STATE OF NEW JERSEY v. ESTEE NUNES-HENRIQUES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ESTEE NUNES-HENRIQUES, a/k/a

ESTEE F. NUNESHENRIQUES, ESTEE

F. NUNES, HENRIQUES F. NUNES,

HENRIQUESESTEE F. NUNES, ESTEE

F. NUNES, ESTEE F. NUNESENRIQUES,

ESTEE F. NUNEZ,

Defendant-Appellant.

____________________________________

Submitted May 21, 2014 Decided June 4, 2014

Before Judges Fuentes and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-03-0375; Accusation Nos. 10-09-0662 and 10-09-0663.

Bruce I. Afran, attorney for appellant.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Katie Mae Magee, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from her convictions for third-degree burglary, N.J.S.A. 2C:18-2a(1); third-degree theft, N.J.S.A. 2C:20-3a; fourth-degree shoplifting, N.J.S.A. 2C:20-11b(3); and fourth-degree forgery, N.J.S.A. 2C:21-1a(3). We affirm.

In 2006, defendant committed the crimes of theft and burglary, and the court admitted her into the pre-trial intervention (PTI) program. Approximately three and one-half years later, defendant committed the new crimes of forgery and shoplifting. In September 2010, defendant pled guilty to all the crimes.

In June 2011, defendant moved to vacate her guilty pleas. She argued that she was innocent on the forgery and shoplifting charges, and that pursuant to the plea agreement, she had expected that the burglary and theft charges would be dismissed. The judge rendered an oral opinion and denied her motion. In rejecting defendant's suggestion that the burglary and theft charges should have been dismissed, the judge cited the following testimony from the plea hearing:

COURT: You understand that you have . . . previously received [PTI] for the charge of theft for unlawful taking and burglary, you recall that?

DEFENDANT: Yes.

COURT: And as a result of you committing a subsequent offense, you understand that your PTI has been terminated?

DEFENDANT: Yes.

COURT: And as I understand it, you are now prepared to enter a plea of guilty to that burglary and theft charge that you previously received PTI, is that correct?

DEFENDANT: Yes.

As to defendant's argument that she was innocent of the forgery and shoplifting charges, the judge then stated that

[defendant] now states that she left merchandise on the premises. Even accepting [her] excuse [that she renounced her intention to shoplift by leaving merchandise in the store's dressing room], the shoplifting statute . . . contains the presumption that the merchandise concealed on the premises can be the basis for the charge of shoplifting.

. . . .

The issue was switching the tags on certain watches to get the benefit of a refund from the store. That's what she said at the time of her allocution, that she admitted to switching the tags . . . . [T]he defendant is not claiming [innocence], but she is arguing technicalities that she believes may help her case. That is not what is contemplated by Slater[1]. . . .

With respect to the forgery charge, she does not assert that . . . she didn't alter the dates on the insurance card. Again, the argument[s] made by the defendant in her certification, they don't even rise to a level of asserting innocence, they simply really argue the law . . . .

. . . .

[T]he [c]ourt asked the defendant clearly whether or not she was under the influence of any drugs, alcohol, medication, or anything else that would affect her ability to understand. Clearly her answer to the Court was, no.

The judge then terminated defendant's participation in the PTI program, followed the plea agreement, and imposed an aggregate four-year probationary term, community service, and restitution.

On appeal, defendant raises the following points:

POINT I

The motion to vacate the plea to the burglary charge should have been granted because the written plea agreement provided for a plea solely to the forgery and shoplifting charges and required that "all remaining charges will be dismissed."

POINT II

The plea to the fourth-degree charge of shoplifting under N.J.S.A. 2C:20-11b(2) should have been vacated as the record shows a colorable claim of innocence under State v. Slater, 198 N.J. 145 (2009).

A. Defendant's Leaving the Watch Behind in the Dressing Room Is Not Concealment Under the Statute.

B. No Factual Basis Was Shown on the Record to the Taking of a Watch in the Value of at least $200, the minimum required for a Fourth Degree Offense.

POINT III

The motion to vacate the plea to the charge of fourth degree forgery of the insurance card should have been granted as the facts indicate a violation of N.J.S.A., 2C:29-1, obstruction of justice, or 21-2.1(c), possession of an altered or forged insurance card, both disorderly persons offenses.

A. Ms. Nunes should have been charged under N.J.S.A., 2C:21-2.3(c), the specific statute concerned with alteration of auto insurance cards.

B. Alternately, Ms. Nunes should have been charged with obstruction in a motor vehicle proceeding, under N.J.S.A., 2C:29-1, also a disorderly persons offense.

After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), and affirm substantially for the reasons expressed by the judge. We add the following brief remarks.

The parties produced two plea forms on appeal. One indicates that the theft and burglary charges would be dismissed, and the other indicates that defendant was pleading guilty to the theft and burglary charges in exchange for a probationary sentence and the termination of her PTI participation. We agree with the judge that defendant's testimony at the plea hearing governs and that defendant fully knew that the theft and burglary charges would not be dismissed.

Defendant presents no colorable claim of innocence to the shoplifting charge. Slater, supra, 198 N.J. at 157-158. She asserts that she left the merchandise in the dressing room and thereby renounced efforts to shoplift, and that leaving it there was insufficient to constitute "concealment" under the shoplifting statute. However, whether she concealed the merchandise is irrelevant because she pled guilty to a violation of N.J.S.A. 2C:20-11b(3) (alteration of price tags), not N.J.S.A. 2C:20-11b(2) (concealment).

We also reject defendant's assertion that the prosecutor could have charged her with lesser offenses such as producing and offering a fraudulent motor vehicle insurance card, N.J.S.A. 2C:21-2.3, or obstruction, N.J.S.A. 2C:29-1. As the judge correctly concluded, whether the prosecutor could have charged defendant with another offense is irrelevant.

Affirmed.

1 State v. Slater, 198 N.J. 145 (2009).