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State v. Winstock

October 29, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD M. WINSTOCK, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 05-08-01228.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 8, 2008

Before Judges Stern and Waugh.

Defendant appeals from his judgment of conviction, and specifically from the denial of his motion to withdraw his guilty plea. He was sentenced to probation with conditions.*fn1 Defendant argues that the application to withdraw his guilty plea to one count of maintaining a gambling resort and one count of promoting gambling should have been granted. He contends his motion should have been granted because he "was unaware of all the consequences of his plea," the court erred in finding that withdrawal would prejudice the State, and the defendant didn't merely have a "whimsical change of mind" for making his application. We find no abuse of discretion by the plea judge, and affirm the conviction.

Defendant's pre-sentence motion to withdraw was accompanied by a certification, which provided in part:

a. It was always my impression that if I did not enter a guilty plea, I would serve state prison time, no matter what offense I was convicted of. Since entering the plea, I have been made aware that such is not the case.

b. Prior to entering my plea, I was advised that my three children would be placed in foster care or the care of others if I was sent to prison.

c. The prior administration in the Morris County Prosecutors Office never advised me that attorney Amato Galasso was the target of a grand jury investigation or testified before the grand jury. That transcript was provided to my attorney merely days before my trial date. I never read same. Mr. Galasso apparently forged a signature on a specific document which, if proved at trial, would have cleared some of the defendants, including myself, of at least one of the charges. Further, his testimony was filled with inaccuracies and perjury.

d. All pleas were contingent on all other defendants pleading guilty. In essence, if one defendant did not take the plea, the deal would not have been given to anyone. My wife, Jennifer, was wrongfully made a defendant herein by the previous prosecutors office administration. She is a nurse. As a result of my plea, my job would be lost. Therefore, I relied on the fact that my wife was receiving PTI, and that her nursing license would not be in jeopardy at all, as she would be the sole income producer for likely a large period of time. My wife advised me that when she went down to probation after being accepted into PTI, she was told that the nursing license board would most definitely be notified, and that a suspension of her nursing privileges was undoubtedly possible. Again, one of the main reasons I pleaded guilty to anything was because I knew my wife would be able to support the family for a long while. I now realize that this may very well not be the case.[*fn2 ]

e. Although no one other than my wife and I knew this, my wife advised me that if I did not accept a plea, she would leave me and take my three children with her to North Carolina to live with her parents. This was absolutely devastating to me. I never advised either the court or my previous attorney of this, as it was quite embarrassing to me and my entire family. This case has received more than enough media coverage already.

f. I was adamant throughout this litigation that I wanted to testify before the grand jury. I was never given that opportunity, or a target letter.

g. Since entering my plea, I have done independent research relative to the gambling charges and potential experts to testify on my behalf. I am very confident that an expert should have been retained on my behalf to opine as to whether or not the elements of the gambling statutes were or were not satisfied. I implore this honorable court to now allow me to do so, in the interests of justice.

h. With all due respect to my previous attorney, I was coerced into doing what he thought was best for he and I, ...


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