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State v. Bruney

December 27, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN O. BRUNEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-09-1420.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 28, 2007

Before Judges Sapp-Peterson and Messano.

Defendant Kevin O. Bruney appeals from the judgment of conviction and sentence that followed his pleas of guilty to two counts of robbery in the first degree, N.J.S.A. 2C:15-1. He raises the following points for our consideration:

POINT I BECAUSE THE COURT FAILED TO INFORM DEFENDANT THAT HIS GUILTY PLEAS WOULD CONSTITUTE A WAIVER OF HIS RIGHT TO PURSUE HIS PRETRIAL MOTION TO SUPPRESS HIS STATEMENTS, DEFENDANT DID NOT ENTER HIS PLEAS KNOWINGLY AND VOLUNTARILY; CONSEQUENTLY, THE COURT'S DENIAL OF DEFENDANT'S MOTION TO WITHDRAW HIS PLEAS DENIED HIM DUE PROCESS AND MUST BE REVERSED.

POINT II THE TWELVE YEAR SENTENCE WITH [EIGHTY-FIVE PERCENT] PAROLE INELIGIBILITY FOR DEFENDANT'S FIRST ADULT OFFENSES IS EXCESSIVE AND SHOULD BE REDUCED TO TEN YEARS.

We have considered these contentions in light of the record and applicable legal standards. We affirm.

Defendant was indicted by the Middlesex County grand jury and charged with: three counts of robbery in the first degree, N.J.S.A. 2C:15-1; three counts of aggravated assault in the fourth degree, N.J.S.A. 2C:12-1(b)(4); three counts of possession of a weapon for an unlawful purpose in the second degree, N.J.S.A. 2C:39-4(a); two counts of unlawful possession of a weapon in the third degree, N.J.S.A. 2C:39-5(b); and one count of employing a juvenile to commit a crime in the first degree, N.J.S.A. 2C:24-9(a). All the crimes charged had at their factual core three armed robberies that defendant was alleged to have committed--two on August 13, 2004, and a third on August 14, 2004, all in South River.

Defendant filed pretrial motions 1) to suppress his statement given to the police upon his arrest; and 2) to sever certain counts in the indictment from others.*fn1 On January 28, 2005, however, defendant, with counsel present, indicated that he now wished to enter guilty pleas to two of the armed robberies pursuant to a plea bargain struck with the State. Judge James F. Mulvihill asked if defendant wished to "withdraw [his] motion to sever and also [his] Miranda motion."*fn2 Defense counsel responded, "[W]e will withdraw those two motions."

Pursuant to the plea agreement, the State was to recommend that concurrent sentences be imposed upon the two charges, that the maximum sentence not exceed fifteen years, and that the remaining counts of the indictment be dismissed. Defense counsel acknowledged that those were the terms of the plea bargain and further acknowledged that the No Early Release Act (NERA)*fn3 would apply and defendant would not be eligible for parole for approximately twelve years and nine months.

During the ensuing colloquy with Judge Mulvihill, defendant acknowledged his signature on the plea forms, his understanding of the terms of the plea agreement, that he was waiving his rights to a trial by jury, that he was entering his guilty plea without any threat or coercion, and that he was in fact guilty of the charges. Thereafter, under oath, defendant admitted committing two of the robberies while armed with a BB gun and provided a factual basis to support a guilty finding as to both charges.

Prior to his sentence date, and now represented by a different attorney, defendant moved to withdraw his pleas. In a short letter brief supporting the motion, successor defense counsel argued that defendant's Miranda motion was "viable inasmuch as the State . . . acknowledged that [] defendant initially choose (sic) to remain silent and refused to waive his right to remain silent." Counsel further argued that "[o]nly a testimonial hearing could determine if [defendant's] rights were violated or honored," and that "[a]bsent the admissions, very little evidence tied [defendant] to the crimes." Defendant argued that "absent any acknowledgment that [] [he] was knowingly[,] voluntarily or intelligently waiving his right to proceed on the crucial Miranda [motion]," his guilty pleas should be set aside.

The State opposed the motion and the judge considered oral argument on June 17, 2005, the date previously set for defendant's sentencing. In his oral opinion, Judge Mulvihill reviewed the transcript of the plea proceedings and concluded 1) that defendant understood the terms of the plea agreement; 2) that defendant acknowledged completing and understanding the plea forms and that he was satisfied with his attorney's representation; 3) that defendant fully understood the rights he was waiving as a ...


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