On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Municipal Appeal No. 5894.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Wefing.
On February 13, 2006, defendant entered a conditional guilty plea to driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50, in the Kenilworth Municipal Court.*fn1 At the plea hearing, she acknowledged that she was "giving up [her] right to have a trial in this matter," and that she did so "freely and voluntarily." She was a first offender, and the judge explained the consequences of the plea and of a future DWI conviction.
Defendant gave a factual basis for her plea, and acknowledged that she had "operat[ed] a motor vehicle in the Borough of Kenilworth" on September 26, 2005, after having "a big glass of wine." Having had a .18 Alcotest reading, the judge stated, "it must have been one heck of a -- a huge glass of wine," to which defendant responded "yes." Defendant then added, "I just remember drinking wine. I don't know if I poured a little more drink in it. It was a tall glass and wide as a red -- red wine" and was "obviously" more than "one serving." She further acknowledged drinking enough to be impaired, having a .18 reading "which is actually . . . more than twice the legal limit," and drinking "enough in quantity to make a high reading." The sentence was imposed and, except for installment payments of the fine, was stayed at defendant's request because of the conditional plea.
On May 12, 2008, over 2 1/2 years following entry of her plea and after the Supreme Court decided State v Chun, 194 N.J. 54 (2008), defendant returned to the municipal court claiming she did not understand the consequences of what she was doing at the time of the plea. The matter was adjourned so that she could confer with the attorney who represented her at the time of the plea.
On June 16, 2008, defendant--then represented by her original counsel--moved to withdraw her plea because it was not knowingly and voluntarily entered. The motion was denied, and the judge imposed the sentence.
On trial de novo before Judge Joseph Donohue in the Law Division, defendant again argued that the plea should be withdrawn. She presented a certification in which she stated, among other things, that at the time of plea she was "very nervous," she "truly did not understand the ramifications" of the plea and she "did not really understand what was going on." She claimed she merely answered "leading questions" which made her "even more nervous," particularly because her attorney told her to "plead guilty to the charge." She added that when she started to investigate the Alcotest machine, she realized she "should not have entered a plea of guilty because [she] knew the glass of wine [she] drank would not produce a reading of .18." .
The judge denied the application, and proceeded to impose the same sentence. See State v Mull, 30 N.J. 231 (1959).
Judge Donohue gave a comprehensive opinion in denying the application to withdraw the plea. He examined the factors embodied in the Chief Justice's then recent opinion in State v. Slater, 198 N.J. 145, 157-58 (2009) and emphasized that "at no point" has defendant "state[d] that she was not impaired." He found defendant was not "credible" in her efforts at the municipal and county levels to withdraw her plea, and found no "manifest injustice" warranting a withdrawal.*fn2
We affirm the judgment substantially for the reasons expressed by Judge Donohue in his oral findings of March 27, 2009. In doing so, we add that we do not read his opinion as finding defendant guilty of DWI based on his comments concerning the factual background and what the police observed about defendant's appearance. The judge said "[a]ll of the facts in this case, even without considering the failed alcohol test, as I indicated, support her conviction for driving while intoxicated." We read this statement as part of the analysis of the Slater factors regarding the merits and the basis for denial of the motion to withdraw.
We appreciate the services of assigned defense counsel. The judgment of ...