STATE OF NEW JERSEY VS. GIUSEPPE PAPARATTO

Defendant Giuseppe Paparatto appeals from the June 27, 2014

order denying his motion to vacate a guilty plea he entered in

2006. Defendant claims he presented a colorable claim of

innocence, the motion judge erred in failing to consider his

reasons for withdrawing his plea, and the State will not be

prejudiced if it had to try the ten-year-old charges. Finding

no merit to these arguments, we affirm.

On December 29, 2005, four Roseland Police Department (RPD)

officers responded to a Becker Farm Road location to investigate

a report of a man who was becoming violent after being accused

of stealing a wallet. The officers arrived at the scene within

two minutes of the call, and several people directed Officer

John Allison to the back of a parking lot. As Allison drove to

the rear of the lot, a black SUV came speeding in his direction.

The driver, later identified as defendant, jumped a curb to

avoid hitting the officer. Allison radioed a description of the

SUV and the license plate number to dispatch and pursued the

vehicle.

Defendant fled at a high rate of speed without regard to

oncoming cars or pedestrians. When he was seemingly blocked by

other cars, he jumped another curb and traversed a mud and grass

area. Allison could not follow defendant, so he radioed the

SUV's location and fellow RPD Officer Luongo radioed back that

the vehicle jumped another curb and attempted to climb a grassy

hill to avoid him. When the SUV got stuck, Luongo and two other

officers approached with guns drawn. Defendant continued his

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futile attempt to escape, swerving back and forth over the wet

grass.

After a struggle, the officers were able to arrest

defendant and a passenger, C.E. C.E. produced a crack pipe that

she had hidden in her bra, and a bag of cocaine was found under

the passenger seat of the SUV. Police also found several cell

phones, credit cards, and various forms of identification, some

of which had been reported stolen.

After defendant was handcuffed and placed in the back of a

police car, he was read Miranda1 rights and stated that he

understood them. Once back at police headquarters, defendant

was asked who the crack pipe and the cocaine belonged to. He

responded, "[w]ithout hesitation," that the drugs and

paraphernalia belonged to him and C.E. "was not involved."

Defendant also stated that this was not the first time he had

come to Roseland to steal wallets and he had done the same thing

in the past. He indicated that two of the IDs found in the SUV

were stolen on a prior occasion. Defendant admitted that he had

used three bags of cocaine that morning and would soon be sick

from the withdrawal.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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On May 11, 2006, defendant pled guilty pursuant to a plea

agreement to third-degree eluding law enforcement, N.J.S.A.

2C:29-2(b); third-degree burglary, N.J.S.A. 2C:18-2; and third

degree possession of cocaine, N.J.S.A. 2C:35-10. On June 23,

2006, defendant was sentenced. Even though defendant's plea

agreement called for a three-year sentence, the judge imposed a

term of probation.

Defendant was also convicted of credit card fraud in April

2006 in Bergen County and in May 2006 in Somerset County. In

September 2007, defendant was notified that he violated

probation. Apparently, he violated probation in the Bergen and

Somerset cases as well.2 On October 12, 2007, defendant was re

sentenced on this matter to 270 days in the Essex County Jail,

with a recommendation that his term run concurrently to VOP

sentences in Bergen and Somerset Counties.

Defendant immigrated to the United States from Italy in

1969 when he was seven years old, but never attained

citizenship. He was arrested on an immigration detainer in July

2002, but received a waiver of removal from the Immigration

Court in 2003. On April 2, 2010, Immigration and Customs

Enforcement issued a second immigration detainer. On August 23,

2012, defendant was found to be in violation of the Immigration

2 Those records were not provided to us.

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and Nationality Act, 8 U.S.C.A. §§ 1101-1537, and the

Immigration Court ordered him removed from the United States and

permanently barred from reentering the country. Defendant was

deported to Italy in September 2012.

Defendant did not appeal his conviction or file a petition

for post-conviction relief. Defendant's brief indicates that he

filed a motion to withdraw his plea on January 16, 2014.3

Defendant submitted a certification dated December 2013,

maintaining he did not understand that his guilty plea would

result in his deportation, and had he known, he would not have

pled guilty.

On April 3, 2014, Judge Verna G. Leath heard oral argument

on defendant's motion. According to the transcript, defendant's

counsel argued that if defendant had known that a conviction

would result in his deportation, he would not have pled guilty.

Counsel also claimed that defendant has made a colorable claim

of innocence, and only a small amount of cocaine was seized.

When the judge noted that defendant had admitted to

possessing the drugs, defense counsel explained that defendant

was high on cocaine and going through withdrawal at the time of

the admission. Noting that the crack pipe was hidden in C.E.'s

bra and the drugs were found under her seat, counsel

3 The motion was not included in the record on appeal.

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hypothesized that the drugs belonged to C.E. and defendant was

stealing wallets so he could buy them from her. Counsel then

predicted that a skilled attorney would win a case with these

facts "nine out of ten times."

On June 27, 2014, Judge Leath read a decision into the

record weighing the four Slater4 factors. She first found

"defendant has not presented . . . potentially plausible facts

consistent with a colorable claim of innocence." She then

examined defendant's reasons for withdrawing his plea and found

nothing in the record to indicate defendant was misinformed as

to the consequences of his plea. The judge noted that defendant

had been the subject of a deportation proceeding in 2002 and

"had reason to know that deportation, based on a conviction, was

a distinct possibility."

As to the third factor, the judge noted that defendant pled

guilty pursuant to a plea agreement and, therefore, had a

heavier burden in seeking to withdraw his plea. Finally, the

judge noted that under the fourth Slater factor, the State would

suffer prejudice if it had to try the case, as the evidence had

probably been destroyed. Based on her finding that defendant

had failed to establish the four Slater factors, the judge

denied defendant's motion to withdraw his guilty plea.

4 State v. Slater, 198 N.J. 145 (2009).

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This appeal followed, wherein defendant raises three

points:

I.

MR. PAPARATTO PRESENTED A COLORABLE CLAIM OF INNOCENCE BY SPECIFICALLY POINTING TO PLAUSIBLE FACTS IN THE RECORD THAT PROVIDE A DEFENSE TO THE CONSTRUCTIVE POSSESSION OF CDS CHARGE.

II.

MR. PAPARATTO PRESENTED FORCEFUL, FAIR AND JUST REASONS FOR WITHDRAWING HIS PLEA AND THE TRIAL COURT'S RULING TO THE CONTRARY WAS A CLEAR ERROR OF JUDGMENT.

III.

ALLOWING MR. PAPARATTO TO WITHDRAW HIS PLEA WOULD NOT RESULT IN UNFAIR PREJUDICE TO THE STATE OR AN UNFAIR ADVANTAGE TO MR. PAPARATTO, AND THE TRIAL COURT FAILED TO EVALUATE THIS FACTOR WHEN DECIDING MR. PAPARATTO'S MOTION.

We are not persuaded by any of these arguments, and affirm

substantially for the reasons set forth in Judge Leath's cogent

and comprehensive decision. We add only the following brief

comments.

Absent "an abuse of discretion which renders the lower

court's decision clearly erroneous," we must affirm a trial

court's decision on a motion to withdraw a guilty plea. State v.

Simon, 161 N.J. 416, 444 (1999). In Slater, supra, the Court

directed trial judges to

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consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.

[198 N.J. at 157-58.]

None of these factors is mandatory, and "if one is missing, that

does not automatically disqualify or dictate relief." Id. at

162.

Defendant argues that he has presented a colorable claim of

innocence and provided "forceful, fair and just reasons for the

withdrawal of his plea," in satisfaction of factors one and two.

Although defendant concedes that his plea was the result of a

plea bargain, he urges the court to consider the reasoning in

State v. Munroe, which gave little weight to the third factor

because "the vast majority of criminal cases are resolved

through plea bargains." 210 N.J. 429, 443 (2012) (quoting

Slater, supra, 198 N.J. at 161).

Finally, defendant contends that the trial court failed to

consider the fourth factor, and that a failure to weigh the

possible unfair prejudice to the State with the possible unfair

advantage to defendant constituted "a clear error of judgment."

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As to the first Slater factor, a "colorable claim of

innocence is one that rests on 'particular, plausible facts'

that, if proven in court, would lead a reasonable factfinder to

determine the claim is meritorious." Munroe, supra, 210 N.J. at

442 (quoting Slater, supra, 198 N.J. at 159). "A core concern

underlying motions to withdraw guilty pleas is to correct the

injustice of depriving innocent people of their liberty."

Slater, supra, 198 N.J. at 158. Thus, a defendant must present

"specific, credible facts and, where possible, point to facts in

the record that buttress [his] claim [of innocence]." Ibid.

The Slater Court made clear that defendant's burden is to

"present some plausible basis for his request, and his good

faith in asserting a defense on the merits." Id. at 156 (quoting

State v. Smullen, 118 N.J. 408, 416 (1990)). Nowhere in

defendant's certification does he deny possessing the drugs, or

explain why he admitted the drugs were his and told police that

C.E. was not involved.

We are satisfied that defendant has failed to assert a

colorable claim of innocence; that his motivation to withdraw

his plea is not to address the inequity of an unjust conviction,

but to allow him an opportunity to petition for reentry into

this country; that he pled guilty pursuant to a plea agreement;

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and that withdrawal would result in unfair prejudice to the

State.

Defendant's remaining arguments lack sufficient merit to

warrant further discussion in our opinion. R. 2:11-3(e)(2).

Affirmed.