State of New Jersey v. Anthony Barbato

• Court: New Jersey Superior Court Appellate Division
• Decided: October 16, 2024
• Docket: A-3654-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3654-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY BARBATO,

Defendant-Appellant. ________________________

Argued September 16, 2024 – Decided October 16, 2024

Before Judges Sumners and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 22-05.

Luke C. Kurzawa, argued the cause for appellant (Reisig Criminal Defense & DWI Law, LLC, attorneys; Michael H. Ross, of counsel; Luke C. Kurzawa, on the brief).

Cheryl L. Hammel, Assistant Prosecutor, argued the cause for respondent (Bradley D. Billhimer, Ocean County Prosecutor; Samuel Marzarella, Chief Appellate Attorney, of counsel; Cheryl L. Hammel, on the brief). PER CURIAM

On May 16, 2018, defendant appeared with counsel before the Toms River

Municipal Court facing charges of a second offense of driving while intoxicated

(DWI), N.J.S.A. 39:4-50, and related motor vehicle offenses. Defense counsel

advised the court that defendant would plead guilty to second offense DWI,

admitting defendant's blood alcohol concentration (BAC) was .17 and provided

the court with copies of the Alcotest worksheet and defendant's driving abstract.

The following plea colloquy occurred:

THE COURT: Sir, I understand you've agreed to plead guilty to the charge of driving while intoxicated?

[DEFENDANT]: Yes.

THE COURT: Anybody threatening you or forcing you to do so?

[DEFENDANT]: No, sir.

THE COURT: You understand, sir, that you would be giving up your rights to have a trial. And at the trial, you would have the right to call witnesses in your defense or confront those witnesses that may be presented against you?

THE COURT: You understand, sir, by pleading guilty, you're giving up your opportunity at that same trial to compel the State to meet their burden of proof beyond a reasonable doubt?

A-3654-22 2 [DEFENDANT]: Yes.

THE COURT: And, sir, you also understand by pleading guilty you are admitting to the Court that on the date and time the summonses were issued to you, that you had consumed alcohol, did operate a motor vehicle here in the jurisdiction of Toms River Township. And the consumption of that alcohol did affect your ability to properly operate your vehicle, and you were, in fact, under the influence of that alcohol?

[DEFENDANT]: Yes, sir.

THE COURT: And, sir, you understand as a second offense violator, minimum fines and costs would exceed $850; you’d lose your license for two years; you must do 48 hours in the Intoxicated Drivers Resource Center; 30 days of community service; placement of an ignition interlock device in your vehicle during the two-year revocation and one to three years after that. And you could go to a jail for up to 90 days. Understood?

[DEFENDANT]: Yes, Your Honor.

THE COURT: And all of that being said, do you still wish to plead guilty?

[(Emphasis added).]

A-3654-22 3 The municipal court, finding defendant placed a sufficient factual basis of

DWI1 on the record, accepted his guilty plea and sentenced him in accordance

with the sentencing guidelines. The other offenses were dismissed pursuant to

the parties' agreement.

Almost five years later, on March 23, 2022, defendant, represented by

different counsel, moved before the municipal court to vacate his 2018 DWI

guilty plea. The court rejected defendant's argument that he gave an insufficient

basis for DWI because he was not asked about his BAC reading and did not state

what or how much he drank. Defendant appealed to the Law Division.

Law Division Judge Pamela M. Snyder denied defendant's motion to

vacate his guilty plea. Applying a de novo standard of review as a reviewing

court presented with a motion to vacate a guilty plea for lack of an adequate

factual basis, State v. Tate, 220 N.J. 393, 403-04 (2015), the judge agreed with

the municipal court that defendant gave an adequate factual basis supporting his

guilty plea to DWI under N.J.S.A. 39:4-50. In her oral decision, the judge

explained: "[D]efendant explicitly acknowledged to the [municipal] [c]ourt that

1 DWI occurs when "[a] person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogen or habit-producing drug, or operates a motor vehicle with a [BAC] of 0.08 percent or more by weight of alcohol in the defendant's blood." N.J.S.A. 39:4-50. A-3654-22 4 he operated his motor vehicle while under the influence of alcohol and the

alcohol affected his ability to properly operate that vehicle." The judge reasoned

that "[e]ven without accepting or considering the stipulation of defense counsel

regarding defendant's BAC, the admissions of defendant are enough to satisfy

the requirement for an adequate factual basis of a guilty plea." The judge

determined that because defendant only contended he gave an inadequate factual

basis to support his guilty plea, rather than asserted his innocence, Tate provides

that it is unnecessary to consider the four-prong analysis under State v. Slater,

198 N.J. 145, 150 (2009), to withdraw a guilty plea.2 The judge also rejected

defendant's reliance on an unpublished decision, noting the opinion has no

precedent value under Rule 1:36-3 and, moreover, was factually distinguishable,

thus making it unpersuasive.

Before us, defendant argues in a single point:

THE WITHIN DEFENDANT'S MOTION TO VACATE GUILTY PLEA SHOULD HAVE BEEN GRANTED ON DE NOVO REVIEW PREDICATED UPON THE MUNICIPAL COURT'S FAILURE TO OBTAIN A SUFFICIENT FACTUAL BASIS FOR THE ENTRY OF DEFENDANT'S GUILTY PLEA ON

2 Under this analysis, the trial judge must consider and balance "(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." Slater, 198 N.J. at 150. A-3654-22 5 MAY 16, 2018 IN ACCORDANCE WITH [RULE] 7:6-2(A)(1).

Based upon our de novo review of a denial of a motion to vacate a plea

for lack of an adequate factual basis, Tate, 220 N.J. at 403-04 (citation omitted),

we affirm substantially for the same reasons expressed by Judge Snyder in her

well-reasoned oral decision. Defendant provided a factual basis for DWI by

admitting he was driving under the influence of alcohol, which affected his

driving. See R. 7:6-2(a)(1) ("[T]he court shall not, however, accept a guilty plea

without first addressing the defendant personally and determining by inquiry of

the defendant and, in the court’s discretion, of others, that the plea is made

voluntarily with understanding of the nature of the charge and the consequences

of the plea and that there is a factual basis for the plea."); State v. Gregory, 220

N.J. 413, 419 (2015) ("The factual basis for a guilty plea can be established by

a defendant's explicit admission of guilt or by a defendant's acknowledgment of

the underlying facts constituting essential elements of the [offense].") (citing

State v. Campfield, 213 N.J. 218, 231 (2013)). Defendant's arguments are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

Affirmed.

A-3654-22 6