On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Furman, Brody and Scalera. The majority opinion of the court was delivered by Scalera, J.A.D. Brody, J.A.D., dissenting.
Defendant appeals from an order denying his motion to withdraw a plea of guilty to receiving an automobile knowing that it had been stolen or believing that it probably had been stolen contrary to N.J.S.A. 2C:20-7. After his motion was denied, defendant was sentenced to a five-year term of imprisonment with a two and one-half year period of parole ineligibility, for this third-degree crime. On appeal, defendant raises the following two arguments: (1) that he entered the plea under duress in order to be transferred from the jail where he was being held in allegedly oppressive conditions and (2) that he failed to give an adequate factual basis for the crime.
Defendant has an extensive record of theft crimes, including three convictions for receiving stolen automobiles. The day before he committed the instant theft defendant had received probationary sentences for three other thefts, including receiving a stolen automobile. Despite his criminal record, he received these lenient sentences for cooperating with the police in
other prosecutions. That cooperation, however, made him a "security risk" in the county jail where he was being held following his arrest for the present offense. After defendant entered his plea, his attorney informed the Court that he had "been asked by the jail authorities" to request the Court to transfer defendant to a jail in a neighboring county to await sentence. The judge complied after the assistant prosecutor stated that she had "no objection."
At a hearing on defendant's motion to withdraw his plea, defendant testified that prior to the retraxit hearing he had been confined to his cell, except for an hour a day, to protect him from other inmates. He stated that this experience so unnerved him that he pled guilty in order to be transferred. He added that as a result of this pressure and the limited time he had to confer with his attorney, he "didn't really know what was going on" when he pled. However, in considering the evidence, which included a transcript of the retraxit hearing and the testimony of the attorney who had then represented defendant, the trial judge concluded that defendant had entered the plea voluntarily and with full knowledge of the consequences. We may not and do not disturb these findings because they are supported by sufficient credible evidence in the record. State v. Johnson, 42 N.J. 146, 162 (1964).
Regarding defendant's second argument he gave the following factual account of the crime:
THE DEFENDANT: I was walking down the street and my friend came around the corner. [Codefendant] Keith Martin came around the corner in the car and he called me over there to him. So I came to the car. I was getting ready to enter the car. I put my hands on the car. As soon as I put my hands on the car, the cop told me to freeze, so I ran.
THE COURT: Okay. . . . Mr. McCoy, did you have any reason to believe that the car was or might be stolen?
THE DEFENDANT: Yes, I did.
THE COURT: Did you think the car was or was likely to be stolen?
THE COURT: He says he wasn't in the car.
[THE ASSISTANT PROSECUTOR]: Were you about to get into the ...