STATE OF NEW JERSEY v. TRESOR GOPAUL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0474-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRESOR GOPAUL,

Defendant-Appellant.

________________________________

October 26, 2015

Before Judges Fuentes and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-04-0122.

Thomas R. Ashley argued the cause for appellant.

Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Ducoat, of counsel and on the brief).

PER CURIAM

After entering a plea of guilty to an accusation charging second-degree theft of over $75,000, N.J.S.A. 2C:20-3 and 2C:20-2(b)(1)(a), defendant Tresor Gopaul appeals from the September 16, 2014 judgment of conviction (JOC), arguing that his pre-sentence motion to withdraw his guilty plea was improperly denied. We disagree and affirm substantially for the reasons expressed by the judge in his thorough September 15, 2014 oral opinion. We remand only for an ability-to-pay hearing regarding restitution.

Defendant, who is a college graduate, was the Registrar for the Borough of Glen Ridge from 2010 until August 2013. After he was arrested for theft, he admitted to the police that he took cash paid to the borough for birth, marriage and death certificates.1 When another employee filled in for defendant, she received cash payments, yet defendant had not turned in cash, only checks and credit card receipts. Later, boxes containing applications for certificates were recovered, indicating that more than $82,000 in cash was taken during the course of the three years defendant was Registrar.2

Defendant retained private counsel, who approached the State about negotiating a pre-indictment plea agreement. Counsel was provided a copy of discovery and an opportunity to review the voluminous forms that had been found. Defense counsel then succeeded in negotiating a plea agreement that called for defendant to plead guilty to the accusation and face a sentence of only five years in prison with no term of parole ineligibility, restitution in the amount of $82,981,3 and forfeiture of current and future public employment pursuant to N.J.S.A. 2C:51-2. Additionally, the State agreed not to oppose defendant's admission into the Intensive Supervision Program (ISP), N.J.S.A. 2C:43-11. The judge also indicated he would approve defendant's admission into ISP.4

Prior to sentencing, defendant retained new counsel. The new attorney filed a motion to withdraw defendant's guilty plea, alleging prior counsel was ineffective and that defendant was factually innocent. The judge denied the motion and sentenced defendant as set forth in the plea agreement.

Defendant raises the following issues on appeal

POINT I: THE COURT BELOW FAILED TO PROPERLY IDENTIFY AND APPLY THE FOUR-PART SLATER TEST AS DEFENDANT DID NOT KNOWINGLY AND INTELLIGENTLY ENTER HIS PLEA OF GUILTY AND IT WAS PLAIN ERROR TO DENY HIS MOTION TO WITHDRAW HIS PLEA OF GUILTY TO THE THEFT CHARGE. [THIS ISSUE WAS RAISED IN THE COURT BELOW].

POINT II: AT ENTRY OF HIS PLEA OF GUILTY DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF DEFENSE COUNSEL. [THIS ISSUE WAS RAISED IN THE COURT BELOW].

POINT III: IT WAS PLAIN ERROR TO NOT PERMIT DEFENDANT TO COMMENT AS TO THE PRESENTENCE REPORT OR TO CONDUCT A RESTITUTION HEARING, WHERE DEFENDANT CONTESTED THE AMOUNT OF THEFT LOSS. [THIS ISSUE WAS RAISED IN THE COURT BELOW].

The motion judge thoroughly analyzed the four Slater factors as required when a motion to withdraw a guilty plea is filed. See State v. Slater, 198 N.J. 145, 157-58 (2009) (stating that "trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea"). He properly analyzed these factors pursuant to the more lenient "interest of justice" pre-sentence standard. See id. at 158 (stating that "pre-sentence motions to withdraw a plea are governed by the 'interest of justice' standard in R. 3:9-3(e)"). After that analysis, he concluded that defendant had not met his burden of proving the Slater criteria were satisfied. We agree.

As the judge commented, any complaints regarding defendant's first attorney would be better raised, if at all, in an application for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding."). We note, as pointed out by the State, that by pleading guilty prior to indictment, defendant avoided the likely charge of official misconduct, N.J.S.A. 2C:30-2, which carries a mandatory minimum sentence, N.J.S.A. 2C:43-6.5(a), (b)(17).

Defendant was afforded an opportunity to speak at sentencing, as was his new attorney. The judge received information from two insurance companies substantiating the sums paid to the borough as compensation for the theft. Defendant also confirmed the amount of the theft in the factual basis he gave when he pled guilty. Thus, defendant was not entitled to a hearing to determine the amount of restitution. See State v. Corpi, 297 N.J. Super. 86, 93-94 (App. Div.) (finding "no denial of due process" where defendant's plea provided "a sufficient factual basis" to support the restitution amount), certif. denied, 149 N.J. 407 (1997). As the State concedes, however, defendant is entitled to a hearing to determine his ability to pay the restitution ordered. See State v. Martinez, 392 N.J. Super. 307, 322 (App. Div. 2007) (remanding for "a hearing on the issue of [defendant's] ability to pay" the ordered restitution).

Affirmed in part and remanded only for an ability-to-pay hearing. We do not retain jurisdiction.

1 Defendant gave a taped statement to the police after waiving his right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh'g denied, 385 U.S. 890, 87 S. Ct. 11, 17 L. Ed. 2d 121 (1966).

2 We glean this information from the record before us and the State's trial brief, provided to us without objection on appeal.

3 We note that the JOC reflects restitution of one dollar more, an incorrect number.

4 At oral argument, defense counsel informed us that defendant had been admitted into ISP after serving approximately four months in custody.