State v. Vasco

194 A.3d 993, 456 N.J. Super. 382
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 20, 2017
DocketDOCKET NO. A-4435-15T2
StatusPublished
Cited by2 cases

This text of 194 A.3d 993 (State v. Vasco) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Vasco, 194 A.3d 993, 456 N.J. Super. 382 (N.J. Ct. App. 2017).

Opinion

PER CURIAM

*385Defendant Rainlin Vasco appeals his judgment of conviction for fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). We affirm.

I.

The following facts are taken from the record. On August 6, 2015, Elizabeth police responded to a report of domestic violence at an apartment occupied by defendant and his mother, R.P. Defendant and N.C. began to date in January 2015. N.C. became pregnant with defendant's child and moved in with defendant and his mother a few weeks before this incident. When N.C. told defendant she wanted to go back to her mother's house, he became angry and grabbed her. N.C. pushed defendant and he "got madder." Defendant took out a knife, started walking toward N.C. and told her he was going to cut her neck "wide open." N.C. yelled for R.P. to come and R.P. took the knife from defendant. Defendant then jumped on N.C. and began punching her in the leg until R.P. pulled him off. R.P. dialed 9-1-1 and defendant ran out of the house before police arrived.

Defendant was initially charged with simple assault, N.J.S.A. 2C:12-1(a), third-degree terroristic threats, N.J.S.A. 2C:12-3(a), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).

On September 16, 2015, pursuant to a plea agreement, defendant waived his rights to indictment and trial by jury and agreed to plead guilty to an accusation charging him with fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).

During his guilty plea allocution, defendant provided the following responses to questions by his counsel:

Q: Mr. Vasco, on August 6, 2015, were you in the City of Elizabeth?
A: Yes, I was.
Q: And on that date, did you possess a knife?
A: Yes, I did.
*386Q: And was it your understanding that it was against the law to possess that knife?
A: Yes, it was.

When defendant's counsel indicated he had no further questions, the assistant prosecutor asked to confer with him. Counsel then indicated he had a follow-up question:

Q: And did you - and you didn't have a lawful purpose for that knife, right?
A: I had a lawful - I had a lawful purpose, like, I didn't want to do anything unlawful. I just possessed it.

The judge then indicated he could not accept the plea because defendant had not presented an adequate factual basis and *996suggested the parties return after the lunch break.

When they returned, defendant provided the following responses to his counsel's questions:

Q: Mr. Vasco, on August 6, 2015, you were in the City of Elizabeth, correct?
A: Yes, I was.
Q: And you were in possession of a knife, right?
A: Yes.
Q: And you didn't have a lawful purpose for that knife, right?
A: I did not.
Q: Okay.

After confirming that defendant understood that he was still under oath, the judge indicated he was satisfied defendant provided an adequate factual basis for his guilty plea and scheduled sentencing for October 30, 2015.

On that date, defendant requested an adjournment to apply for pretrial intervention (PTI). Defendant's PTI application was subsequently denied and he appealed.

On February 11, 2016, while defendant's PTI appeal was pending, defendant, represented by new counsel, filed a motion to withdraw his guilty plea, alleging he received ineffective assistance from his plea counsel and had not presented an adequate factual basis for his guilty plea. Later that month, defendant withdrew his appeal of the denial of his PTI application.

*387On May 16, 2016, a different judge heard argument on defendant's motion. Defendant submitted a certification in which he claimed that during his argument with N.C., he noticed a knife nearby and was afraid N.C. would use the knife against him. He picked up the knife to move it away from N.C. and put it in a "safer location" away from N.C. Defendant denied using or intending to use the knife as a weapon.

Defendant also provided a statement N.C. gave to his investigator in which she recanted her prior allegation:

Rainlin Vasco did not pull out the knife on the day of the incident. At the heat of the moment we were both upset and arguing verbally, but it never got any further than that. Both me and his mother, [R.P.] wanted him to get help at a Trinitas mental hospital, but were informed that the police needed to be called before anything. Rainlin's intent was and is never to hurt me in any way and I do not see him as a threat.

R.P. also provided a statement, but she confirmed that defendant possessed a knife:

I was in my house in my living room and I heard them arguing and I know he had a knife and I got very nervous and I know that my son, Rainlin, is a very nervous person. I understood that I had to call hospital crisis and when I did, the hospital told me that I had to call the police for them to come to the house. I was just asking them to talk to a psychologist to speak to my son, Rainlin, and I never thought that this call would go any further than this. I ask that you excuse me for any misunderstanding.

The judge provided a thorough analysis of the four factors set forth in State v. Slater, 198 N.J. 145, 966 A. 2d 461 (2009), which addressed the circumstances under which a guilty plea may be withdrawn.

The judge found there was an adequate factual basis for defendant's plea, noting that during defendant's allocution, he affirmed under oath that he did not have a lawful purpose when he possessed the knife on August 6, 2015. The judge also observed that defendant was pleading to unlawful possession of a weapon and not *997possession of a weapon for an unlawful purpose. The judge rejected defendant's claim that he received ineffective assistance from plea counsel, noting that defendant's plea agreement was "generous and beneficial" to him as he pled guilty to a *388reduced fourth-degree charge with a recommendation of a non-custodial sentence of probation.

The judge found defendant had not made a colorable claim of innocence, noting that defendant's claim was contradicted by N.C.'s sworn statement to police at the time of the incident, and by the 9-1-1 call made by R.P. The judge listened to a recording of the 9-1-1 call1 and read the statement R.P.

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Bluebook (online)
194 A.3d 993, 456 N.J. Super. 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vasco-njsuperctappdiv-2017.