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State v. Lavoy

Decided: October 22, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICARDO A. LAVOY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Antell, Dreier and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

This appeal involves the procedure to be followed in taking a plea of guilty to a violation of probation, specifically the applicability to probation violation proceedings of Rule 3:9-2, which requires the court to address the defendant personally before accepting a plea.

Defendant pled guilty pursuant to a plea bargain to burglary of a motor vehicle, in violation of N.J.S.A. 2C:18-2, and theft of a motor vehicle, in violation of N.J.S.A. 2C:20-3, and was sentenced to five years of probation, conditioned on his serving a 364 day term of imprisonment, obtaining full-time steady employment and receiving psychiatric counseling.

Defendant was charged with having violated probation by, among other things, failing to report to his probation officer, moving without notifying his probation officer, failing to obtain full-time steady employment and failing to receive psychiatric counseling. When the charges were heard, the court failed to address defendant. Instead, after the probation officer read the charges, defense counsel simply stated that "[d]efendant acknowledges his guilt." Defense counsel also noted that "apparently this Defendant was . . . released from jail before he had signed any kind of probation papers indicating what the terms and conditions of probation are." In addition, defense counsel noted that defendant suffers from "a serious psychiatric problem" which manifests itself in his frequent theft of large trucks, and that "even right now he was taken to Bergen Pines based on this kind of psychiatric condition." The trial court responded by observing, "I think he has a medical condition, too." After hearing the comments of the prosecutor and probation officer regarding the sentence to be imposed for the

violation of probation but without addressing defendant, the trial court sentenced defendant to a five year term of imprisonment.

Defendant appealed to this court, which heard the matter on its excessive sentence calendar. R. 2:9-11. We concluded in an unreported opinion that the trial court had failed to afford defendant his right of allocution, as required by R. 3:21-4(b). State v. Lavoy, A-2202-90T4. Accordingly, we vacated defendant's sentence and remanded for resentencing.

Upon remand, when defendant was given the opportunity to address the court, he stated:

I just wanted to make a statement regarding my case. I feel that [defense counsel] has made an error as far as him saying that I acknowledge my guilt of the violation of probation. I feel that I did not sign the paperwork and I want to make a plea that I am not guilty of the violation of probation because of this.

In addition, defense counsel suggested that he had pled his client guilty to the violation of probation without his authorization:

I think, Judge, the record will bear that out, that he himself had never expressed his guilt to the charge of a violation of probation, . . . and, in fact, he did mention to me that he did not sign the Rules & Conditions of Probation; that he didn't know what to do as far as Probation was concerned, and that I apparently, Judge, at that stage, had not taken that statement by him too seriously when I did plead him guilty to a violation of probation . . . .

The probation department acknowledged that defendant had not signed the rules and conditions of probation before he was released on probation. However, the trial court refused to consider defendant's motion to withdraw the guilty plea made on his behalf by his attorney, stating that the motion is "out of time" and that there is no basis for withdrawing the plea because defendant had "an ...


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