The New Jersey DWI Lawyer

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2582-08T4
STATE OF NEW JERSEY,

Plaintiff-Respondent,
v.
STEVEN MUSTARO,

Defendant-Appellant.

Argued November 10, 2009 – Decided
Before Judges Wefing, Grall and Messano.
On appeal from Superior Court of New
Jersey, Law Division, Camden County,
Municipal Appeal No. A-42-08.
Donald F. Browne argued the cause for
appellant (Merovitz, Cedar & Gruber,
attorneys; Mr. Browne, on the brief).
Jason Magid, Assistant Prosecutor, argued
the cause for respondent (Warren W. Faulk,
Camden County Prosecutor, attorney; Mr.
Magid, of counsel and on the brief).
Katherine D. Hartman argued the cause
for amicus curiae Association of Criminal
Defense Lawyers of New Jersey (Attorneys
Hartman, Chartered, attorneys; Ms. Hartman,
on the brief).
APPROVED FOR PUBLICATION
December 14, 2009
APPELLATE DIVISION
December 14, 2009
2 A-2582-08T4
The opinion of the court was delivered by
GRALL, J.A.D.
Defendant Steven Mustaro appeals and challenges the denial
of his post-sentence motion to vacate his plea of guilty to
driving while intoxicated, N.J.S.A. 39:4-50.1 Relying upon the
court’s decision in State v. Parsons, 341 N.J. Super. 448 (App.
Div. 2001), defendant claimed he would not have pled guilty if
the State had provided him with a videotape recorded by the
camera in the arresting officer’s patrol car. By the time
defendant filed his motion, which was about twenty months after
he was sentenced, the videotape had been destroyed. Because
defendant did not present evidence that would permit the trial
court to conclude that the videotape was exculpatory and
material to his decision to plead guilty or that withdrawal of
his guilty plea is necessary to correct a manifest injustice, we
affirm.
On November 29, 2006, defendant pled guilty to driving
while intoxicated on September 27, 2006. The plea was entered
pursuant to the State’s agreement to dismiss additional charges
for violations of N.J.S.A. 39:4-88, failure to maintain a lane;
N.J.S.A. 39:3-29, failure to exhibit the vehicle’s registration;
1 By leave granted, the Association of Criminal Defense
Lawyers of New Jersey filed a brief and argued as amicus curiae.
3 A-2582-08T4
N.J.S.A. 39:4-57, failure to comply with the officer’s
direction; N.J.S.A. 39:4-96, reckless driving; N.J.S.A. 39:4-98,
speeding; N.J.S.A. 39:4-89, following too closely; N.J.S.A.
2C:29-2a(1), resisting arrest; and a violation of a municipal
zoning ordinance. At the time of his plea, defendant
acknowledged that he was operating a vehicle, had consumed four
or five beers and had a blood alcohol content of .14 as measured
by an Alcotest device.
In conformity with the Supreme Court’s order of January 1,
2006, which governed disposition of violations of N.J.S.A. 39:4-
50 pending the Court’s determination of the reliability of the
Alcotest device, defendant reserved “the right to appeal in the
event [the Court] concluded that the Alcotest is not reliable.”
State v. Chun, 194 N.J. 54, 64-68, cert. denied, ___ U.S. ___,
129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). His plea was not
entered subject to any other condition or reserved right. R.
7:6-2(c).2
2 While a guilty plea generally constitutes a waiver of
the right to challenge a constitutional violation not expressly
reserved, other than the denial of a motion to suppress
evidence, R. 7:5-2(c)(2); R. 3:5-7(d); State v. Greeley, 178
N.J. 38, 50-51 (2003), several state courts and Federal Courts
of Appeal have held that a defendant may withdraw a guilty plea
if the defendant can establish that “his guilty plea was not
voluntary and intelligent because it was made in the absence of
withheld Brady material.” Sanchez v. United States, 50 F.3d
1448, 1453 (9th Cir. 1995) (and cases cited therein); Parsons,
(continued)
4 A-2582-08T4
This was defendant’s first conviction for violation of
N.J.S.A. 39:4-50, and he was sentenced immediately following his
plea. The judge dismissed the pending charges for other
violations in conformity with the plea bargain, suspended
defendant’s license for seven months, required him to spend
twelve hours in the Intoxicated Driver’s Resource Center, and
imposed a $306 fine, $33 in court costs, a $50 VCCB assessment,
a $200 DWI surcharge, and a $75 SNSF penalty. Consistent with
the Supreme Court’s order in Chun, the judge stayed execution of
that sentence. 194 N.J. at 67-68, 150.
On March 17, 2008, the Supreme Court concluded that the
Alcotest device is reliable and specified conditions for
admission of Alcotest results. Id. at 65, 145, 150-51. The
opinion includes an order defining the scope of the limited
challenge available to defendants who entered conditional pleas
pending its decision in Chun. Id. at 68, 150-51.
In July 2008, defendant, who had retained different
counsel, filed a motion in the municipal court seeking leave to
vacate the guilty plea he had entered on November 29, 2006.
(continued)
supra, 341 N.J. Super. at 456-57 (and cases cited therein); cf.
United States v. Ruiz, 536 U.S. 622, 629, 122 S. Ct. 2450, 2455,
153 L. Ed. 2d 586, 595 (2002) (concluding that due process does
not require “preguilty plea disclosure of impeachment
information” but suggesting that the analysis may be different
with respect to evidence of actual innocence).
5 A-2582-08T4
Defense counsel acknowledged that his client was not entitled to
relief under Chun. He argued, however, that defendant should be
permitted to withdraw his plea, because he had since learned
that the State failed to produce and subsequently destroyed a
videotape recorded on a camera installed in the patrol car. In
support of that application, defendant relied upon his prior
attorney’s request for “all Brady v. Maryland material,” a
certification from his new attorney, his own certification and
the police report prepared by the arresting officer, Patrolman
Adam Errico of the Audubon Police Department.
Aside from defendant’s prior admissions to driving after
consumption of four or five beers and a shot of tequila, the
only factual information about defendant’s violation before the
trial court was the following account provided in Errico’s
report. Errico took note of defendant’s Mercedes at 00:46 hours
on September 27, 2006. The Mercedes approached the rear of his
patrol car from the south at a high rate of speed, swerved into
the northbound traffic lane, and returned to the southbound lane
at a point behind and “extremely close to” the rear bumper of
the patrol car. Errico pulled into an intersecting street,
allowed the Mercedes to pass and then followed it from behind.
The driver turned onto another street and parked in front of
defendant’s home. At that point, Errico turned on his overhead
6 A-2582-08T4
lights and parked behind the Mercedes. When the Mercedes came
to a stop, defendant got out of the car and started to walk away
from the officer; he did not comply with Errico’s direction to
return to the Mercedes. After detecting alcohol on defendant’s
breath, Errico administered sobriety tests, some of which
defendant was unable to perform. Defendant subsequently
resisted the officer’s attempt to arrest him, and Errico needed
assistance to effectuate his arrest. At headquarters, defendant
was cooperative, but he told Errico that “all the charges would
be dropped because he was never driving a car.”
The certification defendant submitted in support of his
motion to vacate the plea did not include a denial of driving on
September 27, 2006.3 Instead, defendant noted that he told
“Patrolman Errico that [he] was not operating [the] vehicle
prior to the ‘stop'” and quoted the corroborating passage from
Errico’s report. He also asserted that he told his attorney he
3 Defendant’s new attorney was careful to inform the
judge that defendant’s certification did not include an
“actual[] den[ial]” of operation. See N.J.R.E. 410(2)
(permitting use of a statement made during a plea proceeding “in
a criminal proceeding for perjury, false statement, or other
similar offense” but otherwise prohibiting use of those
statements at trial); State v. Malik-Ismail, 292 N.J. Super.
590, 595 (App. Div. 1996) (noting that N.J.R.E. 410(2)
“effectively supersedes” State v. Boyle, 198 N.J. Super. 64
(App. Div. 1984), a case permitting use of statements made at
the time of guilty plea later withdrawn to impeach defendant’s
inconsistent testimony at trial). See generally State v. Boone,
66 N.J. 38, 50 (1974).
7 A-2582-08T4
“wanted to testify that [he] never operated the car,” but he did
not provide any account or description of the circumstances that
led to his early-morning arrest outside his home.
Defendant, repeating what he claimed his former attorney
told him, certified that his lawyer had “assured [him that] he
[had] made a formal request for the video[] and was told by the
State that no video existed depicting the ‘stop.'” He asserted
that he pled guilty because he believed he had no other choice.
According to defendant, his former attorney counseled him that
his denial of driving would raise a question of credibility that
the judge would likely resolve against him.
After the Chun decision, defendant’s newly retained
attorney requested the videotape. There is now no dispute that
a recording was made and the evidence it contained was
subsequently destroyed in accordance with the police
department’s procedures calling for reuse of the videotapes
after ninety days.
The attorney representing defendant on the motion to vacate
his guilty plea relied upon Parsons. He argued that because the
videotape was no longer available, the judge was required to
assume that it contained exculpatory evidence material to his
decision to plead guilty and warranting withdrawal of his guilty
plea.
8 A-2582-08T4
The judge of the municipal court applied Parsons, rejected
defense counsel’s argument, reiterated the terms of the sentence
imposed in November 2006 and stayed defendant’s sentence for an
additional twenty days to permit him to file an appeal in the
Law Division. Defendant’s appeal from the denial of that motion
was heard in the Law Division on December 18, 2008. The court,
relying for the most part upon the inconsistency between
defendant’s admission of operation at the time of the plea and
his claim about the exculpatory value of the videotape, denied
defendant’s motion and imposed the same sentence. Defendant’s
subsequent applications for a further stay of the execution of
his sentence pending appeal were denied by the Law Division,
this court and the Supreme Court.
Defendant raises three issues on appeal:
I. THE APPELLATE DIVISION SHOULD PROVIDE
GUIDANCE TO LOWER COURTS CONSIDERING A
REQUEST FOR A STAY OF A FIRST OFFENSE
DRIVING WHILE INTOXICATED MANDATED
DRIVER’S LICENSE SUSPENSION, DURING AN
APPEAL ALLEGING DIRECT VIOLATION BY THE
STATE OF DEFENDANT’S CONSTITUTIONAL
RIGHT TO DUE PROCESS, WHEN THE DENIAL
OF THE REQUEST FOR A STAY ESSENTIALLY
GUARANTEES DEFENDANT WILL SUFFER THE
DETRIMENT OF A LICENSE SUSPENSION
REGARDLESS OF THE OUTCOME OF THE
APPEAL.
II. A DEFENDANT IS ENTITLED TO INDULGENCE
FROM THE COURT WHEN MOVING TO WITHDRAW
A GUILTY PLEA, BEFORE SENTENCING, WHEN
THE PLEA WAS GIVEN BEFORE LEARNING OF
9 A-2582-08T4
THE STATE’S FAILURE TO PROVIDE
EXCULPATORY EVIDENCE IN ACCORDANCE WITH
STATE V. PARSONS.
III. ALL CHARGES AGAINST APPELLANT SHOULD BE
DISMISSED PURSUANT TO UNITED STATES V.
PICARIELLO.
We consider the argument presented in Point II of
defendant’s brief first. Absent “an abuse of discretion which
renders the lower court’s decision clearly erroneous,” State v.
Simon, 161 N.J. 416, 444 (1999), we must affirm a trial court’s
decision on a motion to vacate. A denial of a motion to vacate
a plea is “clearly erroneous” if the evidence presented on the
motion, considered in light of the controlling legal standards,
warrants a grant of that relief. See State v. Slater, 198 N.J.
145, 164 (2009).
These are the legal standards that govern defendant’s
application. Because defendant’s motion to vacate his plea was
filed twenty months after the municipal court imposed and stayed
execution of his sentence, he was required to demonstrate that
withdrawal of his plea was necessary to correct a “manifest
injustice.” R. 7:6-2(b); see R. 3:21-1; Slater, supra, 198 N.J.
at 158. His claim that the trial court was required to review
his motion with indulgence under the less burdensome “interest
of justice” standard is based, at best, on a misunderstanding of
either the facts or the law.
10 A-2582-08T4
Since the trial court denied defendant’s motion, the
Supreme Court has provided guidance for assessment of a motion
to withdraw guilty pleas. Slater, supra, 198 N.J. at 157.
Trial judges must “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.” Id. at 157-58. “No factor is
mandatory; if one is missing, that does not automatically
disqualify or dictate relief.” Id. at 162. And, where, as
here, the motion is made subsequent to sentencing, the timing is
relevant to “the strength of the reasons proffered in favor of
withdrawal” under the second factor; “efforts to withdraw a plea
after sentencing must be substantiated by strong, compelling
reasons.” Id. at 160.
In the context of Slater, defendant’s claim — that he
should be permitted to withdraw his plea because the State did
not comply with its obligation to provide the videotape in
discovery — is relevant to the second factor — “the nature and
strength of defendant’s reasons for withdrawal.” Id. at 157-58.
11 A-2582-08T4
On this post-sentence motion, he was required to substantiate
the claim with “strong, compelling reasons.” Id. at 160.
Defendant’s entitlement to relief under Parsons depends
upon proof that his right to due process was violated by the
State’s failure to disclose or preserve exculpatory evidence as
recognized in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963), California v. Trombetta, 467 U.S. 479,
488, 104 S. Ct. 2528, 2533, 81 L. Ed. 2d 413, 422 (1984), United
States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d
481 (1985), and Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct.
333, 102 L. Ed. 2d 281 (1988). See State v. Marshall, 123 N.J.
1, 107-09 (1991). To make that showing, defendant was required
to demonstrate that: “(1) the prosecutor failed to disclose the
evidence, (2) the evidence was of a favorable character to the
defendant, and (3) the evidence was material. Moore v.
Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972);
Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d
1217 (1959).” Parsons, supra, 341 N.J. Super. at 454-55. The
measure of materiality is the likely impact of the evidence
withheld, i.e., whether there is “a reasonable probability” that
if the evidence had been disclosed “the result of the proceeding
would have been different.” Bagley, supra, 473 U.S. at 682, 105
S. Ct. at 3383, 87 L. Ed. 2d at 494. And, a “reasonable
12 A-2582-08T4
probability” is one “sufficient to undermine confidence in the
outcome.” Ibid.
In Parsons, this court articulated that standard for
evaluating materiality when the defendant seeks to vacate a
guilty plea on a claimed Brady violation. 341 N.J. Super. at
454-56. We concluded that “materiality,” in that context,
requires the defendant to show a reasonable probability that he
or she would not have pled guilty if the State had provided the
evidence. Ibid.; accord Campbell v. Marshall, 769 F.2d 314, 324
(6th Cir. 1985) (rejecting a claim on the ground that the
defendant had not shown that the evidence would have been
controlling in his decision to plead guilty). We identified
five factors bearing on the probability that defendant would not
have pled guilty but for the discovery violation: “(1) the
relative strength and weakness of the State’s and the
defendant’s case, (2) the persuasiveness of the withheld
evidence, (3) the reasons, if any, expressed by the defendant
for choosing to plead guilty, (4) the benefits obtained
[through] the plea, and (5) the thoroughness of the plea
colloquy.” Parsons, supra, 341 N.J. Super. at 456. Viewed in
light of Slater, these Parsons’ factors are relevant to the
defendant’s reasons for withdrawing the plea.
13 A-2582-08T4
In Parsons, the State conceded that it withheld evidence
that was “favorable to defendant, discoverable under our rules
of practice, and should not have been concealed.” Id. at 455.
In this case, there is no question that the State had an
obligation, pursuant to the applicable discovery rule, to
provide the videotape. R. 7:7-7(b). Even if the prosecutor was
not aware of its existence, the arresting officer was, and the
officer’s knowledge is imputed to the State. See Kyles v.
Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 1567-68, 131 L.
Ed. 2d 490, 508-09 (1995) (imputing knowledge of evidence known
to the police to the prosecutor); accord State v. Womack, 145
N.J. 576, 589 (1996), cert. denied, 519 U.S. 1011, 117 S. Ct.
517, 136 L. Ed. 2d 405. Unlike in Parsons, however, in this
case the State does not concede that the videotape was favorable
to the defense.
Defendant claims that the trial court was required to
assume that the tape, now erased, included evidence favorable to
him and material to his decision to plead guilty. Precedent
does not support that assertion. For purposes of entitlement to
relief under Brady and the Due Process Clause of the Fourteenth
Amendment, a defendant must show that evidence withheld is
“‘material exculpatory evidence.'” Marshall, supra, 123 N.J. at
14 A-2582-08T4
109 (quoting Youngblood, supra, 488 U.S. at 57-58, 109 S. Ct. at
337, 102 L. Ed. 2d at 289).
When the evidence withheld is no longer available, to
establish a due process violation a defendant may show that the
evidence had “an exculpatory value that was apparent before [it]
was destroyed” and that “the defendant would be unable to obtain
comparable evidence by other reasonably available means.”
Trombetta, supra, 467 U.S. at 489, 104 S. Ct. at 2534, 81 L. Ed.
2d at 422; see Marshall, supra, 123 N.J. at 108-09.
Alternatively, if the defendant cannot establish that the now
lost evidence had “apparent” exculpatory value and can show only
that the evidence was “potentially” useful or exculpatory, then
the defendant can show a due process violation by establishing
that the evidence was destroyed in bad faith. Youngblood,
supra, 488 U.S. at 57-58, 109 S. Ct. at 337, 102 L. Ed. 2d at
289; see State v. Reynolds, 124 N.J. 559, 569 (1991) (rejecting
Brady claim because the destroyed tapes in issue “did not
possess any apparent exculpatory value, and because their
destruction did not involve bad faith”); cf. State v. Greeley,
354 N.J. Super. 432, 437 (App. Div. 2002), rev’d on other
grounds, 178 N.J. 38 (2003) (considering “‘(1) the bad faith or
connivance by the government; (2) whether the evidence was
sufficiently material to the defense; and (3) whether the
15 A-2582-08T4
defendant [has been] prejudiced’ by the loss of the evidence”
and quoting State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.
1997), certif. denied, 152 N.J. 10 (1997), cert. denied, 524
U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998)); State v.
Colasurdo, 214 N.J. Super. 185, 189 (App. Div. 1986) (quoting
State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.),
certif. denied, 101 N.J. 335 (1985)).4
The evidence defendant presented to the trial court did not
establish that the videotape had more than “potential
exculpatory” value relevant to a violation of N.J.S.A. 39:4-50.
The State was required to show that defendant was driving and
was intoxicated. Defendant’s Alcotest results established his
intoxication as a matter of law, and nothing depicted on the
videotape could defeat that proof of a per se violation. State
v. Gordon, 261 N.J. Super. 462, 467 (App. Div. 1993). At the
time of his guilty plea, defendant admitted that he was driving.
In support of his motion to withdraw, defendant provided no
information to the trial court that would have allowed the court
to conclude that the videotape included evidence that would show
4 Some jurisdictions have determined as a matter of
state constitutional law that proof of bad faith is not
required. See, e.g., State v. Johnson, 951 A.2d 1257, 1284
(Conn. 2008). As indicated by the citations to Marshall and
Reynolds above, the New Jersey Supreme Court has followed
Youngblood.
16 A-2582-08T4
he was not driving. Defendant’s certification did not include a
denial of driving — a fact his attorney was careful to point out
to the judge — or any factual assertions suggesting the
videotape would show him doing something inconsistent with
having driven the car. He did not, for example, indicate that
someone else was driving or that he was outside after midnight
because he was taking a walk, welcoming a guest or getting
something from his car. Moreover, Patrolman Errico’s report,
the only relevant evidence of the event presented to the trial
court, suggests nothing other than that the video camera in his
patrol car was activated after the Mercedes had stopped; that is
when Errico reports that he switched on the patrol car’s
overhead lights. From the information presented on the motion,
the most one could conclude is that the videotape might not show
defendant driving or getting out of the parked car. But, even
if the videotape failed to depict that conduct, it would not
establish that defendant had not been operating the car before
the video camera was activated.
The record is also devoid of evidence that would permit an
inference of bad faith or connivance on the part of the State at
the time the evidence was destroyed. Defendant was arrested on
September 27, 2006 and pled guilty on November 29, 2006,
approximately two months after his arrest. Defendant does not
17 A-2582-08T4
dispute that the videotape was reused in accordance with
departmental procedures no earlier than ninety days after his
arrest, which is about a month after his guilty plea. Those
facts are not indicative of bad faith. See Reynolds, supra, 142
N.J. at 569. After the plea, the State had no reason to assume
or suspect that the videotape would play any role in this case.
Even before the plea, given defendant’s Alcotest results and
Errico’s report, a videotape that did not depict defendant
driving or getting out of his car would not have “apparent”
exculpatory value.
Because defendant did not establish that the videotape had
exculpatory value that was apparent to the State when it was
erased through reuse or that its potentially exculpatory value
was destroyed in bad faith, defendant could not establish his
entitlement to relief. Ibid. Even if we were to assume that
the videotape included exculpatory evidence and was available to
the prosecution at the time of discovery, we could not conclude
that defendant demonstrated that the videotape was material to
his decision to plead guilty. See United States v. Pedraza, 27
F.3d 1515, 1527 (10th Cir. 1994) (assuming existence at the time
of discovery and considering materiality), cert. denied, 513
U.S. 941, 115 S. Ct. 347, 130 L. Ed. 2d 303.
18 A-2582-08T4
Under Parsons, defendant was required to establish a
reasonable probability that he would not have pled guilty if he
had the videotape, which is largely a function of the relative
strength and weakness of the case for the prosecution and the
defense and the persuasiveness of the withheld evidence. 341
N.J. Super. at 456. In making that assessment, other courts
have considered statements made by the defendant at the time of
the plea. See Campbell, supra, 769 F.2d at 322, 324 (finding
that knowledge of a victim’s possession of a gun, while
important to the defendant and his attorney, would not have led
him to go to trial on a claim of self-defense because of the
great weight that must be assigned to defendant’s admission,
made in open court at the time of his guilty plea, that he shot
his former wife and her companion because they were with one
another). We agree with that approach.
Nothing in Parsons or Slater precludes consideration of the
factual basis a defendant provided at the time of a guilty plea
in evaluating the persuasive value of evidence withheld by the
State on a motion to vacate a guilty plea. Parsons simply holds
that courts “should not insist that the defendant proclaim his
innocence in order to retract a guilty plea” when the relief is
sought due to the State’s failure to provide discovery. 341
N.J. Super. at 457. Slater holds that a defendant who has
19 A-2582-08T4
provided a factual basis for his guilty plea may establish a
plausible claim of innocence and a reason for withdrawal of a
plea by asserting that he was not aware of a possible defense
when he pled guilty. 198 N.J. at 163-65. The question here is
different; it is whether a court is required to assume that the
defendant would have testified to facts in direct conflict with
those facts he stated, under oath, at the time of his guilty
plea. We decline to adopt such a rule because it would be in
conflict with decisions of our Supreme Court stressing the
necessity for a defendant to provide a truthful factual basis
for a guilty plea under oath. See State v. Taccetta, 200 N.J.
183, 195-96 (2009).
For the foregoing reasons, we cannot conclude that the
trial court was required to assess the persuasive value of the
videotape on the assumption that defendant would have denied
driving if he had proceeded to trial instead of pleading guilty.
Because defendant admitted that he was driving at the time of
the plea, the court could properly assume that defendant would
have done nothing more than leave the State to its proofs.
Thus, the question material to defendant’s decision to plead
guilty was the persuasive value of the videotape on the issue of
driving in light of the State’s evidence. Relying on our
earlier discussion of the potential value of the videotape in
20 A-2582-08T4
light of Errico’s report, it is apparent that the videotape
would have been inconclusive on the question whether defendant
was driving the Mercedes before his arrest. In short, the
videotape might have provided some fodder for cross-examination
of Errico about defendant’s driving in addition to the material
already available based on the passage in Errico’s report noting
defendant’s denial at police headquarters. So viewed, the
persuasive value would have been negligible.
On this record, the trial court could not have concluded
that if defendant had the videotape he would have gone to trial
and rejected the favorable plea bargain he received, which
resulted in the dismissal of numerous charges and permitted him
to reserve his right to challenge the Alcotest results in the
event the Supreme Court found the device unreliable. As that
was the only reason defendant gave for moving to withdraw his
guilty plea twenty months after he was sentenced, defendant
simply did not meet his burden of providing the trial court with
a strong and compelling reason to grant that relief. Slater,
supra, 198 N.J. at 160.5
5 Defendant does not argue that the court erred by
making that determination without taking testimony. Given
defendant’s sworn admission to driving at the time of his guilty
plea and his cautious reliance on his post-arrest denial as
reported by Errico in support of his motion, we see no reason to
disturb the trial court’s decision to discredit defendant’s bald
(continued)
21 A-2582-08T4
None of the other relevant factors identified in Slater
weigh in defendant’s favor. He did not “assert[] a colorable
claim of innocence” and, as noted above, his plea was entered
pursuant to “a plea bargain” that was quite favorable. Id. at
157-58. Other than the prejudice inherent in the fact that the
videotape had been destroyed in accordance with the police
department’s procedures and consequently was no longer available
to the prosecution, there is no evidence relevant to “unfair
prejudice to the State or unfair advantage to the accused,” but
the State is not obligated to show prejudice when the “defendant
fails to offer proof of other factors in support of the
withdrawal of a plea.” Id. at 161-62.
The record did not permit a finding that a grant of
defendant’s motion to vacate his guilty plea was necessary to
correct a manifest injustice. Accordingly, we affirm.
In light of our conclusion that defendant failed to
establish a due process violation related to discovery, it is
unnecessary for us to address the issues raised in Point III of
defendant’s brief. With respect to the argument raised in Point
I, we find no need for clarification or amplification of the
standards governing a stay pending appeal and conclude that the
(continued)
assertion about the importance of the videotape to his decision
to enter a guilty plea.
22 A-2582-08T4
arguments lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.