NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-03-0654.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
Before Judges Axelrad and Haas.
Defendant John Vanness, who pled guilty to third-degree passing a bad check, N.J.S.A. 2C:21-5, appeals from denial of his pre-sentence motion to withdraw his plea. By request of defendant, we removed this case from an ESOA calendar, R. 2:9-11, to a plenary calendar. We affirm.
Defendant was indicted on this charge on March 18, 2010. On April 19, 2010 he retained private counsel, James Leonard, Jr. On May 10, 2010, represented by Leonard, defendant pled guilty to the charge. Defendant acknowledged he was pleading guilty voluntarily because he believed he was guilty, with full knowledge of his exposure, the terms of the plea (including three years probation conditioned on 220 days in the county jail and almost $13, 000 in restitution), and the rights he was waiving. He also expressed satisfaction with counsel.
In providing a factual basis, defendant admitted that on September 30, 2009, he deposited into a TD bank account an $8000 check that he issued from a closed business account to his brother Frank, knowing the bank would not honor the check. Defendant acknowledged he "deposited a bad check[, ]" explaining "the account was closed" so "there wasn't enough money to satisfy it[.]" When asked by Judge Bernard DeLury, Jr. whether "[t]his was more than just forgetting or slipping your mind; you knowingly issued a check knowing that the TD bank would be out of the money if it was cashed, is that true?" defendant responded, "[t]hat's correct." Judge DeLury accepted the plea as knowing and voluntary, with an adequate factual basis, found defendant guilty, ordered a presentence report, and scheduled sentencing for June 18, 2010.
In the interim, however, defendant was indicted on another count of third-degree passing a bad check, i.e., depositing a $7500 check issued to his brother from the same closed business account, so sentencing was postponed. The Public Defender's Office was assigned to represent him in the second indictment.
Leonard represented Frank in a violation of probation (VOP) matter in another county unrelated to this incident. He entered an appearance on his behalf on April 26, 2010 and ceased representation on September 30, 2010, when Frank pled guilty to the violation.
Defendant's pending cases were adjourned multiple times from June through December 2010. On December 20, 2010, Leonard moved to be relieved as defendant's counsel on the first indictment, which was granted and the case was also assigned to the Public Defender's Office. Assigned counsel then entered into negotiations with the State on defendant's behalf; ultimately, the State agreed to dismiss the second indictment and proceed to sentencing on the first indictment. On January 19, 2011, defendant appeared for sentencing on the first indictment and advised, through assigned counsel, that he sought to withdraw his guilty plea. The judge granted an adjournment for defendant to file a formal motion.
In his motion, defendant asserted a general claim of conflict of interest based on dual representation by Leonard, claiming Frank was an unindicted co-conspirator. Defendant also asserted he was innocent because TD notified his brother that the checks were ...