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State v. Urbina

Superior Court of New Jersey, Appellate Division

July 19, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
EDWIN URBINA, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 5, 2013

On appeal from Superior Court of New Jersey, Law Division, Camden County, Accusation No. 08-03-0979.

Robin Kay Lord argued the cause for appellant (The Law Office of Robin Kay Lord, LLC, attorneys; Ms. Lord and Richard W. Berg, of counsel and on the brief).

Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Hamett, of counsel and on the brief).

Before Judges Lihotz, Ostrer and Kennedy.

PER CURIAM

Defendant appeals his May 16, 2008 conviction, pursuant to a plea agreement, for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as well as the resulting seventeen-and- one-half year sentence of incarceration, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On April 11, 2011, defendant filed a petition for post-conviction relief (PCR), which he later withdrew without prejudice in order to pursue a direct appeal. By order of December 16, 2011, we granted defendant's motion for leave to file an appeal "as within time" pursuant to Rule 2:4-1(a).

Defendant raises the following arguments on appeal:

POINT I
SINCE THE FACTUAL BASIS ELICITED FOR DEFENDANT'S GUILTY PLEA INDICATED THAT HE WAS ASSERTING A COMPLETE DEFENSE TO THE CHARGE, THE TRIAL COURT ERRED IN ACCEPTING THE PLEA, AND DEFENDANT'S CONVICTION MUST BE REVERSED.
POINT II
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

We have considered these arguments in light of the record and applicable legal standards, and we affirm.

I.

We discern the following facts from the record, primarily from the transcripts of the plea and sentencing hearings, as well as the judgment of conviction and the pre-sentence investigation (PSI) report.

On November 27, 2007, on the advice of counsel, defendant, then sixteen years old, surrendered to the Camden Police Department, which had been seeking defendant in connection with the November 24, 2007 shooting of Edwin Torres. On that date, Camden Police found Torres dead on a sidewalk in Camden with "multiple gunshot wounds to his neck and head." Witnesses identified defendant as the shooter. Defendant was charged with an offense that, if committed by an adult, would constitute murder, N.J.S.A. 2C:11-3(a)(1), (2), and he was remanded to a youth correctional facility.

On March 27, 2008, defendant, represented by the same counsel, invoked N.J.S.A. 2A:4A-27[1] and elected to have the case transferred to the Law Division. The Family Part entered an order effecting the transfer.

Defendant then pled guilty to an accusation charging him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), in return for a sentence not to exceed seventeen-and-one-half years incarceration subject to NERA. Defendant and his counsel signed the plea form in which defendant acknowledged his understanding of the charge and the plea, his satisfaction with the advice of counsel and the waiver of his trial rights.

At the plea hearing, defendant was sworn and acknowledged that he had "plenty of time" to speak with counsel and his family about "what [he] wanted to do." He added that, having spoken to his lawyer and his family, he had adequate time to think about the plea offer and wanted to accept it "rather than stand trial on a murder charge[.]"

Counsel for defendant represented to the court that he explained to defendant that "by waiving the Grand Jury he would not be indicted for murder" and that "we're proceeding on a less serious charge." Defendant acknowledged his understanding and voluntary agreement to waive indictment. The following colloquy then took place, which we set forth at some length:

THE COURT: [Defense counsel], would you assist in the factual [statement]? I would appreciate that.
[DEFENSE COUNSEL]: Certainly, Judge. Edwin, on November 24th you were in the City of Camden, correct?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: You came into contact at the time with Edwin Torres. Do you recall that?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And, Edwin, actually there was another young man with him, is that correct?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And at the time, you and Edwin Torres, would it be fair to say, got into an argument?
THE DEFENDANT: Yes.
[DEFENSE COUNEL]: At some point during that argument did you produce a handgun and fire that at Edwin? Did you shoot the handgun?
THE DEFENDANT: First he smacked me. When I was walking off, I looked behind me. He said I know you and I turn your back behind me. [sic] I looked behind me. H[e] and his cousin w[ere] pulling out their firearms. I went for mine[]. It was an automatic, so then the gun just went off. When it went off it dropped. When it dropped I picked it up and I just ran.
I ain't mean to kill him, your Honor. I just wanted to have him back up.
THE COURT: You discharged a firearm in his direction, right?
THE DEFENDANT: I shot, like, away from, but it hit and the gun took my hand.
THE COURT: Well, you didn't shoot it in the air and it went in the air and accidentally came down and hit him in the top of the head, right?
THE DEFENDANT: No.
THE COURT: You pointed it in his direction, right?
THE DEFENDANT: Yes.
THE COURT: You discharged it multiple times, right?
THE DEFENDANT: Yes.
THE COURT: You pulled it six times. It wasn't an automatic, right?
THE DEFENDANT: Yes – No. It was an automatic.
THE COURT: You pulled the trigger once and six bullets came out?
THE DEFENDANT: Yes.
THE COURT: That's right?
THE DEFENDANT: Yes.
THE COURT: You knew the pistol was an automatic?
THE DEFENDANT: No.
THE COURT: But you still shot in his direction six ...

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