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State v. Marfo

September 18, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GEORGE MARFO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 06-06-1165-I and 06-11-01891-A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 20, 2008

Before Judges A. A. Rodríguez and C. L. Miniman.

Defendant George Marfo appeals from his conviction following his guilty plea to two counts of second-degree robbery, N.J.S.A. 2C:15-1a(1) and fourth-degree possession of imitation firearms, N.J.S.A. 2C:39-4e. The trial court imposed a sentence consistent with the plea agreement, i.e., concurrent terms aggregating six-years with a NERA*fn1 parole disqualifier.

More than six months after the sentencing hearing, defendant moved to withdraw his guilty plea. He certified in support of his motion that the plea: (1) was unsupported by sufficient facts or evidence to sustain a conviction; (2) was the product of coercion and duress; and (3) resulted from ineffective assistance of counsel. He also certified:

Following my arrest on September 11, 2005, my family retained the services of Mr. John Carbone, Esq., to represent me in connection with the above charges. When presented with the facts and circumstances surrounding these allegations, Mr. Carbone assured my family that he would secure a disposition on my behalf involving nothing more than a sentence of probation.

Despite these assurances, Mr. Carbone failed to fully investigate the facts and circumstances surrounding this incident, failed to carefully review with me the discovery materials provided by the state and negotiated a plea bargain in which I was required to admit culpable conduct beyond that described by the victims or admitted to by myself. A review of the transcript of the plea proceedings reveals an allocution in which Mr. Carbone simply asked leading questions of me, inserting facts establishing essential elements of two crimes of robbery, not otherwise described or detailed in the discovery.

Mr. Carbone never ordered or obtained a copy of the Grand Jury minutes to determine whether sufficient evidence, establishing the essential elements for these offenses, was ever presented to the Grand Jury which returned this indictment.

The judge denied the motion and issued a written opinion, finding that:

The court is also not convinced that defendant did not understand the nature of the charges and the consequences of the plea. The record clearly shows that defendant had discussed the charges with an experienced criminal law attorney, had the charges explained to him and had enough time to discuss the matter with counsel. Furthermore, defendant acknowledged that his attorney answered all of his questions and clearly stated he was satisfied with the services of his attorney. Defendant also signed the plea agreement forms and was advised by the [c]court that the plea agreement would subject him to a sentence of six years in state prison with the requirement that he serve 85% of that sentence before becoming eligible for parole. He was also advised of the special provision of parole supervision. The foregoing facts show that that defendant understood the nature of the charges and the consequences of the plea.

On appeal, defendant contends:

THE GUILTY PLEA ENTERED BY DEFENDANT WAS CONSTITUTIONALLY INFIRM ...


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