July 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL T. LEGGETT A/K/A BRIAN ABERCROMBIE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-06-1165.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2007
Before Judges R. B. Coleman and Lyons.
Defendant Michael T. Leggett appeals from the denial of a motion to withdraw his guilty plea, primarily on the ground that the plea was not knowing and voluntary and on the further ground that the factual basis for the guilty plea was inadequate. We have carefully considered defendant's arguments in light of the facts and applicable law, and we affirm the order denying his motion to withdraw the plea.
The relevant factual and procedural history are as follows: defendant was charged in three counts of a six count indictment.*fn1
Those charges were second degree robbery, in that he did use force upon Garabed Sarkissian and/or did inflict bodily injury upon Garabed Sarkissian in the course of a theft, N.J.S.A. 2C:15-1 (count one), fourth degree riot, N.J.S.A. 2C:33-1 (count three), and second degree witness tampering, N.J.S.A. 2C:28-5 (count six). On October 23, 2006, he agreed to enter a plea of guilty to count one, as amended from second degree robbery to third degree aggravated assault, N.J.S.A. 2C:12-1b(7), and to count six second degree witness tampering, N.J.S.A. 2C:28-5a. The State agreed to dismiss count three, riot, and to recommend that the defendant receive youthful offender's status, receiving an indeterminate sentence not to exceed five years. Defendant was twenty-years-old at the time.
As a part of the plea colloquy, defendant admitted that on September 11, 2005, he punched the victim in the face and that victim fell to the floor. The victim was then kicked by a group of youths. While defendant denied being part of the group that kicked the victim, he acknowledged that following his punch and the kicks from others, the victim had difficulty breathing. According to the judgment of conviction, the court sentenced defendant as follows:
COUNT 6: 5 YEARS NJSP INDETERMINATE.
COUNT 1: 4 YEARS NJSP TO RUN CONCURRENT TO COUNT 6.
DEFENDANT IS BEING SENTENCED AS A YOUTHFUL OFFENDER.
COUNT 3 DISMISSED.
On appeal, defendant raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN FAILING TO VACATE THE PLEA. THE DEFENDANT/APPELLANT DID NOT UNDERSTAND WHAT HIS SENTENCE WAS, OR WHAT HE WAS BEING SENTENCED TO. THE PLEA FORM WAS IMPROPERLY COMPLETED, AND THE PLEA ITSELF WAS INCOMPETENTLY DONE.
POINT II: THE TRIAL COURT ERRED IN NOT CONDUCTING A FULL PLENARY HEARING. DEFENDANT WAS NOT PERMITTED TO PRESENT APPROPRIATE TESTIMONY. THE INDETERMINATE SENTENCE IS A HISTORIC RELIC AND SHOULD NOT HAVE BEEN ACCEPTED NOR EVEN PRESENTED.
Based on our review of the colloquy at the plea hearing and the findings of the court in respect of the amount of time defendant's attorney spent with defendant discussing the advisability of accepting the plea offer, we find no basis to disturb the exercise of discretion by the trial court.
"'[A] guilty plea voluntarily entered may not be withdrawn except pursuant to leave granted in the exercise of the trial judge's discretion.'" State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 16 (App. Div.), certif. denied, 66 N.J. 312 (1974)). A trial court's denial of a defendant's request to withdraw a guilty plea will be reversed on appeal only if there was a "clearly erroneous" exercise of discretion. State v. Simon, 161 N.J. 416, 444 (1999); Smullen, supra, 118 N.J. at 416.
On January 12, 2007, defendant appeared with new counsel and sought to withdraw his plea.*fn2 Among other things, defendant contended that he had spent only one-half hour with his original counsel discussing the guilty plea. The court heard arguments on the motion on that date, but eventually adjourned the matter to January 26, 2007, so that defense counsel could procure a transcript and review the videotape of the prior plea hearing. The court also indicated that it would direct defendant's original counsel to be present at the hearing to answer factual questions regarding the length of time that was spent discussing the plea offer with defendant.
On January 26, 2007, the court heard testimony from both defendant and defendant's original counsel regarding the circumstances surrounding defendant's decision to plead guilty. The court then determined it would reject defendant's request to withdraw the plea. The court concluded:
[W]e go through these questions. We talk about the punching. We talk about the loss of breathing. We talk about your understanding. There's absolutely no question in my mind that the plea that you gave was voluntary, intelligent and knowing. There's absolutely no question in my mind that you understood everything that was happening.
Now the punching. There was no question that you participated in the punching. You said that you did. There was no question that these other people were involved in kicking. And there appeared to be no question in my mind that the victim was injured to the point that he was having some difficulty breathing.
Under such circumstances and particularly in light of the court's credibility assessments of defendant and defendant's counsel, we are satisfied the court appropriately determined that counsel "spent substantially more time going over the plea than defendant had alleged in support of his application." We defer to the factual findings of the trial court in that regard. See State v. Locurto, 157 N.J. 463, 474 (1999).
Regarding defendant's argument that there was an insufficient factual basis for his guilty plea to aggravated assault and witness tampering, the court concluded that the elements of the offense of aggravated assault had been satisfied. We agree with the court. We note, for example, that a person commits an aggravated assault when he
[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury . . . . [N.J.S.A. 2C:12-1b(7).]
Pursuant to N.J.S.A. 2C:11-1d, the term "significant bodily injury" is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any of the five senses." Defendant admitted without qualification that he punched the victim in the face, and he acknowledged that after his punch and the kicks by others, the victim had trouble breathing:
Q: [A]fter the assault took place, he was able -- unable to breath unhampered, whether it be because of the punch or the kicks or whatever. You're not disputing the fact that he may have had trouble breathing as a result of that, but not that he was -- he wasn't permanently injured, but there was a -- a loss of function for a -- a -- a --some period of time after the assault.
A: You telling me this.
Q: I'm -- you're not contesting that fact, are you?
Q: And if the reports were to bear that out, you're -- you're not in disagreement with that, because you witnessed the act that you committed, as well as the acts that others committed at the same time in this assault. Is that correct?
Those acknowledgements provide substantial credible evidence to support the determination of the trial judge to accept the plea and to deny the motion to withdraw.
We note further that a person commits the offense of witness tampering if the person, "believing that an official proceeding or investigation is pending or about to be instituted, he knowingly attempts to induce or otherwise cause a witness or informant to: . . . withhold any testimony, information, document or thing . . . ." N.J.S.A. 2C:28-5a. "The offense is a crime of the second degree if the actor employs force or threat of force. Otherwise it is a crime of third degree." Ibid. The key to whether a statement is a threat "is the jury's appraisal of the context, as well as the content of the statement." State v. Crescenzi, 224 N.J. Super. 142, 147 (App. Div. 1988).
Here, defendant admits he told the victim's brother that unless the victim dropped his charges, "things could get pretty ugly around here" or something of that nature. More particularly, the colloquy at the plea hearing proceeded as follows:
Q: Now, at a later point in time, you had a -- a -- an encounter with Mr. Sarcesian's brother. Is that right?
Q: And you did have an encounter with him at a convenience store. Is that right?
A: Stop and Shop.
Q: Stop and Shop. Okay. And you --you said certain words to him, to the effect, basically, that you -- you talk to your brother to drop these charges or things could get pretty ugly around here or something of that nature.
Q: Or refrain from testifying. Is that right?
Viewed in the context of the earlier assault, it is clear that one would reasonably interpret defendant's statement as a threat which the victim's brother was expected to communicate to the victim. Defendant candidly acknowledged that the statement to the victim's brother was admittedly an attempt to induce the victim to withdraw charges or to withhold testimony or information concerning the assault. The threat of further violence or force was implicit. The plea to the second degree witness tampering charge was amply supported by defendant's sworn statement.
Finally, "[a]ny person, who at the time of sentencing, is less than 26 years of age and who has been convicted of a crime may be sentenced to an indeterminate term at the Youth Correctional Institution Complex . . . instead of the sentences otherwise authorized by the code." N.J.S.A. 2C:43-5; see also State v. Scherzer, 301 N.J. Super. 363, 496-97 (App. Div.) certif. denied, 151 N.J. 466 (1997); State v. White, 186 N.J. Super. 15, 18 n.2 (Law Div. 1982). Defendant argues the five-year indeterminate sentence was improper, and the State agrees that the judgment of conviction should be amended to indicate simply that defendant is serving an indeterminate sentence. It agrees the number of years specified by the trial court should be deleted from the judgment. "[T]he objective of a [Young Adult Offender Act] sentence is early release upon rehabilitation." State v. Corriero, 357 N.J. Super. 214, 218 (App. Div. 2003).
Defendant's remaining argument, that, he and his original counsel did not appreciate the significance of a indeterminate sentence is so lacking in merit that it does not warrant discussion in a written opinion. R. 2:11-3(e)(2).
The matter is accordingly remanded for correction of the judgment to reflect an indeterminate sentence without reference to a term of years. Otherwise, the judgment of conviction is affirmed.