On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-08-0961.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010
Before Judges Rodriguez and Miniman.
Defendant Frank Maltese appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
On January 8, 2007, pursuant to an agreement, defendant pleaded guilty to first degree aggravated manslaughter pursuant to N.J.S.A. 2C:11-4a. In exchange, the State agreed to dismiss related charges and recommend a maximum eleven-year term with a NERA*fn1 parole disqualifier, to run concurrent with any sentence imposed on a violation of probation. Defendant gave the following factual basis:
Q. And although the judge has discretion, I guess, to come down to 10, basically you should be pretty well set in your mind that that's what you would get, 11 years. Do you understand that?
Q. And you have to serve 85 percent of that, which is close to 10 years, between nine and 10 years, --
Q. -- do you understand that, before you're eligible for parole? And when you do get paroled, you're on parole for a five year period of time. And if you violate parole during that time, you're not just subject to the remaining time up to 11 years but five additional years. And if you violate during that time, you could go to prison for up to five years if it happens in the beginning of that period. Do you understand that?
Q. Okay. And this would run concurrent to any sentence you get out of Newark Municipal Court in violation of probation. Do you understand that?
Now, other than what I've just said here, has anything else been promised to you to get you to plead guilty?
Q. You are a U.S. Citizen, is that correct?
Q. Okay. Have you had enough time to discuss this with me?
Q. Do you feel you understand everything that's going on here?
Q. Do you have any questions?
Q. Do you understand that if the judge does not want to accept this plea agreement, she doesn't have to? However, if she wanted to give you a greater amount of time, she would first give you an opportunity to take back your guilty plea, let you plead not guilty and anything you said admitting your guilt here today in court could not be used against you if you went to trial under those circumstances?
Q. Okay. So, knowing the charges you're facing, the penalties for those charges, knowing about your right to a trial and knowing what the plea bargain offer is, do you want to go to trial or do you want to plead guilty under these terms?
Q. Okay. It charges that on May 4th, 2006 in Passaic, you killed Nuclus -- Nicholas Luciano under the doctrine of aggravated manslaughter recklessly under circumstances manifesting extreme indifference to the value of human life. We discussed the particular charge and what -- what the elements of that are, ----
Q. And do you feel that you are guilty of that offense?
Q. Did you know Nicholas ...