On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0555.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Winkelstein.
Following an eleven count indictment, defendant Mawafag Abedallah pled guilty to third-degree insurance fraud, N.J.S.A. 2C:21-4.6 (a) and (b), as amended from a second-degree offense. Prior to sentencing, defendant filed a motion to withdraw his guilty plea, asserting there was no factual basis for the plea, he had been inadequately represented, and the plea had been coerced. The court denied the motion. In accordance with the negotiated plea, Judge Camille Kenny dismissed the remaining counts of the indictment, primarily consisting of theft by deception, and imposed a four-year probationary sentence and $67,850 in restitution. Defendant now appeals, arguing he did not enter the plea knowingly and voluntarily as: (1) the factual basis was supplied mostly by counsel and the court and "he did not really understand what was said," and (2) his plea was entered without his attorney having investigated potential legal defenses. Defendant further contends the court should have vacated his plea based on his assertion of innocence and explanation of how he ran his business contained in the certification provided with the motion. Based on our review of the record and applicable law, we affirm, save for defendant's claim of ineffective assistance of trial counsel, which we preserve for future application by defendant for post-conviction review.
On the trial date of January 31, 2006, defendant executed a plea form agreeing to plead guilty to Count One of Indictment 05-04-0555, as amended, insurance fraud in the third degree, in return for dismissal of the remaining counts of the indictment and an unindicted complaint, and imposition of the aforementioned recommended sentence of probation and restitution to the nine victims. During the colloquy on that date, defendant responded in the affirmative to the judge when she asked defendant if the charge in the indictment was true, i.e., whether while working with Sphinx Express Transit, Inc. he "knowing and unlawfully caused to be made a misleading statement of material fact or omit[ted] a fact from any record or document that a person submit[ted] in connection with a claim for payment or reimbursement or other benefit from an insurance company or for applications for renewal" on at least four occasions. Specifically, defendant stated he added some vehicles to his insurance policy without notifying the insurance company and responded affirmatively to the judge's question as to whether he made "[other people] think that they had insurance in any way by issuing a card or something like that?"
In addition to providing a factual basis for the guilty plea, defendant, who was forty-one, stated he had a Masters degree and read and wrote English. Defendant further acknowledged he understood the specific terms of the plea agreement, he was not made any promises as part of the plea, he was not under the influence of alcohol or drugs, his attorney went over the plea form and explained the plea to him before he signed the form, he waived specific rights, he was satisfied with the services of defense counsel, no one forced or threatened him into signing the form or pleading guilty, and he was pleading guilty of his own free will because he was guilty.
In connection with the Pre-Sentence Report (PSR), on February l6, 2006, defendant wrote and signed a document admitting to the fraud, which stated, "Yes, I'm guilty. I added some vehicles to my insurance policy without telling the insurance company." However, four months later, defendant, represented by new counsel, filed a motion to withdraw his guilty plea. He submitted a certification claiming that prior to the trial date his attorney had informed him the State had no case and there was nothing to worry about, but on the trial date his attorney told him it would be in his best interest to plead guilty because the jury "might among other things be adverse given [his] ethnic background." Defendant further claimed his attorney told him what to say and attempted to reinforce his plea by suggesting there was no coverage for the vehicles when, in fact, the vehicles were insured. Defendant professed his innocence, explained how he operated his business and attached documentation that allegedly supported his position. At argument defendant further contended his plea counsel was ineffective because he had not properly investigated and presented the documents and appropriate defenses to the charge.
In denying defendant's motion, Judge Kenny found defendant admitted his guilt to the charge without being coerced, with a proper factual basis, which he reiterated to the PSR investigator. Noting that "[a] plea entered pursuant to negotiations has been held to be entitled to a higher degree of finality," the judge commented that she had "adjourned the trial date once or twice for continued negotiations[,]" which included exchange of "many if not all" of the documents attached to defendant's certification. She was satisfied under the totality of the circumstances that defendant had voluntarily entered the guilty plea on the trial date, after consulting trial counsel and another attorney, knowing the State was ready to proceed, because he did not wish to risk a trial. The judge further found that defendant's plea resulted in "a real bargain" in that he received a probationary offer for what was originally a second-degree charge, carrying a five-to-ten-year prison term.
At sentencing on September l5, 2006, after defendant exercised his right of allocution, the judge further elaborated upon her reasons for denying his motion to vacate the plea, found aggravating and mitigating factors, found defendant entitled to the presumption of non-incarceration, and imposed the negotiated sentence. This appeal ensued.
On appeal, defendant renews the arguments he made to the trial court on his motion to retract his guilty plea. To the extent defendant's claims of ineffective assistance of trial counsel are reliant on matters outside the record, they are more suitable for resolution in a post-conviction relief petition and, therefore, we decline to address them here on direct appeal. See State v. Preciose, 129 N.J. 451 (1992); State v. Dixon, 125 N.J. 223 (1991); State v. Walker, 80 N.J. 187 (1979); State v. Sparano, 249 N.J. Super. 4ll, 419 (App. Div. 1991) ("Generally, a claim of ineffective assistance of counsel cannot be raised on direct appeal.").
We turn now to defendant's argument that the court erred in denying his motion to withdraw his guilty plea. A motion to withdraw a plea of guilty is committed to the sound discretion of the trial judge. State v. Slater, 198 N.J. 145, 156 (2009). "[P]re-sentence motions to withdraw a plea are governed by the 'interest of justice' standard in Rule 3:9-3(e) . . . ." Id. at l58. Although this discretion should ordinarily be construed liberally where the motion is made before sentencing, State v. Smullen, 118 N.J. 408, 416 (1990); State v. Deutsch, 34 N.J. 190, 198 (1961), such liberality does not mean an abdication of all discretion, State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974). Moreover, the burden is on the defendant to set forth a plausible basis for his request and his good faith for asserting a defense on the merits, weighed against the longstanding principle recognizing the State's strong interest in the finality of pleas. Smullen, supra, 118 N.J. at 416 (quotations omitted). Our Supreme Court has recently directed trial judges to consider and balance the following four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. Slater, supra, 198 N.J. at 157-58.
Though not having had the benefit of the Slater decision, we are satisfied Judge Kenny considered the appropriate factors and performed the proper analysis in denying defendant's motion to vacate his guilty plea. Accordingly, we affirm substantially for the reasons articulated by the court in response to the motion and during sentencing. We add the following comments.
The record demonstrates the court considered defendant's professed claim of innocence set ...