STATE OF NEW JERSEY VS. MARCQUESE W. PAISLEY (15-06-0720, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 26, 2017
• Docket: A-4154-15T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4154-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCQUESE W. PAISLEY,

Defendant-Appellant. —————————————————————————————

Submitted June 8, 2017 – Decided July 26, 2017

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 15-06-0720.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the briefs).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM Defendant Marcquese Paisley appeals from his judgment of

conviction, based on his guilty plea to second-degree kidnapping,

N.J.S.A. 2C:13-1(b), and third-degree possession of a weapon for

unlawful purposes, N.J.S.A. 2C:39-4(d). Defendant's appeal

focuses on the denial of his motion to withdraw his guilty plea;

he asserts the plea record failed to establish a factual basis

supporting his kidnapping conviction. Defendant also challenges

the length of his sentence. Having reviewed these arguments in

light of the record and the applicable law, we affirm.

I.

Defendant's convictions arose from a home break-in he

committed in Edison on the night of November 30, 2014; at

approximately 11:00 p.m., defendant forced his way into the home

of victims T.S. and H.S., her mother. Brandishing a large knife,

defendant ordered T.S. and H.S onto the living room couch, where

a third victim, J.C., was already sitting, and demanded all of

their cell phones.

Defendant then ordered the three victims into the bathroom,

which he also entered, shutting and locking the door behind him.

He ordered T.S. and H.S. into the bathtub and J.C. to sit on the

toilet. Defendant then threatened to cut J.C.'s throat and

threatened to stab T.S. in the liver. He next ordered J.C. into

the bathtub and continued to threaten J.C. and T.S. After bringing

2 A-4154-15T2 the victims out of the bathroom to different rooms and threatening

them, defendant fled the residence.

The three victims gave statements to police identifying

defendant as the perpetrator. Police subsequently responded to

defendant's workplace and requested he come to the station for an

interview. During the interview, defendant confessed to

committing the crime and said he had been drinking prior to the

act. Police then arrested defendant.

On June 11, 2015, a Middlesex County grand jury returned an

indictment, charging defendant with the following offenses:

second-degree burglary, N.J.S.A. 2C:18-2 (count one); first-degree

kidnapping, N.J.S.A. 2C:13-1(b) (count two); second-degree

attempted theft by extortion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-

5 (count three); second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1) (count four); third-degree aggravated assault, N.J.S.A.

2C:12-1(b)(2) (count five); third-degree terroristic threats,

N.J.S.A. 2C:12-3(a) (counts six, seven, and eight); third-degree

terroristic threats, N.J.S.A. 2C:12-3(b) (count nine); third-

degree possession of a weapon for unlawful purposes, N.J.S.A.

2C:39-4(d) (count ten); and fourth-degree unlawful possession of

a weapon, N.J.S.A. 2C:39-5(d) (count eleven).

Pursuant to a plea agreement, on August 24, 2015, defendant

pled guilty to count two, amended to second-degree kidnapping, and

3 A-4154-15T2 count ten. The State agreed to recommend a ten-year term of

imprisonment on count two, subject to the period of parole

ineligibility imposed by the No Early Release Act, N.J.S.A. 2C:43-

7.2, and a concurrent five-year sentence on count ten, with the

sentences to run concurrent to pending violation of probation

charges against defendant.

At the plea hearing, the following colloquy occurred with

defendant to establish the factual basis for second-degree

kidnapping:

Q. So, Marcquese, it's real simple, Marcquese Paisley, it says in Count 2 that on November 30th, 2014, this happened in Edison, New Jersey. Is that true so far?

A. Correct.

Q. Now, did there come a point in time where you entered the residence of either [H.S.] and/or [T.S.] and/or [J.C.]?

A. Yes.

Q. Now, . . . what happened? You tell me in your own words. Let me do it this way. You tell me what did you do wrong? Is it an apartment house or is it a . . . house?

A. An apartment.

Q. In an apartment. And what did you do wrong, Marcquese Paisley[,] in that apartment?

A. I went into their house and pushed the three of them into the bathroom with a knife.

Q. With a knife. And why did you do that?

4 A-4154-15T2 A. Because I was intoxicated and because [H.S.] stole money from a friend of mine.

Q. Okay. So it wasn't even your beef?

A. No.

Q. But you wanted to get your friend's money back, so . . . you thought it would be prudent to go into that residence with a knife to get that money back, yes?

A. Yes, Your Honor.

Q. But then . . . in order to help accomplish your ends, you confined these people. So kidnapping is taking a person from one location to another and you stop their liberty. You – by confining them, . . . you prohibited them from . . . gaining any kind of freedom. So you –

. . . .

Q. So, now the knife that you had, it wasn't for a lawful purpose, it was for the purpose – and I'm going over the other count at the same time, Count 10 – the purpose that you had that knife was for an illegal purpose, wasn't it?

Q. Because you were displaying that knife in such a fashion that it assisted you in committing the underlying crime of kidnapping by forcing them . . . into that bathroom, right?

Q. So that knife, you did unlawfully possess that weapon with the purpose to use it unlawfully against the persons of [H.S.], [T.S.,] and/or [J.C.]; is that right?

5 A-4154-15T2 A. Yes, Your Honor.

The prosecutor also elicited the following admissions from

defendant on cross-examination:

Q. Sir, when you brought them into that bathroom, you held them there for a while, didn't you?

A. Approximately 20 minutes.

Q. For about 20 minutes. And during that time you had a knife and you made threatening comments so as to terrorize and scare them, you made comments along the lines of cutting out, I believe it was, [T.S.]'s liver. And you said that in front of [H.S.] to scare her so that she would pay the money that was owed, you said you would do things of that nature, correct?

Q. And the purpose in doing that was to terrorize them while they were in there, correct?

A. Right.

Q. And, sir, with regard to the knife, again, you possessed that knife . . . for the unlawful purpose of again terrorizing these three individuals when you threatened them to go into the bathroom, used it to get them into the bathroom, and then went inside the bathroom and made threatening comments regarding that knife and how you would use it?

Q. And you understand that's an unlawful purpose to use the knife, correct?

6 A-4154-15T2 A. Correct.

Prior to sentencing, defendant filed a motion to withdraw his

guilty plea, arguing the factual basis was insufficient to support

his conviction for second-degree kidnapping, as defined in

N.J.S.A. 2C:13-1(b). On April 18, 2016, following oral argument,

the judge denied defendant's motion and proceeded to sentencing.

After finding aggravating factors N.J.S.A. 2C:44-1(a)(3) and (9),

and no mitigating factors, the judge sentenced defendant to nine

years of imprisonment on count two, concurrent to five years of

imprisonment on count ten.

This appeal followed. Defendant now presents the following

points of argument:1

POINT I

THERE IS NO FACTUAL BASIS TO SUPPORT DEFENDANT'S PLEA TO SECOND-DEGREE KIDNAPPING.

POINT II

THE JUDGE'S SENTENCING UTTERLY FAILED TO COMPLY WITH THE REQUIREMENTS OF STATE V. CASE, 220 N.J. 49 (2013), RESULTING IN A M[A]NIFESTLY EXCESSIVE SENTENCE THAT MUST BE REVERSED.

1 Defendant filed a reply brief, challenging some of the State's factual allegations. He also filed a pro se supplemental brief, essentially reiterating Point I of his counsel's initial brief. 7 A-4154-15T2 II.

We first address defendant's guilty plea. Before accepting

a defendant's guilty plea, the court must determine "by inquiry

of the defendant and others, in the court's discretion, that there

is a factual basis for the plea." R. 3:9-2. "[O]ur law requires

that each element of the offense be addressed in the plea

colloquy." State v. Campfield, 213 N.J. 218, 231 (2013). The

judge "must be 'satisfied from the lips of the defendant that he

committed the acts which constitute the crime.'" State ex rel.

T.M., 166 N.J. 319, 327 (2001) (quoting State v. Barboza, 115 N.J.

415, 422 (1989)); see also State v. Tate, 220 N.J. 393, 405-06

(2015). "The trial court's task is to ensure that the defendant

has articulated a factual basis for each element of the offense

to which he pleads guilty." Campfield, supra, 213 N.J. at 232.

"[I]t is essential to elicit from the defendant a comprehensive

factual basis, addressing each element of a given offense in

substantial detail, when a defendant is pleading guilty to that

offense." Id. at 236; see also State v. Perez, 220 N.J. 423, 432-

33 (2015).

A guilty plea that is not supported by a sufficient factual

basis will be set aside on appeal:

The remedy for an inadequate factual basis is an order vacating the guilty plea and restoring both parties to their positions prior to the trial court's acceptance of the 8 A-4154-15T2 plea. If an appellate court determines that "a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated, and defendant allowed to re-plead or to proceed to trial."

[Campfield, supra, 213 N.J. at 232 (quoting Barboza, supra, 115 N.J. at 420).]

"The standard of review of a trial court's denial of a motion to

vacate a guilty plea for lack of an adequate factual basis is de

novo." Tate, supra, 220 N.J. at 403-04.

Pursuant to N.J.S.A. 2C:13-1(b)(2), an individual is guilty

of kidnapping if, with the purpose to terrorize the victim, he

"unlawfully removes another from his place of residence or

business, or a substantial distance from the vicinity where he is

found, or if he unlawfully confines another for a substantial

period." Defendant argues the factual record created at the plea

hearing was insufficient to establish he moved the victims a

"substantial distance," nor was it sufficient to establish that

he confined the victims for a "substantial period." Ibid.

We reject defendant's contention. To sustain a kidnapping

conviction, the State must prove either "substantial distance" or

"substantial confinement." See State v. Jackson, 211 N.J. 394,

414 (2012). Regarding "substantial distance," our Supreme Court

has held that this element does not simply turn on a "linear

measurement" of distance: 9 A-4154-15T2 We considered the "substantial distance" element of N.J.S.A. 2C:13-1(b) in [State v. Masino, 94 N.J. 436, 445 (1983)]. There, the defendant, whose sexual advances to the victim had been rebuffed, dragged the victim from her car to a pond where he sexually assaulted and beat her. Id. at 438. We noted that the "substantial distance" requirement was intended to preclude abusive prosecution, in the form of "'kidnapping convictions based on trivial changes of location having no bearing on the evil at hand.'" Id. at 445 (quoting Model Penal Code § 212.1 Comment (Tent. Draft No. 11, 1960), at 16). We construed the requirement of N.J.S.A. 2C:13-1(b) to be distinct from a "linear measurement" of the distance traveled by the victim during his or her confinement. Ibid. Instead, we defined a "substantial distance" as one that "isolates the victim and exposes him or her to an increased risk of harm." Ibid. In Masino, although the "linear" distance between the location where the defendant had abducted the victim and the location where she was found was not long, we held that the evidence supported a jury finding that the defendant moved the victim a "substantial distance." Id. at 447. The Masino defendant isolated the victim and by removing her clothes, "imped[ed] her ability to follow him from the area and call attention to her plight." Ibid.

[Jackson, supra, 211 N.J. at 415.]

In State v. Purnell, 394 N.J. Super. 28, 53 (App. Div. 2007),

we held the "substantial distance" requirement was satisfied where

the defendant removed the victim up an additional flight of stairs

to sexually assault her, thereby exposing the victim to an

increased risk of harm. Similarly, in State v. Matarama, 306 N.J.

Super. 6, 22 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998),

10 A-4154-15T2 we upheld the defendant's conviction for kidnapping where he

dragged the victim twenty-three feet into an alley, making it more

difficult for other pedestrians to observe the assault. Analyzing

these cases and others, our Supreme Court concluded, "[T]he

'substantial distance' element requires analysis of the additional

risk imposed on the victim, over and above the risk imposed by a

separate crime, and the isolation experienced by the victim because

of the defendant's actions." Jackson, supra, 211 N.J. at 416.

Applying these standards, we find the factual record from

defendant's plea colloquy established that he isolated the victims

and exposed them to additional risk of harm, thereby satisfying

the "substantial distance" requirement of N.J.S.A. 2C:13-1(b).

Defendant acknowledged he entered the residence and "pushed the

three of them into the bathroom with a knife." He further admitted

he entered the bathroom and threatened to use his knife on the

victims. The clear implication from these facts is that defendant

isolated his victims in a smaller enclosed room where they could

not seek help or escape, thus increasing their risk of harm.

Alternatively, we find the factual record established

defendant confined the victims for a "substantial period."

N.J.S.A. 2C:13-1(b). Addressing this element, our Supreme Court

held that

one is confined for a substantial period if that confinement "is criminally significant in 11 A-4154-15T2 the sense of being more than merely incidental to the underlying crime," and that determination is made with reference not only to the duration of the confinement, but also to the "enhanced risk of harm resulting from the [confinement] and isolation of the victim [or others]. That enhanced risk must not be trivial."

[Jackson, supra, 211 N.J. at 416 (alterations in original) (quoting State v. La France, 117 N.J. 583, 594 (1990)).]

Here, defendant's actions were more than incidental to any

underlying offense; rather, kidnapping was the underlying offense.

As discussed, forcing the victims into the bathroom for a period

of twenty minutes enhanced their risk of harm. Therefore, because

we conclude defendant's plea colloquy established a factual basis

that he committed both elements of N.J.S.A. 2C:13-1(b), we discern

no basis to disturb the trial judge's decision, denying defendant's

motion to withdraw his guilty plea.

We next address defendant's challenges to his sentence.

Appellate courts are bound to review sentencing decisions for an

abuse of discretion. State v. Blackmon, 202 N.J. 283, 297 (2010).

We will affirm if the sentencing judge has identified and balanced

the aggravating and mitigating factors that are supported by

sufficient credible evidence in the record, State v. Cassady, 198

N.J. 165, 180-81 (2009), but we should remand if the judge fails

to find mitigating factors "that clearly were supported by the

record." State v. Bieniek, 200 N.J. 601, 608 (2010). Moreover, 12 A-4154-15T2 we will modify a sentence if it "shocks the judicial conscience."

State v. Roth, 95 N.J. 334, 364 (1984).

Defendant contends the record did not support finding

aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk of reoffending),

and (9) (need for deterrence). We disagree. The record shows

defendant has two prior criminal convictions, including one

conviction for theft of movable property, N.J.S.A. 2C:20-3(a). He

also violated probation, and while on "zero tolerance" probation,

committed the offenses at issue here. Defendant's criminal history

thus supports finding aggravating factors three and nine.

Defendant further argues the record supports finding

mitigating factors N.J.S.A. 2C:44-1(b)(4) (substantial grounds

excused or justified defendant's conduct), (8) (defendant's

conduct resulted from circumstances unlikely to reoccur), (9)

(character of defendant indicates he is unlikely to commit another

offense), and (10) (defendant is likely to respond to probationary

treatment). Defendant argues these mitigating factors apply

because he was intoxicated during the kidnapping, has

psychological problems, had an "abhorrent" upbringing, and

expressed remorse for his actions. Defendant also cites the

statements from his family and psychologist and the letters

submitted on his behalf, asserting his offense was out-of-

character. Last, he argues the judge should have found mitigating

13 A-4154-15T2 factor N.J.S.A. 2C:44-1(b)(12) (cooperation with law enforcement),

because he cooperated with police throughout the proceedings.

Trial courts are not required to consider intoxication as a

mitigating factor. See State v. Setzer, 268 N.J. Super. 553, 567

(App. Div. 1993), certif. denied, 135 N.J. 468 (1994).

Furthermore, although mental issues and a troubled family

background might support finding mitigating factors, defendant has

not shown a connection between these issues and the subject

offenses. See State v. Briggs, 349 N.J. Super. 496, 504 (App.

Div. 2002). His probation violations and criminal record also

weigh against finding the requested mitigating factors. Finally,

we have suggested that mitigating factor twelve only applies to

defendants who assist law enforcement by "identif[ing] other

perpetrators or assist[ing] in solving other crimes." State v.

Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196

N.J. 85 (2008).

Therefore, because these mitigating factors were not "amply

based in the record," State v. Case, 220 N.J. 49, 64 (2014)

(quoting State v. Dalziel, 182 N.J. 494, 504 (2005)), the judge

did not abuse his discretion by imposing the nine-year sentence.

Affirmed.

14 A-4154-15T2