NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2986-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VINCENT MAZZAGATTI,
Defendant-Appellant.
Argued August 27, 2019 – Decided September 6, 2019
Before Judges Gilson and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 18- 13.
Britt J. Simon argued the cause for appellant (Simon Law Group, attorneys; Britt J. Simon, on the brief).
Natacha Despinos-Peavey, Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; Natacha Despinos-Peavey, on the brief).
PER CURIAM Defendant Vincent Mazzagatti appeals from a February 26, 2018 Law
Division order denying his petitions for post-conviction relief (PCR) from two
convictions for driving while under the influence (DWI), N.J.S.A. 39:4-50,
entered after defendant pled guilty twenty-five and twenty-eight years prior to
the petitions. The order was issued following a de novo review of the municipal
court orders denying defendant's PCR petitions. We affirm substantially for the
reasons set forth by Judge Kevin M. Shanahan in his thorough written opinion,
filed on February 26, 2018.
I
On January 20, 1989, defendant, who at that time was twenty-one years
old, pled guilty to DWI in Bridgewater Township Municipal Court. On
December 11, 1992, defendant, who at the time was twenty-five years old, pled
guilty to another DWI offense in Bound Brook Municipal Court. On December
11, 2018, defendant entered a conditional plea to a third DWI in Bound Brook
Municipal Court. Because defendant's second DWI conviction occurred more
than ten years prior to his third, he was sentenced as a second offender pursuant
to the step-down provision of N.J.S.A. 39:4-50(a), and received a two-year
driver's license suspension, two years' installation of an ignition interlock
A-2986-17T2 2 device, thirty days of community service, a referral to the Intoxicated Driving
Resource Center, and financial penalties.
Defendant filed PCR petitions seeking to vacate his pleas in 1989 and
1992, in the Bridgewater Township and Bound Brook Municipal Courts.
Defendant's 2018 plea was conditioned on the outcome of his petitions. In
challenging his two DWIs, defendant attempted to obtain transcripts from the
municipal courts. Both courts responded that they were unable to provide the
transcripts due to a fifteen-year records retention policy.
In the absence of transcripts, defendant certifies that he was not
represented by counsel in connection with his guilty plea in 1989, that a factual
basis for the offense was not elicited by the court, that possible legal defenses
were not brought to his attention, and that he was not informed of subsequent or
collateral consequences of his guilty plea. In connection with his 1992 plea
hearing in Bound Brook, defendant certifies that he was represented by counsel,
but that he does not recall the name of his attorney. He again certifies that a
factual basis for the offense was not established, and that he was not informed
of any legal defenses or subsequent or collateral consequences of the plea by the
court or his attorney.
A-2986-17T2 3 Oral argument was heard in the municipal courts on October 31, 2017,
concerning defendant's petitions. On November 2, 2017, his Bound Brook
petition was denied, and on November 3, 2017, his Bridgewater petition was
denied. Defendant thereafter filed a municipal appeal in the Law Division. Oral
argument was heard on February 14, 2018, and in a February 26, 2018 order,
Judge Shanahan denied defendant's PCR petitions. The order was accompanied
by a fourteen-page written opinion. Defendant now appeals from the order
entered by the Law Division.
II
On this appeal, defendant presents five arguments for our consideration ,
which he articulates as follows:
Point I: The Law Division Improperly Applied the Time Bar In Finding That Defendant Failed to Establish Excusable Neglect and Should Have Found A Manifest Injustice Below; Unfair Records Retention Rules Fail to Recognize the Magnitude of DWI Convictions and Prevented Defendant from Presenting the Very Evidence That Would Have Established a Colorable Claim, A Very Realistic Prospect In Light of Recent Supreme Court Reports and Decisions.
Point II: Defendant Established the Factors to Vacate His Guilty Plea, The Law Division Erred by Failing to Apply the State v. Slater Factors.
Point III: The Law Division Should Have Vacated The Plea Because It Lacked a Proper Factual Basis.
A-2986-17T2 4 Point IV: The Law Division Should Have Vacated the Plea in Order to Correct a Manifest Injustice.
Point [V]: The Law Division Should Have Vacated the Plea [Because] Defendant Was Never Advised of his Right to Appeal.
We disagree with defendant's arguments substantially for the same
reasons explained by Judge Shanahan in his written opinion. Specifically,
defendant's petitions are time-barred, and he has not shown a manifest injustice
warranting the withdrawal of his pleas. Accordingly, we affirm the denial of
defendant's petitions for PCR.
On appeal from the Law Division's review of a municipal appeal, we
"consider only the action of the Law Division and not that of the municipal
court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State
v. Joas, 34 N.J. 179, 184 (1961)). "Our review of the factual record
is . . . limited to determining whether there is sufficient credible evidence in the
record to support the Law Division judge's findings." State v. Powers, 448 N.J.
Super. 69, 72 (App. Div. 2016) (first citing State v. Johnson, 42 N.J. 146, 161-
62 (1964); and then citing State v. Clarksburg Inn, 375 N.J. Super. 624, 639
(App. Div. 2005)). Our review of the Law Division's "purely legal
A-2986-17T2 5 conclusions . . . is plenary." State v. Goodman, 415 N.J. Super. 210, 225 (App.
Div. 2010) (citing State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010)).
Initially, we note that defendant is not challenging either of his 1989 or
1992 DWI convictions on the basis that he was not advised of or was unaware
of his right to counsel. Indeed, defendant was represented by legal counsel in
connection with his plea in 1992. Moreover, before the Law Division, defendant
did not seek to reduce an enhanced custodial sentence pursuant to Rule 7:10-
2(g). Accordingly, defendant is not seeking relief under State v. Laurick, 120
N.J. 1 (1990) or State v. Patel, ___ N.J. ___, (2019).
Defendant's petitions are time-barred because they were filed more than
five years from the date of his DWI convictions in 1989 and 1992. The relevant
rule reads, in part:
(1) A petition to correct an illegal sentence may be filed at any time.
Free access — add to your briefcase to read the full text and ask questions with AI
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-2986-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VINCENT MAZZAGATTI,
Defendant-Appellant.
Argued August 27, 2019 – Decided September 6, 2019
Before Judges Gilson and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 18- 13.
Britt J. Simon argued the cause for appellant (Simon Law Group, attorneys; Britt J. Simon, on the brief).
Natacha Despinos-Peavey, Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; Natacha Despinos-Peavey, on the brief).
PER CURIAM Defendant Vincent Mazzagatti appeals from a February 26, 2018 Law
Division order denying his petitions for post-conviction relief (PCR) from two
convictions for driving while under the influence (DWI), N.J.S.A. 39:4-50,
entered after defendant pled guilty twenty-five and twenty-eight years prior to
the petitions. The order was issued following a de novo review of the municipal
court orders denying defendant's PCR petitions. We affirm substantially for the
reasons set forth by Judge Kevin M. Shanahan in his thorough written opinion,
filed on February 26, 2018.
I
On January 20, 1989, defendant, who at that time was twenty-one years
old, pled guilty to DWI in Bridgewater Township Municipal Court. On
December 11, 1992, defendant, who at the time was twenty-five years old, pled
guilty to another DWI offense in Bound Brook Municipal Court. On December
11, 2018, defendant entered a conditional plea to a third DWI in Bound Brook
Municipal Court. Because defendant's second DWI conviction occurred more
than ten years prior to his third, he was sentenced as a second offender pursuant
to the step-down provision of N.J.S.A. 39:4-50(a), and received a two-year
driver's license suspension, two years' installation of an ignition interlock
A-2986-17T2 2 device, thirty days of community service, a referral to the Intoxicated Driving
Resource Center, and financial penalties.
Defendant filed PCR petitions seeking to vacate his pleas in 1989 and
1992, in the Bridgewater Township and Bound Brook Municipal Courts.
Defendant's 2018 plea was conditioned on the outcome of his petitions. In
challenging his two DWIs, defendant attempted to obtain transcripts from the
municipal courts. Both courts responded that they were unable to provide the
transcripts due to a fifteen-year records retention policy.
In the absence of transcripts, defendant certifies that he was not
represented by counsel in connection with his guilty plea in 1989, that a factual
basis for the offense was not elicited by the court, that possible legal defenses
were not brought to his attention, and that he was not informed of subsequent or
collateral consequences of his guilty plea. In connection with his 1992 plea
hearing in Bound Brook, defendant certifies that he was represented by counsel,
but that he does not recall the name of his attorney. He again certifies that a
factual basis for the offense was not established, and that he was not informed
of any legal defenses or subsequent or collateral consequences of the plea by the
court or his attorney.
A-2986-17T2 3 Oral argument was heard in the municipal courts on October 31, 2017,
concerning defendant's petitions. On November 2, 2017, his Bound Brook
petition was denied, and on November 3, 2017, his Bridgewater petition was
denied. Defendant thereafter filed a municipal appeal in the Law Division. Oral
argument was heard on February 14, 2018, and in a February 26, 2018 order,
Judge Shanahan denied defendant's PCR petitions. The order was accompanied
by a fourteen-page written opinion. Defendant now appeals from the order
entered by the Law Division.
II
On this appeal, defendant presents five arguments for our consideration ,
which he articulates as follows:
Point I: The Law Division Improperly Applied the Time Bar In Finding That Defendant Failed to Establish Excusable Neglect and Should Have Found A Manifest Injustice Below; Unfair Records Retention Rules Fail to Recognize the Magnitude of DWI Convictions and Prevented Defendant from Presenting the Very Evidence That Would Have Established a Colorable Claim, A Very Realistic Prospect In Light of Recent Supreme Court Reports and Decisions.
Point II: Defendant Established the Factors to Vacate His Guilty Plea, The Law Division Erred by Failing to Apply the State v. Slater Factors.
Point III: The Law Division Should Have Vacated The Plea Because It Lacked a Proper Factual Basis.
A-2986-17T2 4 Point IV: The Law Division Should Have Vacated the Plea in Order to Correct a Manifest Injustice.
Point [V]: The Law Division Should Have Vacated the Plea [Because] Defendant Was Never Advised of his Right to Appeal.
We disagree with defendant's arguments substantially for the same
reasons explained by Judge Shanahan in his written opinion. Specifically,
defendant's petitions are time-barred, and he has not shown a manifest injustice
warranting the withdrawal of his pleas. Accordingly, we affirm the denial of
defendant's petitions for PCR.
On appeal from the Law Division's review of a municipal appeal, we
"consider only the action of the Law Division and not that of the municipal
court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State
v. Joas, 34 N.J. 179, 184 (1961)). "Our review of the factual record
is . . . limited to determining whether there is sufficient credible evidence in the
record to support the Law Division judge's findings." State v. Powers, 448 N.J.
Super. 69, 72 (App. Div. 2016) (first citing State v. Johnson, 42 N.J. 146, 161-
62 (1964); and then citing State v. Clarksburg Inn, 375 N.J. Super. 624, 639
(App. Div. 2005)). Our review of the Law Division's "purely legal
A-2986-17T2 5 conclusions . . . is plenary." State v. Goodman, 415 N.J. Super. 210, 225 (App.
Div. 2010) (citing State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010)).
Initially, we note that defendant is not challenging either of his 1989 or
1992 DWI convictions on the basis that he was not advised of or was unaware
of his right to counsel. Indeed, defendant was represented by legal counsel in
connection with his plea in 1992. Moreover, before the Law Division, defendant
did not seek to reduce an enhanced custodial sentence pursuant to Rule 7:10-
2(g). Accordingly, defendant is not seeking relief under State v. Laurick, 120
N.J. 1 (1990) or State v. Patel, ___ N.J. ___, (2019).
Defendant's petitions are time-barred because they were filed more than
five years from the date of his DWI convictions in 1989 and 1992. The relevant
rule reads, in part:
(1) A petition to correct an illegal sentence may be filed at any time.
(2) A petition based on any other grounds shall not be accepted for filing more than five years after entry of the judgment of conviction or imposition of the sentence sought to be attacked, unless it alleges facts showing that the delay in filing was due to defendant's excusable neglect.
[R. 7:10-2(b).]
A-2986-17T2 6 Judge Shanahan found that defendant failed to demonstrate "excusable
neglect" because defendant's arguments were based on his ignorance of the law,
namely, the collateral consequences of a DWI conviction. The Judge also held
that defendant's assertions of injustice based largely on the municipal courts'
records retention policy were too vague to warrant relief under Rule 1:1-2.
On appeal, defendant argues that the Law Division erred because
adherence to Rule 7:10-2(b) in this case would "result in an injustice." R. 1:1-
2. Under Rule 1:1-2, a petitioner must allege specific facts, "which, if believed,
would provide the court with an adequate basis on which to rest its decision" to
provide relief. State v. Mitchell, 126 N.J. 565, 579 (1992). In the context of a
PCR petition, the time-bar should be relaxed "only under exceptional
circumstances." Id. at 580.
Defendant argues that Bound Brook and Bridgewater Township Municipal
Courts destroyed the plea transcripts in accordance with their fifteen -year
records retention policy, which deprived him of his ability to present evidence
justifying post-conviction relief. Defendant alleges the transcripts would have
shown that he was unaware of the collateral consequences of his DWI
convictions, did not provide factual bases for his pleas, and was not made aware
of his right to appeal.
A-2986-17T2 7 Defendant requests that we hold the fifteen-year records retention policy
to be too short, based on the long-term implications that a DWI conviction can
carry for subsequent offenders. Defendant's argument is unpersuasive,
especially considering that the fifteen-year records retention policy substantially
exceeds the five-year time-bar for seeking post-conviction relief from a DWI
conviction. Furthermore, we are reluctant to address the argument on this
record, as defendant's substantive claims are based on bald allegations of
impropriety and an admittedly "limited memory" of the plea hearings.
Therefore, the municipal courts' compliance with its records retention schedule
did not result in an injustice to defendant sufficient to relax the Rule 7:10-2(b)
time-bar. See R. 1:1-2. The Law Division correctly denied defendant's petitions
on that basis.
Defendant also seeks to vacate his pleas. Under Rule 7:6-2(b), a guilty
plea in municipal court may be withdrawn after sentencing "to correct a manifest
injustice." In evaluating whether a manifest injustice has occurred, courts
consider: "(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." State v. Slater,
A-2986-17T2 8 198 N.J. 145, 157-58 (2009). "[E]fforts to withdraw a plea after sentencing must
be substantiated by strong, compelling reasons[,]" and "the longer the del ay in
raising a reason for withdrawal . . . the greater the level of scrutiny needed to
evaluate the claim." Id. at 160.
Judge Shanahan concluded that there was no manifest injustice in this
case, primarily because defendant did not claim innocence; the reasons for
defendant's withdrawal were not compelling; and withdrawal would result in
unfair prejudice to the State, as the pleas were entered nearly three decades ago.
We agree with those conclusions.
Defendant's remaining arguments are based on bald assertions without
evidential support in the record, and otherwise lack substantive merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2986-17T2 9