State v. Alevras

• Decision Date: 20 October 1986
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Chris G. ALEVRAS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 331

213 N.J.Super. 331

517 A.2d 460

STATE of New Jersey, Plaintiff-Respondent, v. Chris G. ALEVRAS, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Sept. 10, 1986.

Decided Oct. 20, 1986.

Chris G. Alevras, Iselin, pro se.

W. Cary Edwards, Atty. Gen., for plaintiff-respondent (Kenneth M. Denti, Deputy Atty. Gen., of counsel and on the letter-brief).

Before Judges FURMAN and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

Pursuant to a negotiated disposition, defendant pled guilty to counts 1, 2, 3 and 4 of indictment 347-3-84, counts 1, 10, 13, 15, 17, 19 and 21 of indictment 348-3-84, counts 1, 4 and 5 of indictment 351-3-84 and to Accusation 241-9-84. The remaining counts of indictment 348-3-84 and all of indictments 344-3-84, 345-3-84, and 1002-8-84 were dismissed as to defendant.

The negotiated disposition was explained as follows in a colloquy between the prosecutor and the court at the time of plea:

MR. WEST: ... There are seven indictments--correction, six indictments plus the accusation against Mr. Alevras. And as I understand the plea bargain, Mr. Alevras is prepared at this time to enter pleas of guilty to Counts 1, 10, 13, 15, 17, 19, and 21 of Indictment 348-3-84; also Counts 1, 2, 3, and 4, which is the entire indictment of 347-3-84; Counts 1, 4, and 5 of Indictment 351-3-84; and Accusation 241-9-84.

In exchange for those pleas of guilty, the State will move to dismiss the remaining counts of Indictment 348-3-84, Indictment 1002-84 in its entirety, Indictment 344-3-84 as it relates to this defendant, Indictment 345-3-84, in its entirety including the indictment against the codefendant.

THE COURT: Which codefendant?

MR. WEST: Mr. Alevras' wife. And the State will recommend the following: A total sentence of max 12 years with a minimum parole period of ineligibility of four years. That sentence is to run concurrent with the present sentence he is serving which, for the Court's knowledge, is a five year State prison sentence with a two-and-a-half year parole ineligibility sentence.

THE COURT: That's a Middlesex County sentence?

MR. WEST: That's correct. He began serving that approximately a month ago, if I'm not mistaken.

THE COURT: Okay.

MR. WEST: In addition, the State will recommend that the sentence imposed is to run concurrent with any other sentence he receives. For instance, he has some outstanding charges from New York. He has a possible parole violation out of the State of New York. We're recommending that the sentence in New Jersey run concurrently but not limited to the sentences he may get outside this jurisdiction. All right?

And, finally, two other problems.

THE COURT: Wait a minute. Say that again. You want whatever the Court here imposes on these charges to run concurrent with a parole violation in New York, which has not been yet imposed?

MR. WEST: Our sentence will not be consecutive. Obviously, it can't be if it hasn't been done yet, but we're making a promise-- THE COURT: All right.

MR. WEST: That we're not going to ask for an extended term, which he might be eligible for.

Finally, we reserve the right to be heard at sentence.

There's one other promise that was made or an inducement to Mr. Alevras, and that is we're saying to him that he preserves the right to appeal a denial of a motion to dismiss the indictments and complaint which was heard before Judge Kuhlthau on December 3, 1984. He preserves the right to appeal that.

At the plea hearing the defendant acknowledged his maximum exposure to all offenses and to the offenses for which he pled guilty, indicated his knowledge that pursuant the agreement he was exposed to 12 years with a minimum parole ineligibility period of four years and indicated a factual basis for each offense to which a guilty plea was entered. Indictment 347-3-84 alleged violations of N.J.S.A. 2C:21-5 (issuing a bad check) in counts one and three and violations of N.J.S.A. 2C:20-4 (theft by deception) in counts two and four. At the plea hearing the defendant gave the following factual basis with respect to those counts:

MR. WEST: ...

Okay, Indictment 347 has four counts. The first count indicates that between--strike that--on or about October 8, 1983, in the Township of Millburn, County of Essex, you issued a check dated October 5, 1983, drawn on an account of a John Libretto, at the Bank of the South located in Forest Park, Georgia, in the amount of $15,000, and when you gave the merchants, and when you gave the individuals that check, you knew it was a bad check. Is that correct?

THE DEFENDANT: Yes.

MR. WEST: Specifically, on or about that date you gave a $9,500 check payable to you and John Libretto to a Patricia Fine. Is that correct?

THE DEFENDANT: Yes.

MR. WEST: Specifically, you gave to a person who worked for a jewelry store known as Kroupa Jewelers a check in the amount of $15,000, and you knew the check was bad. Isn't that correct?

THE DEFENDANT: Yes.

MR. WEST: And the second count says on or about the 14th day of October, 1983, also at Kroupa Jewelers in the Township of Millburn, this is at the Short Hills Mall--correct?

THE DEFENDANT: Yes.

MR. WEST: --you obtained from Kroupa Jewelers property in excess of $500 with the use of that bad check. Is that correct?

THE DEFENDANT: Yes.

MR. WEST: And in effect, you got approximately $13,000 in jewelry and $2,000 in change. Is that correct?

THE DEFENDANT: Yes.

MR. WEST: Count three indicates that on or about October 17, 1983, in Edison, you uttered to an individual check number 101 dated September 30, 1983, drawn on the account of John Libretto at the Bank of the South in the amount of $9,500 knowing that the Bank of the South would not honor the check. Is that correct?

THE DEFENDANT: Yes.

MR. WEST: When you gave the check to Mrs. Fire, you knew the Bank of the South wouldn't honor the check. Is that correct?

THE DEFENDANT: Yes.

MR. WEST: And the last count of this indictment says by use of that check you obtained from Patricia and Robert Fire property in the amount of $500. Is that correct?

THE DEFENDANT: Yes.

MR. WEST: And, in fact, you obtained exactly $9,000. Is that correct?

THE DEFENDANT: Yes.

In direct response to a question from the court the defendant again acknowledged that he understood that he could be sentenced up to 12 years in custody and that he could be required "to serve at least four years before being eligible for parole."

The court sentenced defendant on indictment 347-3-84 to the custody of the Commissioner of Corrections for three years on each of the four counts, each term "to run consecutive to each other" for an aggregate of twelve years, and the court further ordered that the defendant "serve a minimum period of four years before he may become eligible for parole." The sentences on the four counts were made concurrent with the sentence defendant was then serving on another indictment for which he had been convicted and sentenced the month before (indictment 346-3-84). Further, the sentences on the four counts of indictment 347-3-84 were also made concurrent with concurrent three year custodial sentences simultaneously imposed on indictments 348-3-84 and 351-3-84 and on accusation 241-9-84. All the sentences imposed were also made concurrent "with violation of parole, if any." Hence, the court imposed an aggregate sentence of 12 years in custody with four years to be served before parole eligibility.

Defendant appeals and argues:

POINT I WHERE FROM THE PLEA BARGAIN TERMS AND TOTALITY OF THE CIRCUMSTANCES DEFENDANT'S SUBJECTIVE UNDERSTANDING IS THAT THE MAXIMUM PAROLE INELIGIBILITY TERM WOULD BE FOUR YEARS, THE VALIDITY AND REASONABLENESS OF WHICH IS ACKNOWLEDGED AND CONFIRMED BY DEFENSE COUNSEL AND THE PROSECUTOR, IT IS CONSTITUTIONAL ERROR FOR THE COURT TO IMPOSE A PAROLE DISQUALIFIER EFFECTIVELY EXCEEDING FOUR YEARS. V, VI, XIV USCA. (This issue was raised in the court below)

POINT II WHERE AS PART OF A PLEA BARGAIN THE PROSECUTOR PROMISES TO RECOMMEND SPECIFIC SENTENCING PARAMETERS WHICH ARE ILLEGAL AND STATUTORILY PROHIBITED SUCH PROMISE IS DEEMED UNFULFILLABLE THEREBY RENDERING THE GUILTY PLEA FATALLY FLAWED AND CONSTITUTIONALLY INFIRM. V, VI, XIV USCA. (This issue was raised in the court below)

POINT III WHERE FACTUAL INTERDEPENDENCE OF INDICTMENT COUNTS IS SUCH THAT PROOF OF GUILT IN ONE IS CONDITION PRECEDENT TO PROVING GUILT IN OTHER, AND ALL COUNTS ARE DERIVED FROM AND CONTAINED WITHIN SINGLE CRIMINAL EPISODE, MERGER PRECLUDES CONSECUTIVE SENTENCING. V, XIV USCA. (This issue was not raised in the court below)

POINT IV WHERE DEFENDANT, A CORE CONSPIRATOR, HAS PREVIOUSLY BEEN CONVICTED OF CONSPIRACY, DOUBLE JEOPARDY PROHIBITS SUBSEQUENT PROSECUTION FOR OFFENSES COMMITTED IN FURTHERANCE OF THE SINGLE CONSPIRACY OR COMMON PLAN. ALTERNATELY, THE HEARING IN THE COURT BELOW FAILED TO COMPLY WITH DUE PROCESS REQUIRING THE ISSUE BE REMANDED FOR REHEARING AND REDETERMINATION.

At the time of plea defendant preserved his right to challenge the denial of his motion to dismiss. See R. 3:9-3(f). Given the pendency of the charges against him in Middlesex County, it would have been prudent for the prosecutor to have avoided the issue regarding statutory bars to prosecution for the offenses not moved simultaneously with indictment 346-3-84 by making an application under N.J.S.A. 2C:1-8c for separate trials. See also R. 3:15.

We need not decide whether all the offenses could have been joined in a single indictment against defendant charging conspiracy or otherwise, see N.J.S.A. 2C:5-2b and c; R. 3:7-6, because our review of the indictments indicates that each related to different times, places and events and that mandatory joinder was not required under N.J.S.A. 2C:1-8b. Cf. State v. Gregory, 66 N.J. 510, 333 A.2d 257 (1975), where the Supreme Court concluded that a defendant could not, after trial for sale of a controlled dangerous substance, be tried for possession of that...