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State v. Vitello

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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