June 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARIANNE BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-11-1120.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 16, 2011
Before Judges Fisher and Grall.
Defendant appeals the denial of her petition for post- conviction relief (PCR), arguing, among other things, that the judgment cannot stand because she did not provide an adequate factual basis for her guilty plea. We find this and her other arguments to be without merit and affirm.
Defendant was indicted regarding her participation in the events that led to Linda Moore's death in Paterson on July 3, 1998. The indictment charged defendant, along with three co- defendants, with: first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); first-degree felony murder, N.J.S.A. 2C:11-3a(3); second- degree conspiracy, N.J.S.A. 2C:5-2; first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1). On February 20, 2001, defendant pled guilty to first-degree kidnapping. Pursuant to the plea agreement, the other counts were dismissed, and defendant was sentenced, on June 1, 2001, to a twenty-five year prison term, subject to an eighty-five percent period of parole ineligibility.
Defendant appealed, claiming only that the sentence was excessive. We affirmed, State v. Brown, No. A-6305-00 (App. Div. Feb. 19, 2002), and the Supreme Court denied defendant's petition for certification, State v. Brown, 174 N.J. 194 (2002). On January 13, 2006, defendant filed a pro se PCR petition, which was amended by assigned counsel in March 2007. Defendant argued that: she was heavily medicated when she entered her guilty plea; she did not provide a sufficient factual basis for her guilty plea; her attorney was ineffective for allowing her to plead guilty and during his representation of her at sentencing; and her appellate counsel was ineffective for failing to raise these arguments during her direct appeal. The PCR judge heard counsel's argument, did not conduct an evidentiary hearing, and denied relief for the reasons set forth in an oral opinion.
Defendant appealed, raising the following arguments for our consideration:
I. THERE WAS NO FACTUAL BASIS FOR MS. BROWN'S PLEA.
II. IN THE ALTERNATIVE, THIS MATTER SHOULD BE REMANDED FOR A NEW HEARING ON THE INADEQUATE FACTUAL BASIS CLAIM BECAUSE PCR COUNSEL FAILED TO REPRESENT MS. BROWN AND ALSO UNDERMINED THIS CLAIM SO AS TO RENDER THE PCR HEARING MEANINGLESS.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Point I. A person is guilty of kidnapping if, among other things, he or she "unlawfully confines another for a substantial period, with . . . [the] purpose . . . [t]o inflict bodily injury on or to terrorize the victim or another." N.J.S.A. 2C:13-1b(2).
In pleading guilty to kidnapping, defendant testified that she directed her son to prevent the victim from leaving defendant's apartment, knowing that he would comply. Indeed, the record thoroughly supports this element of the offense:
Q. You told [the other defendants] to keep [the victim] in the apartment; is that correct?
A. That's correct.
Q. Because you wanted your money back; is that right?
A. That's correct.
Q. So you left for awhile. They kept her in the apartment at your direction; is that right?
A. Yes, that's correct.
Defendant argues that her testimony did not provide support for the additional element that the victim's confinement was for the purpose of "inflict[ing] bodily injury on or to terrorize the victim or another." Defendant, however, also provided the following testimony at the plea hearing:
Q. There came a point in time when you and Michael Brown, your son, and Linda Moore were in the dining room?
Q. There were some tools on the dining room table; is that right?
Q. And one of the tools was a hammer?
A. That's correct.
Q. And Michael picked up the hammer?
A. That's correct.
Q. Did there come a point in time when he told her, that he smashed it into the table and said he wanted the money back?
Q. What was the reason for him smashing the hammer into the table?
A. He was trying to scare Linda. I don't think he actually meant to hit her but he got carried away and he just reflex or I don't know, he was so out of it too.
Q. Came a point in time when he actually hit the table and put a hole in the table?
Q. In effect, would you agree that within the language of the statute he did it to scare or terrorize her so that she would give the money back; is that right?
Q. If you were to tell Michael to stop, look, I want you to release this woman, it's my understanding that Michael would have released her and she would be able to leave the apartment; is that correct?
A. Yeah, I guess you could say that.
Q. So it's fair to say that, at the very least, you aided and abetted the kidnap, you participated in the kidnap to the extent of having her held inside the apartment?
Q. And during the course of the kidnap, Linda Moore would up being killed by Michael . . . is that correct?
This testimony adequately demonstrates that defendant confined the victim with the purpose to terrorize her in order to regain money she believed the victim had stolen from her.
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