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State v. Deluca

Superior Court of New Jersey, Appellate Division

December 23, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
MICHAEL DELUCA, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2013

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1143.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

Before Judges Alvarez and Carroll.

PER CURIAM

Defendant Michael Deluca appeals from an October 7, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was arrested and subsequently indicted in connection with a July 14, 2007 forcible sexual assault upon a teenage victim. On August 4, 2008, pursuant to a plea agreement, defendant pled guilty to one count of the indictment, charging him with second-degree sexual assault, N.J.S.A. 2C:14-2c(1). In exchange for defendant's guilty plea, the State agreed to dismiss the remaining twenty counts of the indictment, including one count of first-degree kidnapping, N.J.S.A. 2C:13-1b(1), and four counts of first-degree aggravated sexual assault, N.J.S.A. 14-2a(3). The State also agreed to recommend a sentence of seven years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, Megan's Law, N.J.S.A. 2C:7-1 to -23, and parole supervision for life (PSL), N.J.S.A. 2C:43-6.4.

Before the trial judge, defendant acknowledged his understanding of the plea agreement, including all the consequences of Megan's Law and PSL. As to the latter, defendant twice indicated to the judge that he understood that he would be under PSL. Defendant executed several plea forms, including the supplemental plea forms explaining the Megan's Law and PSL consequences of the plea. In response to the judge's questioning, defendant testified that he read the plea forms, reviewed them with his attorney before signing them, understood them, and had no questions about them. Importantly, defendant answered "YES" to questions on the supplemental plea form that asked whether he understood that he would be sentenced to PSL, and would thereby be "subject to provisions and conditions of parole, including . . . restrictions on where you can live, work, travel or persons you can contact[.]" Under questioning by his attorney, defendant admitted that, through coercion, he inserted his finger into the vagina of the victim, without her consent.

Prior to his sentencing on October 17, 2008, defendant sought to withdraw his guilty plea, stating that he "wasn't in full understanding of the consequences of the plea." Specifically, defendant contended that he "didn't know there was a life supervision. I didn't know that there was travel bans that I would be under, lifetime parole." The judge rejected defendant's argument, citing the plea forms that defendant had signed and his colloquy with the court when the plea was entered. Defendant was then sentenced consistent with the plea agreement to a seven-year prison term, subject to a mandatory period of parole ineligibility under NERA, Megan's Law, and PSL.

Defendant appealed and the matter was placed on a sentencing calendar pursuant to Rule 2:9-11. We affirmed the judgment of conviction. State v. Deluca, No. A-2926-08 (App. Div. February 9, 2010).

Defendant filed a pro se petition for PCR in April 2010, challenging the aggravating and mitigating factors found the sentencing court, and further asserting that there was "no physical evidence to back conviction, although plea was taken." Counsel was thereafter appointed and filed a supplemental brief, essentially arguing that defendant's due process rights were violated when his recorded statement was irretrievably lost by the State, and that trial counsel was ineffective in having failed to move to suppress defendant's statement.

Following oral argument, the court denied defendant's PCR petition.[1] The court noted that when defendant pled guilty, he twice testified that he understood that he would be under PSL, and would be subject to by the requirements of Megan's Law. The judge further cited ...


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