On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 4638.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges Lintner and Sabatino.
Defendant, Greg Adamczyk, appeals from Judge Subryan's order denying him relief on a de novo appeal of his motion to withdraw his plea in Clifton Municipal Court to driving while intoxicated (DWI), N.J.S.A. 39:4-50. On appeal, defendant raises the following points:
THE TERMS OF THE PLEA BARGAIN HAVING BEEN VIOLATED, [DEFENDANT'S] GUILTY PLEA SHOULD BE VACATED AND [DEFENDANT] MUST BE AFFORDED A TRIAL.
THE INEFFECTIVE ASSISTANCE OF COUNSEL RENDERED [DEFENDANT'S] GUILTY PLEA AN INVOLUNTARY ACT AND THEREBY CONSTITUTED THE DENIAL OF [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW.
THE COURT SHOULD HAVE CONDUCTED AN EVIDENTIAL HEARING, PURSUANT TO RULE 3:23-8, BECAUSE [DEFENDANT'S] CERTIFICATION PRESENTED A PRIMA FACIE CLAIM THAT THE INEFFECTIVE ASSISTANCE OF HIS COUNSEL DENIED HIM DUE PROCESS OF LAW.
We reject defendant's contentions and affirm substantially for the reasons expressed by Judge Subryan in his comprehensive written opinion of January 16, 2007.
On July 15, 2005, defendant was issued a summons for failure to observe a traffic signal, N.J.S.A. 39:4-81 and DWI, N.J.S.A. 39:4-50. On March 17, 2006, pursuant to a plea agreement, defendant pled guilty in Clifton Municipal Court to DWI and the summons charging failure to observe a traffic signal was dismissed. At the plea hearing, defendant admitted that he drank three half-liter beers, he consumed enough to register a reading of .11 on the two breathalyzer tests conducted following his arrest, and his capacity to drive the evening he was stopped was affected by the alcohol he consumed. He also acknowledged that his plea was voluntary and knowingly entered, and he was satisfied with the services of his counsel.
Prior to defendant being sentenced as a third-time offender, defense counsel represented that he was in the process of appealing an order entered on March 14, 2006, in Passaic Municipal Court denying a petition for post conviction relief (PCR) of defendant's first DWI conviction in December 1992, based upon the contention that the Municipal Court judge had not taken a factual basis when he entered defendant's guilty plea. Representing that defendant was without an attorney when he pled guilty to his first DWI offense, counsel moved under State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990), for a determination that defendant was not subject to an increased jail term as a third-time offender. The Municipal Court judge imposed 180 days of incarceration in the county jail, a ten-year license suspension, costs, and appropriate fines and penalties. Noting that defendant's Laurick ...