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State of New Jersey v. David Connolly

July 24, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID CONNOLLY, A/K/A DAVID CASTRO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 89-09-3928, 89-09-3929, 89-09-3930 and Accusation No. 90-11-2336.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 17, 2012

Before Judges Sabatino and Kennedy.

Defendant David Connolly, who was convicted of various offenses in 1990 pursuant to a negotiated comprehensive plea agreement, appeals the trial court's April 19, 2010 written decision denying his motion to withdraw his guilty plea and proceed to trial. We affirm that decision rejecting defendant's extremely belated application.

The pertinent background is as follows. In 1989 and 1990 defendant was charged with numerous indictable and other offenses in Essex County. With the assistance of his defense counsel, defendant negotiated a global plea agreement in which he pled guilty to several of the charged offenses while others were dismissed.

More specifically, defendant pled guilty on November 26, 1990 to count one of Indictment No. 89-09-3928 charging him with third-degree criminal attempt, N.J.S.A. 2C:5-1; count one of Indictment No. 89-09-3930 charging him with third-degree burglary, N.J.S.A. 2C:18-2, count two of that same indictment charging him with fourth-degree attempted theft, N.J.S.A. 2C:20-3, count three of that indictment charging him with fourth-degree criminal mischief, N.J.S.A. 2C:17-3; count one of Accusation No. 90-11-2336 charging him with fourth-degree aggravated assault, N.J.S.A. 2C:12-1, and count two of that accusation charging him with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5.

As part of the plea agreement, the State agreed to dismiss numerous other pending charges against defendant, including Indictment No. 89-09-3929, which had charged him with third-degree criminal attempt, N.J.S.A. 2C:5-1; Accusation No. 90-11-2335, which had charged him with fourth-degree assault, N.J.S.A. 2C:12-1, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5; count three of Accusation No. 90-11-2336, which had charged him with third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and Newark Municipal Court Complaint No. W-617613.

At the November 1990 plea proceeding, defendant offered a factual basis as to each of the offenses for which he pled guilty. For Indictment No. 89-09-3928, defendant admitted that on July 16, 1989, he pulled down the metal gate of a Newark restaurant with an intent to steal items inside. For Indictment No. 89-09-3930, defendant admitted that on July 16, 1989, he broke the window of a parked car in Newark and opened the car's door with the intent of stealing the car's radio. For Accusation No. 90-11-2336, defendant admitted that on June 3, 1990, he had an argument with another individual and pointed a handgun at him, without having a permit to carry that gun. The trial judge at the time accepted defendant's plea, after verifying through customary inquiries that defendant understood what he was doing in admitting his guilt, that he was doing so voluntarily, and that he had ample time to review the plea agreement with his attorney.

Pursuant to the negotiated terms of the plea, the State agreed to recommend an overall custodial term of five years, with a two-year period of parole ineligibility. In January 1991, defendant was sentenced in accordance with the plea agreement to a five-year custodial term on Indictment No. 89-09-3928, a concurrent five-year term on count one of Indictment No. 89-09-3930; concurrent eighteen-month terms on counts two and three of Indictment No. 89-09-3930; a concurrent eighteen month term on count one of Accusation No. 90-11-2336; and a concurrent five-year term on count two of Accusation No. 90-11-2336. Defendant has since completed those sentences. At the time he filed his brief on this appeal, he was then in federal custody on an unrelated matter.

Defendant filed no direct appeal of his convictions and sentence. Instead, he took no action until nearly twenty years after his sentencing, when in January 2010 he filed a pro se motion to withdraw his guilty plea. He also requested that the court vacate the judgment of conviction on Indictment No. 89-09- 3929, which, as the State conceded, had been inadvertently entered contrary to the terms of the plea agreement.

After considering defendant's motion and the opposition papers filed by the State, the trial court agreed to vacate the judgment of conviction in Indictment No. 89-09-3929 but otherwise denied relief to defendant. This appeal followed.

Through his assigned counsel on the present appeal, ...


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