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State v. Brazilian

November 7, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDWARD T. BRAZILIAN A/K/A EDWARD T. BRAZILIAN, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-10-2476-I, 04-10-2475-I, 04-10-2474-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 23, 2007

Before Judges Skillman and Winkelstein.

On October 19, 2004, a Monmouth County Grand Jury returned three separate indictments against defendant Edward Brazilian. Under Indictment No. 04-10-2474, the grand jury charged him and his co-defendants, Matthew Lapadula and James Ritter, with second-degree conspiracy to commit an armed robbery on June 8, 2004, N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-1 (count one); and first-degree armed robbery of Brian Wolf on June 8, 2004, N.J.S.A. 2C:15-1 (count two). Under Indictment No. 04-10-2475, the grand jury charged defendant and co-defendant Lapadula with second-degree conspiracy to commit an armed robbery on June 6, 2004, N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-1 (count one); and first-degree armed robbery of Paul Sacaloff on June 6, 2004, N.J.S.A. 2C:15-1 (count two). Finally, under Indictment No. 04-10-2476, the grand jury charged defendant and co-defendant Lapadula with third-degree conspiracy to commit burglary on June 3, 2004, N.J.S.A. 2C:5-2; N.J.S.A. 2C:18-2 (count one); third-degree burglary on June 3, 2004, N.J.S.A. 2C:18-2 (count two); and fourth-degree theft of movable property on June 3, 2004, N.J.S.A. 2C:20-3a (count three).

On April 25, 2005, as part of a plea agreement, defendant entered guilty pleas to the following offenses: under Indictment No. 04-10-2474, defendant pleaded guilty to count two, first-degree armed robbery; under Indictment No. 04-10-2475, defendant pleaded guilty to count two, amended to second-degree robbery; and under Indictment No. 04-10-2476, defendant pleaded guilty to count two, third-degree burglary. The plea agreement called for the court to dismiss all remaining charges and impose two concurrent eleven-year prison sentences on the robbery counts, and a concurrent four-year flat term on the burglary count.

At sentencing on January 20, 2006, the court heard and denied defendant's motion to withdraw his guilty plea. The judge then imposed a six-year prison term, subject to an eighty-five percent period of parole ineligibility, for the second-degree robbery conviction, under Indictment No. 04-10-2475; a five-year term, with an eighty-five percent period of parole ineligibility, for the first-degree armed robbery conviction, under Indictment No. 04-10-2474, consecutive to the six-year term under Indictment No. 04-10-2475; and a concurrent four-year term for the third-degree burglary conviction, under Indictment No. 04-10-2476.*fn1

On appeal, defendant raises the following two legal arguments:

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S REQUEST TO WITHDRAW HIS GUILTY PLEA.

POINT II

INSUFFICIENT REASONS WERE GIVEN FOR IMPOSING CONSECUTIVE SENTENCES.

Defendant's arguments in point one are without merit. Consequently, we affirm his conviction. We vacate defendant's sentence, however, in that it did not accurately reflect the plea agreement.

We take the facts underlying the charges from the transcript of defendant's guilty plea on April 25, 2005 and the presentence report. As to Indictment No. 04-10-2474, on June 8, 2004, defendant and his co-defendants robbed Brian Wolf. Defendant pulled a knife on Wolf and took approximately $200 from him. Under Indictment No. 04-10-2475, on June 6, 2004, defendant and Lapadula approached Paul Sacaloff and demanded money from him. Defendant punched Sacaloff in the face and pressed a hard object against his body, telling him that it was a knife. Finally, ...


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