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State v. Delgado

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 7, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BORIS L. DELGADO, A/K/A JEFFREY MATOS, A/K/A BORIS LARA, A/K/A BORIS DELGADO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 01-04-0463, 01-09-0951 and 01-06-0673.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 16, 2007

Before Judges Lefelt and Sapp-Peterson.

In 2002, defendant pled guilty, pursuant to a plea bargain, to first-degree robbery, second-degree aggravated assault, and second-degree possession of a weapon for an unlawful purpose.

The plea bargain recommended a maximum sentence of twelve years imprisonment with application of the No Early Release Act. Defendant absconded after his guilty plea and failed to appear at his scheduled June 7, 2002 sentencing. Over three years later, defendant was arrested and returned to custody. Defendant thereupon moved to withdraw his guilty plea claiming that the plea agreement was improperly explained to him, that his guilty pleas were involuntary entered, and that he was threatened by a co-defendant. Judge Subryan, who was the original trial judge, rejected each of defendant's arguments and imposed sentence in accordance with the original plea agreement. On appeal, defendant argues the trial judge erred when he refused to conduct an evidentiary hearing before deciding the motion.

Defendant's original guilty plea fully complied with Rule 3:9-2. The colloquy between defendant and Judge Subryan supports the conclusion that defendant entered a voluntary and knowing guilty plea pursuant to the negotiated plea bargain. Consequently, "defendant's burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier." State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974). Defendant has failed to meet this burden. Furthermore, because the record, which included the plea colloquy and comprehensive argument with briefs on the motion, was sufficient for Judge Subryan to evaluate and reject defendant's contentions without conducting a testimonial hearing to explore his tardy assertions, defendant's request for an evidentiary hearing was properly denied.

Therefore, because "this record clearly indicates the pleas of guilty were the product of a free and rational choice made with the advice of competent counsel, and that no valid basis has been shown to warrant their retraction," id. at 19, we affirm substantially for the reasons articulated by the trial judge in his comprehensive, well researched, and soundly reasoned written decision of June 12, 2006.

Affirmed.

20070607

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