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State v. Gramaglia

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
SALVATORE GRAMAGLIA, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-11-0913.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 25, 2010

Before Judges Rodríguez and Chambers.

The State appeals from the probationary sentence imposed upon defendant Salvatore Gramaglia. He pleaded guilty, pursuant to an agreement with the State, to five counts of fourth degree forgery, N.J.S.A. 2C:2-6 and 2C:21-1a(2); five counts of fourth degree uttering a forged instrument, N.J.S.A. 2C:2-6 and 21-1a(3); two counts of third degree exhibiting a false document, N.J.S.A. 2C:2-6 and 2C:21-2.1c; second degree identity theft, N.J.S.A. 2C:2-6 and 21-17a(1); and second degree theft by deception, N.J.S.A. 2C:2-6 and 2C:20-4.

The facts of the offense essentially stem from defendant's fraudulent conduct during divorce proceedings. In September 2005, according to Maria Gramaglia, defendant approached her to sign mortgage papers to refinance the family home. Defendant needed to refinance the marital home in order to pay debts for his business. She refused to do so. The Gramaglias were in the process of divorcing. On September 8, 2005, a notary for Title Today, Inc. visited defendant's place of business to obtain his signature on mortgage papers. Defendant fraudulently obtained the refinance loan by having his girlfriend, co-defendant Paola Benhayon, impersonate his wife. The loan closed and defendant received the proceeds of the loan. When the fraud was discovered, defendant was charged.

The State agreed to treat the second degree convictions as third degree conviction for purposes of sentencing and recommend concurrent terms aggregating three years. The State also agreed not to oppose participation in the Intensive Supervision Program and placed on the record a notice that it would reserve its right to appeal the sentence if representations by Judge Paul Armstrong resulted in defendant receiving a probationary sentence subject to a three-year suspended term in New Jersey State Prison.

Judge Armstrong imposed a concurrent three-year term on all convictions and a three-year suspended prison term, as well as payment of $700 VCCA penalty, a $1,050 SNSF, $30 LEOTEF and a $25 per month probation supervision fee. The judge found one aggravating factor listed in N.J.S.A. 2C:44-1a, i.e., (9) the need for general deterrence; and seven mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (1) defendant's conduct neither caused nor threatened serious harm; (2) defendant did not contemplate that his conduct would cause or threaten serious harm; (6) defendant will compensate the victim of his conduct for the damage she sustained and will participate in a program of community service; (7) defendant has no history of prior delinquency or criminal activity; (8) defendant's conduct was the result of circumstances unlikely to recur; (9) the character and attitude of the defendant indicate that he is unlikely to commit another offense; and (10) the defendant may still be particularly likely to respond affirmatively to probationary treatment. The judge found that the mitigating factors "are controlling and the plea agreement is reasonable."

In imposing the sentence, the judge gave the following statement of reasons:

[a] review of the defendant's criminal history reveals: [t]he defendant has no prior identifiable juvenile offense history. As an adult, the present offense represents the defendant's first arrest and conviction as an adult.

[Defendant]'s personal history reveals:

[h]e is a 55 year old divorced male . . . . He was married in 1978 and is the father of four children born of that marriage. Defendant related he suffers from anxiety and he has high cholesterol. He stated he drinks alcohol on rare occasions. He denied the use of or experimentation of any type of CDS. He has never been involved in any psychological or psychiatric treatment in the past. . . .

[W]eighing the gravity of this first offense with respect to the peculiar facts of this case, the Court concludes a serious injustice would result in imposing a prison sentence, consequently, as per the supplemental plea form for non-negotiated pleas, on the fourteen counts contained in [the] Indictment, . . . defendant is hereby sentenced to serve three years probation.

It shall be a special condition of probation that the defendant shall serve 3 years NJ State Prison/SUSPENDED.

The State appealed. The matter was scheduled for our Excessive Sentence Oral Argument calendar. We granted defendant's motion and removed it to the plenary calendar. State v. Gramaglia, No. M-2251-08 (App. Div. Jan. 20, 2009). We now affirm.

The State appeals contending that the judge abused his discretion by sentencing defendant to a non-custodial sentence. We disagree.

We are convinced that the sentence imposed here does not represent an abuse of the judge's sentencing discretion. State v. Whitaker, 79 N.J. 503, 512 (1979). The factors identified by the judge are supported by the record. State v. Johnson, 42 N.J. 146, 162 (1964). The sentence does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

20100819

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