State v. Paladino

Decision Date30 August 1985
Citation203 N.J.Super. 537,497 A.2d 562
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. John PALADINO, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Carolyn E. Arch, Montclair, attorney for defendant-appellant (Carolyn E. Arch, Montclair, on the brief).

Irwin I. Kimmelman, Atty. Gen. of N.J., attorney for plaintiff-respondent (Robert G. Farrer, Deputy Atty. Gen., of counsel and on the brief).

Before Judges McELROY and DREIER.

The opinion of the court was delivered by


On April 30, 1980, six municipal court complaints were filed against appellant, President of Parker Avenue General Contracting Corporation and Parker Avenue General for failure to remit unemployment and disability compensation contributions for the fourth calendar quarter of 1977, for all quarters of 1978 and for the first calendar quarter of 1979, in violation of N.J.S.A. 43:21-16(e). The remittances, with interest, totaled $101,603.41.

N.J.S.A. 43:21-16(e) provides:

(e) any employing unit or any officer or agent of an employing unit, employer or person failing to remit, when payable, any employer contributions, or worker contributions (if withheld or deducted), or the amount of such worker contributions (if not withheld or deducted), or filing or causing to be filed with the Division of Employment Security of the Department of Labor and Industry of the State of New Jersey, any false or fraudulent report or statement, and any person who aids or abets an employing unit, employer, or any person in the preparation of filing of any false or fraudulent report or statement with the aforesaid division with intent to defraud the aforesaid division or the State of New Jersey or an employment security agency of any other State or of the Federal Government, or with intent to evade the payment of any contributions, interest or penalties, or any part thereof, which shall be due under the provisions of this chapter (R.S. 43:21-1 et seq.), shall be liable for each offense upon conviction before any County Court, county district court, criminal judicial district court, or magistrate's court, to a fine not to exceed $1,000 or by imprisonment for a term not to exceed 90 days, or both, at the discretion of the court. The fine upon conviction shall be payable to the unemployment compensation auxiliary fund of the Division of Employment Security of the Department of Labor and Industry of the State of New Jersey. Any penalties imposed by this subsection shall be in addition to those otherwise prescribed in this chapter. (R.S. 43:21-1 et seq.).

The six complaints were filed April 30, 1980 and the case was listed for hearing on June 17, 1980. The record reveals that a number of adjournments were granted and the matter was rescheduled for September 24, 1980. The taped record of that hearing (or the typist's interpretation of it) is not of good quality. The transcript before us is sometimes difficult to follow but what occurred at that hearing we translate as follows.

On that date defendant appeared without a lawyer. He explained that the lawyer had "pulled away from the case" because he had not been paid, defendant stated he had no money to pay a lawyer and he explained that he had only "found out two days ago he [the lawyer] wasn't going to stay on the case because of nonpayment." Defendant asserted he had "called the court [that] morning and found out his court case was on today." He explained that his mail, i.e., "Parker Avenue Contracting mail was being sent to One Century (phonetic) City" and "[t]hey are not accepting the mail, so I never got notice." He sought another adjournment. The State objected on the ground that the case had been scheduled June 17th, July 7th, August 4th and then September 24th. Apparently there were other adjournments necessitated by a conflict defendant's original attorney had whereby he could not appear in the matter. This conflict caused the retention of another attorney, the one who did not appear because he was not paid. The prosecutor acknowledged that defendant's second attorney had "sent a letter which was received by my office yesterday pertaining that (undiscernible) did not receive this retainer...." Apparently the prosecutor had a copy of another letter that attorney had sent to the court dated August 7th seeking an adjournment (of the September 24th date?); the record does not disclose what action was taken on that request.

It is difficult to get much from this rather poor record but defendant apparently was then without a lawyer and the lawyer had withdrawn two days before the hearing because defendant did not or could not pay his retainer. Defendant, if credible, had no notice as to when the matter was to be heard, apparently because mail was sent to a place which refused to accept it; defendant also claimed he had "been calling the court every week to find out when this case was on" and that he claimed he finally found out the morning of the hearing that the case was on that very day. We cannot assess defendant's credibility as to those assertions but he apparently also attempted to state that he had a defense, that he had "papers" he wanted to bring into court "because there is criminal charges here and that is the part that bothers me." Just what that defense was is impossible to apprehend from this record.

It is apparent that the municipal court judge was frustrated with the numerous adjournments and particularly annoyed with defendant's latest request. It is also obvious that he felt defendant probably had no defense to the charges, as the following colloquy demonstrates.

THE COURT: You can't put off the inevitable here by continually asking for an adjournment, by not paying an attorney, by putting it off and putting it off. Eventually you are going to have to face this situation.

MR. PALADINO: Your Honor to be very honest with you because I didn't have the money.

THE COURT: Well that is the problem that you are here for right? You don't have money?


THE COURT: That is why the State is on your back, right? Alright now [the prosecutor] has in my experience has handled the situation in a way that I always thought was fair and one of the things he has been able to do is that once a guilty plea has been entered I can postpone sentencing and allow you an opportunity to pay the monies that you owe to the State. That is one alternative. The other alternative is for you to try this case today and prove to me that you don't owe them money which on the record, I will tell you frankly, I know you are going to have a heck of a problem.

MR. PALADINO: Your Honor may I ask a question?


MR. PALADINO: Being that I don't have an attorney I am looking for both of you gentlemen to help me out a little bit okay?


MR. PALADINO: If I plead guilty to the charges what I understand Parker Avenue General Contracting does owe this money in fact, I am not going to deny that, okay.


MR. PALADINO: But if I did plead guilty today and would I have time to bring the documents and everything in to a regular Court?

THE COURT: It would not change the verdict. Once you plead guilty you would be guilty. Then you still have the problem of paying the money.

* * *

* * *

MR. PALADINO: Well I could get the money your Honor from the Continental Bank. You see Mr. Slater for RSK Construction for which I subcontracted for is in Chapter 11 bankruptcy, so whatever the bank was doing they just stopped dispersing funds for that reason. 1 THE COURT: Well the point is that this complaint against you must be heard today, either you are going to try it and say I am not guilty and try your case, or you are going to enter a plea of guilty.

MR. PALADINO: Well your Honor to be honest with you.

THE COURT: You don't have any other choices is what I am telling you.

Thereafter the judge again denied defendant's request for an adjournment and told defendant "you are left with a choice of trying this case on your own pro se." When defendant asked what would happen if he pleaded guilty the judge stated that although he could not tell him the sentence in advance, "I can tell you that it has been my custom not to incarcerate anyone if there is no prior violation." Defendant replied, "I will plead guilty okay. I will go through the motions and then who do I see after that to get this money collected?" (Emphasis ours.)

In our view of the matter, the portion we have emphasized illustrates defendant's probable state of mind toward the dilemma he was in: he could not personally try the case; he was told he probably would not go to jail; he did not feel he was personally guilty (see the footnote, ante); he could not afford to pay the large sum due to the State, but he thought he could get the persons responsible to come up with restitution. We note that at an earlier point he had asked the judge whether "if I did plead guilty today and would I have time to bring the documents and everything in to a regular court?" Although the judge then told him that once he pleaded guilty he would "still have the problem of paying the money" it is apparent that defendant nevertheless believed the burden of restitution would not be his to bear. As we shall shortly demonstrate, he misapprehended the effect of his guilty plea; he was given a suspended 90 day sentence and placed on probation for one year conditioned upon payment, within that time, of the more than $100,000 due to the State. Our view is also borne out by the fact that after the judge explained that under the law the court could fine defendant $1,000 and impose up to 90 days in jail on each charge, defendant remarked that he understood but he wanted nevertheless "to get the money." No one explained to defendant that while he might not go to jail he could be subject to an order requiring him to personally pay, $101,603.41, within one year, as a...

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