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State v. Clark

June 20, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD CLARK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, 96-8-1064-I.

Before Judges Petrella, Kestin and Steinberg.

The opinion of the court was delivered by: Kestin, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: March 4, 2002

In these consolidated matters arising after a remand, defendant appeals from convictions, following guilty pleas, for two counts of second degree burglary and one count of third degree theft; from the concurrent sentences imposed thereon; and from the trial court's denial of his motion to withdraw his guilty plea to the second degree burglary charges. Defendant raises the following issues on appeal:

POINT I DEFENDANT'S CONVICTIONS FOR ARMED

BURGLARY MUST BE VACATED BECAUSE THE FACTUAL BASIS FOR HIS GUILTY PLEAS DID NOT EVINCE AN INTENT TO USE THE KNIFE DURING THE BURGLARIES.

POINT II DEFENDANT'S SENTENCE SHOULD BE

REDUCED TO THE PRESUMPTIVE TERM. In a pro se letter brief, defendant argues further that no adequate factual basis was given, or could have been given, to support a conviction for armed burlary. We affirm.

The procedural history of this matter is complex. An August 8, 1996 indictment, No. 96-08-1064, charged defendant with two counts of burglary while armed with a deadly weapon, a knife, in violation of N.J.S.A. 2C:18-2 (second degree); two counts of theft in violation of N.J.S.A. 2C:20-3 (third degree); and unlawful possession of the knife in violation of N.J.S.A. 2C:39- 5d (fourth degree). A subsequent indictment, No. 97-01-00, filed January 27, 1998, charged defendant with four third-degree crimes: theft (receiving) in violation of N.J.S.A. 2C:20-7; possession of cocaine in violation of N.J.S.A. 2C:35-10a(1); terroristic threat in violation of N.J.S.A. 2C:12-3b; and possession of a weapon, a knife, for unlawful purpose in violation of N.J.S.A. 2C:39-4d. The latter indictment also included a fifth count charging unlawful possession of the knife in violation of N.J.S.A. 2C:39-5d, a fourth degree crime.

A plea proceeding occurred on June 23, 1997. Pursuant to a plea agreement, defendant pled guilty to the two second-degree burglary counts of the earlier indictment and the theft (receiving) and drug possession counts of the later indictment. The plea agreement provided that the remaining counts of both indictments would be dismissed along with charges of related disorderly persons offenses. The agreement also provided that the State would recommend a twelve-year sentence, reserving the right to argue for consecutive terms and a period of parole ineligibility. At the plea proceeding, defendant acknowledged his understanding that he might be reincarcerated on a parole violation in respect of a prior conviction.

The plea proceeding colloquy consisted of defense counsel's questions regarding the plea agreement, procedural aspects, the legal consequences of the plea, and the factual basis. Among the factual bases offered was:

MR. PLUNKETT [defense counsel]: And on indictment 1064-96, were you in Saddle Brook and did you enter a residence on 110 North 5th Street to commit an offense therein? was, but yes, I did.

THE DEFENDANT: I don't know what the address

MR. PLUNKETT: Was it your purpose to enter into that residence to steal anything of value, and at that time were you also wearing on the outside of your jacket ----

THE DEFENDANT: Yes, a belt ----

MR. PLUNKETT: Outside your belt a knife?

THE DEFENDANT: Yes, I did.

MS. BAGLIVI [the assistant prosecutor]: Did he have permission to enter into this house?

MR. PLUNKETT: Did you have permission to enter into the structure?

THE DEFENDANT: No.

MR. PLUNKETT: With regard to count three, did you similarly enter a residence at 110 North 5th Street in Saddle Brook?

THE DEFENDANT: Again, I don't know the address.

MR. PLUNKETT: This second structure in Saddle Brook, your intention was also the same?

THE DEFENDANT: Yes.

MR. PLUNKETT: In other words, you were entering for the purpose to steal?

THE DEFENDANT: Yes.

MR. PLUNKETT: This was the same day? THE DEFENDANT: Yes.

MR. PLUNKETT: Did you have permission to enter into ...


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