substance, ecstasy and methamphetamine, with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3); count five, second-degree possession of a controlled dangerous substance, 16.16 grams of cocaine, with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3); counts two, four and six, possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7; count seven, unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and count eight, possession of a firearm in the course of violating N.J.S.A. 2C:35-5 or N.J.S.A. 2C:35-7, N.J.S.A. 2C:39-4.1a.

A plea agreement was negotiated. Defendant had the assistance of counsel during the negotiations. The agreement was detailed on a plea form, which defendant admitted he signed after he reviewed it with his attorney.

In return for defendant's plea of guilty to the second- degree crime charged in count five and the third-degree crimes charged in counts one and three, the State agreed to dismiss all remaining charges in the indictment and a separate complaint alleging possession of marijuana. The form agreement included defendant's acknowledgment of his understanding that he was pleading guilty to a crime that carries a "presumption of imprisonment," which meant that it was "almost certain" that he would go to state prison. The agreement also included the State's promise to recommend a specific sentence: "five years flat" on count five, and "flat [three] years concurrent to five years flat" on counts one and three.

At the hearing on defendant's guilty plea, he told the judge he had a college education, professed his satisfaction with his attorney's services and said he had not been pressured or threatened. The judge explained the plea agreement and the sentence to which defendant was exposed. He described the permissible sentence for the second-degree crime as "five to ten years with a presumption to go to prison." The judge then contrasted that potential sentence with defendant's sentence under the agreement, which he described as "a flat five." Defendant said he understood. The judge further explained that after he sentenced defendant, defendant's "release date" would be up to the parole board. He noted, however, that defendant could apply for intensive supervision. When the judge asked defendant if he understood, defendant's response was "Yes, sir." The judge then described the concurrent three-year terms for the third-degree crimes the State agreed to recommend, and explained that the "flat three" was the minimum sentence for those crimes. He also reviewed with defendant the mandatory fines and penalties that would be imposed. The judge advised defendant that his record would reflect three convictions. Again, defendant acknowledged his understanding of the agreement and that the judge's description was consistent with his understanding of the plea form he had signed.

After the judge detailed the rights defendant would waive if he were to plead guilty, defendant confirmed his intention to plead guilty and his guilt. He admitted that he knowingly possessed ecstasy, "meth," and cocaine in a quantity of one-half ounce or more, as well as his intention to distribute the drugs to others. When the judge reiterated the elements of the crimes and asked defendant if he understood and was guilty, his response was "Yes, sir."

Prior to sentencing, defendant moved for leave to withdraw his guilty plea. He claimed that when he entered the plea, he believed, based on the representations of his attorney, that he would be receiving a probationary term and that five years was the maximum sentence he could receive. He also claimed, despite his admission at the time of the plea, that he intended to use some of the 16.16 grams himself and to distribute only a portion of the cocaine that weighed less than the amount required for conviction of a crime of the second degree.

After thoroughly reviewing the transcript of the plea proceeding in light of the controlling legal standards, Judge Callahan, who also accepted defendant's guilty plea, rejected defendant's motion. Concluding that the plea was supported by the factual basis provided and that the transcript "belie[d]" what defendant now claimed about his understanding of the sentence, Judge Callahan determined that defendant had not established a plausible basis for withdrawal of the plea.

On review of the denial of a motion to withdraw a guilty plea, this court defers to a sound exercise of discretion. State v. Luckey, 366 N.J. Super. 79, 87 (App. Div. 2004). It would be difficult to find a better example of a proper exercise of a trial judge's discretion than the one under review. See Luckey, supra, 366 N.J. Super. at 86-87 (discussing the showing a defendant must make to warrant an exercise of discretion to vacate a guilty plea prior to sentencing and quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)); see State v. Means, 191 N.J. 610, 619 (2007) (summarizing the requisites for acceptance and withdrawal of a plea entered on an agreement); State v. Smullen, 118 N.J. 408, 414-18 (1990) (same). Trial courts generally exercise discretion liberally when a defendant who seeks to withdraw a plea prior to sentencing asserts his or her innocence. State v. Deutsch, 34 N.J. 190, 198 (1961). Nonetheless, "[l]iberality in exercising discretion does not mean an abdication of all discretion." Huntley, supra, 129 N.J. Super. at 17. Judge Callahan did not consider defendant's request "with a set attitude of skepticism." State v. Taylor, 80 N.J. 353, 365 (1979). Rather, the judge appropriately assessed defendant's contentions "with great care and realism" and only after a thorough review of the record and the controlling precedents. Ibid.

Affirmed.

 

At oral argument, defendant's attorney advised us that his client has been released and is presently enrolled in the intensive supervision program.

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A-5245-06T4

April 30, 2008