STATE OF NEW JERSEY v. VINCENT PORRATA

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2827-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

VINCENT PORRATA, a/k/a
VICENTE M. PORRATA, and JOSE
R. ADAMES,

     Defendant-Appellant.
________________________________

              Submitted May 8, 2018 – Decided May 25, 2018

              Before Judges Reisner and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              13-01-0004.

              Andaiye Al-Uqdah, attorney for appellant.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Arielle E. Katz, Deputy
              Attorney General, of counsel and on the
              brief).

PER CURIAM

        Defendant Vincent Porrata appeals from his conviction for

first-degree racketeering, 
N.J.S.A. 2C:41-2(c) to 2(d),                 for which
he was sentenced to ten years in prison subject to the No Early

Release   Act   (NERA),    
N.J.S.A.      2C:43-7.2.     Defendant's    appeal

focuses on a September 7, 2017 order denying his motion to withdraw

his guilty plea.     He presents the following point of argument:

           THE TRIAL COURT ERRED BY DENYING DEFENDANT'S
           MOTION TO WITHDRAW PLEA AS THE SLATER FACTORS
           WEIGH IN FAVOR OF DEFENDANT.

     The trial judge did not abuse his discretion in denying the

motion, because defendant did not satisfy the test set forth in

State v. Slater, 
198 N.J. 145, 150 (2009).            Therefore, we affirm.

                                     I

     As   the    result    of   an    extensive   investigation   of      drug

trafficking, the State indicted defendant and thirty-five co-

defendants.     Defendant was indicted in 2013, on charges of first-

degree    racketeering,         
N.J.S.A.      2C:41-2(c);    second-degree

conspiracy,     
N.J.S.A.    2C:5-2;      first-degree    possession     of    a

controlled dangerous substance with intent to distribute, 
N.J.S.A.

2C:35-5(a) to (b); and third-degree money laundering, 
N.J.S.A.

2C:21-25(a).

     The State's evidence against defendant included wiretaps, and

observations     made     during     undercover   surveillance.         Those

observations and wiretaps connected defendant with possible drug

activity at his girlfriend's residence and while using her car.

At the time of his arrest, defendant was a passenger in the

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girlfriend's car.   A search of the car revealed two zip lock bags

of heroin, over $14,000 in cash, and over $10,000 in counterfeit

United States currency.   Law enforcement officers also seized drug

paraphernalia and heroin from the girlfriend's home.

     Due to his five prior felony convictions, defendant faced a

possible life sentence as a persistent offender if convicted of

the first-degree charges.   Even if he were not given an extended

term, defendant faced a potential sentence of forty-five years in

prison if convicted of all charges.

     On February 10, 2015, defendant entered into a plea agreement

under which he would plead guilty to first-degree racketeering,

and the State would recommend a ten-year NERA sentence.     On the

same date, defendant also entered into a separate cooperation

agreement, which could have resulted in the State reducing its

recommendation to a five-year NERA sentence.   At the plea hearing

on February 10, 2015, the prosecutor placed on the record that,

although the case was on "the trial list," the State was agreeing

to the plea deal "to avoid a lengthy trial" involving "hundreds

of wiretaps" and "dozens of witnesses."

     The trial judge reviewed the plea agreement on the record,

and defendant stated that he understood it.        In response to

questions from the judge, defendant also acknowledged that he had

reviewed the case with his attorney, and his attorney had shared

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with him "the discovery materials that [counsel] had received from

the State."

      In his plea allocution, defendant admitted that between March

15, 2011 and May 10, 2012, he was involved in criminal activity

"involving the distribution of drugs in amounts . . . over five

ounces" and was involved in laundering money.                     He specifically

admitted that the conspiracy involved "over five ounces of heroin

and/or cocaine." Defendant also admitted that during that time

period, he had conversations with a co-defendant named Gonzalez

in which there was "an agreement that drugs would be distributed

to   [Gonzalez],    or    that    [Gonzalez]      would       distribute   them    to

[defendant] for purposes of distribution throughout the County of

Camden."

      As   a   result    of     the   cooperation       agreement,    defendant's

sentencing was postponed for six months, and he was permitted to

remain free on bail.           However, he failed to provide the promised

cooperation and did not appear for sentencing.                        After being

arrested on a bench warrant on December 13, 2016, and facing a new

sentencing hearing, defendant filed a motion to withdraw his guilty

plea.   The    motion    was    not   supported    by     a   certification     from

defendant or any other legally competent evidence.

      In an oral opinion placed on the record after the motion

argument, the trial judge, who had also presided at the plea

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hearing, concluded that defendant had not satisfied the standards

for withdrawing a guilty plea set forth in Slater.           See Slater,


198 N.J. at 150.      In particular, the judge found that defendant

had not asserted a colorable claim of innocence.          The judge also

found that defendant had admitted his role in the drug distribution

enterprise, and his plea to racketeering did not require that he

admit physical possession of drugs.

      The judge found that defendant signed plea and cooperation

agreements that explicitly stated his sentencing exposure, and

defendant admitted on the record that he understood the plea

agreement.    The judge also noted that the plea was the result of

a   plea   bargain,   and   defendant   obtained   the   benefit   of   the

agreement.

                                  II

      Prior to sentencing, a motion to withdraw a guilty plea may

be granted "in the interests of justice."          R. 3:9-3(e); Slater,


198 N.J. at 156.      In considering the motion, the trial court must

consider the following four factors: "(1) whether the defendant

has asserted a colorable claim of innocence; (2) the nature and

strength of defendant's reasons for withdrawal; (3) the existence

of a plea bargain; and (4) whether withdrawal would result in

unfair prejudice to the State or unfair advantage to the accused."

Slater, 
198 N.J. at 150.        "The State is not required to show

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prejudice if a defendant fails to offer proof of other factors in

support of the withdrawal of a plea."        Id. at 162. We review the

trial court's decision of a Slater motion for abuse of discretion.

See id. at 156.

     After reviewing the record, we find no abuse of the judge's

discretion    in   denying     defendant's   motion,    and    we    affirm

substantially for the reasons the judge stated in his oral opinion.

Defendant's appellate contentions are without sufficient merit to

warrant further discussion beyond the following comments.                  R.

2:11-3(e)(2).

     We agree with the judge that defendant did not present a

colorable claim of innocence.      "A colorable claim of innocence is

one that rests on 'particular, plausible facts' that, if proven

in court, would lead a reasonable factfinder to determine the

claim is meritorious."       State v. Munroe, 
210 N.J. 429, 442 (2012)

(citation    omitted).   Defendant's     motion   did   not   present    any

evidence that would contradict the facts he admitted at the plea

hearing. Contrary to defendant's implicit argument on this appeal,

his plea allocution set forth an adequate factual basis for his

guilty plea to racketeering.

     Defendant's claim, that his attorney did not review discovery

with him, contradicted his acknowledgement at the plea hearing

that the attorney did so.        Defendant's motion did not deny that

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he was present in the car that contained the drugs and cash. Nor

did he attempt to explain away the incriminating recorded phone

calls with his co-conspirator.   Nor did he deny bringing a bag of

drugs to his girlfriend's house, regardless of whether he was

present during the actual search.      Given defendant's lack of

cooperation with the State, his claim that he believed that

cooperation would lead to a three-year recommendation from the

State is irrelevant.

     Lastly, the timing of defendant's motion strongly suggested

that he was "attempting to game the system." Id. at 443. Defendant

obtained a favorable plea bargain, and remained out of jail after

his plea, by agreeing to cooperate with the State.     However, he

failed to cooperate and failed to show up for sentencing.     After

avoiding incarceration for almost two years, defendant filed a

Slater motion based on bald assertions rather than "specific,

credible facts."   See State v. McDonald, 
211 N.J. 4, 17 (2012).

     This record does not demonstrate "an abuse of discretion

which renders the [trial] court's decision clearly erroneous."

State v. O'Donnell, 
435 N.J. Super. 351, 372 (App. Div. 2014).1


1
   Although the issues may overlap, a motion to withdraw a guilty
plea under Slater, and a petition for post-conviction relief (PCR)
alleging ineffective assistance of counsel with respect to a guilty
plea, are reviewed under different standards. See O'Donnell, 
435 N.J. Super. at 368-71. Our disposition of this appeal is without


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     Finally, we note that in his appellate appendix, defendant

included   a      certification    dated    September     8,        2017.   The

certification was not presented to the trial court and is not

properly   part    of   the   appellate    record.      See    R.    2:5-4(a).

Nonetheless, even if we consider the certification, it would make

no difference to the result of this appeal.

      Affirmed.




prejudice to defendant's right to file a PCR petition.       In so
noting, we are not implying that such a petition would have merit.

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