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State v. Vitello

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 7, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARIAN VITELLO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 09-10-1946.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 28, 2010

Before Judges Axelrad and Espinosa.

In this appeal, defendant seeks to vacate a condition of his plea agreement that he knowingly and voluntarily agreed to without objection. We affirm.

Defendant Darian Vitello, a police officer for ten years, was charged with making terroristic threats, N.J.S.A. 2C:12- 3(a), to a special police officer while both were on duty.

Thereafter, he pled guilty to a downgraded charge, the disorderly persons offense of harassment, N.J.S.A. 2C:33-4(b), pursuant to a plea agreement. The terms of the plea agreement were set forth on the plea form in response to the direction, "Specify any sentence the prosecutor has agreed to recommend" as follows:

Non-custodial conditioned upon forfeiture of his present position as a police officer and permanent disqualification from public employment within the State of New Jersey pursuant to N.J.S.A. 2C:51-2d. Also as a material condition of this plea agreement, defendant hereby waives his statute of limitations defense pursuant to this plea.

At the time that defendant entered his guilty plea, the prosecutor repeated these terms of the plea agreement on the record. The trial court conducted a careful review of all pertinent issues with the defendant and specifically addressed the forfeiture of public employment:

THE COURT: Okay. Now back to your plea agreement, . . . if you turn to Page 3 at Paragraph 13, is the sentence that the Prosecutor has agreed to recommend, and that was just placed on the record, I just wanted to make sure that you understand that, it is suggesting non-custodial probation - - a non-custodial sentence, I don't believe there's going to be probation here, conditioned upon forfeiture of your present position as a police officer and permanent disqualification from public employment within the State of New Jersey pursuant to . . . N.J.S.A. 2C:51-2(b). Do you understand that, sir?

DEFENDANT: Yes.

After the court accepted the guilty plea as being knowing, intelligent and voluntary and having a factual basis, the court proceeded to the forfeiture of public office order and again addressed defendant:

THE COURT: Okay. Okay. I will now sign the forfeiture of public office pursuant to N.J.S.A. 2C:51-2. It has been also signed -- Mr. Vitello, you signed that form. Is that correct, sir?

DEFENDANT: Correct.

THE COURT: All right. And that is - -and that has been witnessed by Mr. Honecker. Mr. Vitello, do you have any question about the forfeiture of public office form that I just signed?

DEFENDANT: Not at this time.

THE COURT: Okay. Well, this is the time to ask since I'm signing it.

DEFENDANT: No. I don't have any questions for you.

Defendant waived a presentence investigation and was sentenced immediately after entering his guilty plea. Both the prosecutor and defense counsel referred to the fact that defendant had forfeited both his position and the right to hold public employment in the State of New Jersey. In asking the court to impose the minimum financial penalties, defense counsel stated,

[Defendant] was a police officer for almost ten years[;] he's giving up that position as a result of this plea today. He understands the nature and consequences of his plea, and the fact that he can no longer hold public office in the State of New Jersey.

In this appeal, defendant does not retreat from his own statements or those of his counsel as to the fact that he knowingly, intelligently and voluntarily entered a guilty plea, understanding that one of the conditions of the plea agreement was a permanent disqualification from holding public office in the State of New Jersey. Moreover, in his appeal, he did not ask to withdraw his guilty plea. Instead, he only challenges the permanent disqualification from holding public office in the State of New Jersey on the grounds that the order of forfeiture was submitted to the trial court without a statement of reasons for declining to seek a waiver of the forfeiture pursuant to Flagg v. Essex County Prosecutor, 171 N.J. 561 (2002). We find this argument to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

Flagg requires the public employee to request a waiver before a judicial review process is triggered. Indeed, the Court identified the first step in the process in terms of the public employee's burden:

First, the public employee should bear the burden of proof to show that his or her request of the Attorney General or a county prosecutor to seek a waiver from the sentencing court is supported by mitigating circumstances warranting a waiver.

[Flagg, supra, 171 N.J. at 578 (emphasis added).] Defendant never requested a waiver, let alone satisfied this initial burden of proving that his request for a waiver was supported by mitigating circumstances warranting the waiver. He never raised the issue of a waiver at his plea or sentence, despite explicit inquiry by the court. To the contrary, the transcript shows that defendant understood the forfeiture and permanent disqualification conditions to be key provisions of the plea agreement.

This court does not entertain exceptions raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, defendant's failure to raise this issue prior to entering his guilty plea constitutes a waiver of the issue that he seeks to argue here. See State v. Knight, 183 N.J. 449, 470- 71 (2005).

Affirmed.

20100507

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