On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels, Bilder and Wallace. The opinion of the court was delivered by Bilder, J.A.D.
This is an appeal from the denial of an application to withdraw a plea of guilty. Although set forth as a number of different contentions, defendant's essential complaint is that he was sentenced by a different Judge than the one before whom he pled. This was the essence of his argument when he sought to withdraw his plea at the time of sentencing.
On February 11, 1991, defendant Richard Russo entered a retraxit plea of guilty to second degree conspiracy to commit theft (count 1), and theft of property valued in excess of $75,000 by failure to make required Disposition of said property (count 2). As part of the plea, the State agreed that "if Mr.
Russo produces to the Court within 30 days from the date of this sentencing full restitution as alleged in the indictment in the amount of one million dollars plus interest, * * *, if those entire moneys are deposited with the Court, then the State will recommend that Mr. Russo be treated as a third degree offender for purposes of sentencing." On March 28, 1991, he appeared before a different Judge. He had not deposited the required moneys in court. He was sentenced to concurrent custodial terms of seven years on each count and ordered to pay one million dollars in restitution.
A careful examination of the plea transcript shows the following:
1. The trial Judge made the particulars of the offense exquisitely clear on the record.
It's a two count indictment. The first count charges you with a second degree conspiracy, charging that specifically on or about January 1986 and on or about June 30, 1986 in Wyckoff, Upper Saddle River, Woodcliff Lake, Paramus, all in Bergen County as well as in the Town of Clarkstown in New York and elsewhere * * * with the purpose of promoting and facilitating the commission of the substantive crime in this case, theft by failure to make required Disposition of property, that you did engage in or help in planning or soliciting the commission of that crime by pursuing conduct which would constitute that crime, the crime being to purposely obtain or retain property valued in excess of 75 thousand dollars upon agreement or subject to a known legal obligation to make specified payment or other Disposition, and to deal with the property obtained as if it were your own and to fail to make the required payment or Disposition of that property.
[One of the specific acts alleged against you] is that it was further a part of the conspiracy that the borrowers in this case * * * Maryanne Sieck and Ronald Parente would place a million dollars good faith money in a trust account of PCG Realty for subsequent disbursement to another entity known as Marine Trading and Promotions Corp., and that in furtherance of that conspiracy you promised that that money would be deposited into the escrow account by a New York attorney for the benefit of the Marine Trading a Promotions Corp.
Count two of course is also a second degree crime, and that charges that you did fail to place that money in the escrow account of E. George Nyberg, an attorney.
2. The trial Judge made the penal consequences abundantly clear. We focus on the custodial consequences.
As I said, these are each second degree offenses and they expose you up to 10 years in the state prison system, * * * As I understand it however, if you went to trial on this and you were found guilty of both of these offenses, you would only be punishable under one because the conspiracy would merge into the substantive offense.
3. The trial Judge took special pains to make it clear to defendant that it was unlikely he would ...