STATE OF NEW JERSEY VS. ANTHONY J. DICARLO, JR. (E12-0757, E12-0758 AND E12-0759, ATLANTIC COUNTYAND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4222-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY J. DICARLO, JR.,
Defendant-Appellant.
___________________________________________
Submitted May 16, 2017 – Decided July 18, 2017
Before Judges Espinosa and Grall.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Municipal Appeal Nos. E12-0757, E12-0758,
and E12-0759.
Helmer, Conley & Kasselman, P.A., attorneys
for appellant (Patricia B. Quelch, of
counsel and on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for appellant (John J. Lafferty,
IV, Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Defendant Anthony J. DiCarlo, Jr. pled guilty to "operating
a motor vehicle with a blood alcohol concentration of 0.08%
blood alcohol concentration or more . . . ." N.J.S.A. 39:4-
50(a). Defendant's attorney advised the municipal court judge
that his client was entering the plea with the understanding
that summonses issued on the same occasion would be dismissed.
Those summonses were for reckless driving, N.J.S.A. 39:4-96,
based on his driving sixty-five miles per hour in a construction
zone, and a violation summons of N.J.S.A. 39:4-88(b), based on
his making an unsafe lane change.
The judge asked defendant if he was pleading guilty because
he was guilty of driving under the influence, and defendant
said, "Yes." With defendant's attorney's consent, the judge
marked and admitted the State's exhibit, which was an Alcotest
worksheet reporting a .10 reading and a "mean reading of
.106750."
Addressing defendant, the judge said: "[P]lease
understand, sir, those two readings are more than sufficient in
and of themselves to form the basis for a conviction assuming
that the trooper was a qualified . . . Alcotest operator and the
machine was working properly on that day, do you understand
that, sir?" Defendant responded, "Yes." The judge's next
question was, "Is that why you are pleading guilty to the
charge?" Defendant said, "Yes" and proceeded to acknowledge
that his plea was "free and voluntary."
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Defense counsel addressed the judge on sentencing, and the
judge imposed an appropriate sentence and dismissed the other
summonses in conformity with the agreement. That was done on
September 13, 2012, and defendant did not appeal.
More than three years later, on October 15, 2015, defendant
appeared in municipal court on a motion to vacate the guilty
plea. Defendant was represented by a different attorney, who
argued that the plea was accepted without an adequate factual
basis. The judge who accepted the plea, after hearing counsel's
argument on the inadequacy of the questions he had posed in
eliciting a factual basis, denied the motion.
Defendant's new attorney appealed the denial of the motion
to vacate to the Superior Court. Our review is of the
proceeding in Law Division. State v. Johnson, 42 N.J. 146, 157
(1964) (addressing the process when appeals from convictions in
municipal courts were taken to county courts and then from the
county courts to the Appellate Division). Defense counsel
limited his argument to the adequacy of the factual basis,
arguing that a court may not presume facts required to establish
the essential elements of the offense. He contended the judge
failed to elicit any fact from defendant and argued that the
municipal court judge needed to inquire about what alcohol
defendant drank and when he drank it.
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The Superior Court judge distinguished proofs required to
establish disputed facts at trial and undisputed evidence
establishing the elements of an offense in a plea proceeding.
He found the State's exhibit reporting the Alcotest readings and
defendant's agreement that his blood count was tested "by
someone authorized to administer such a test, that it was, in
fact, above the limit of .08, and that he . . . also operated a
motor vehicle while under the influence . . . ." The judge
concluded that the exhibit and defendant's admissions provided
an adequate factual basis.
Having considered the record, the judge's decision, and the
arguments presented on appeal, we affirm. The arguments on
appeal, have insufficient merit to warrant discussion beyond the
brief comments that follow. R. 2:11-3(e)(2). In State v. Tate,
the Supreme Court provided the following guidance on the
importance of a factual basis for a guilty plea and what is
required to establish one:
[T]he principal purpose of the factual-basis
requirement . . . is to "protect a
defendant who is in the position of pleading
voluntarily with an understanding of the
nature of the charge but without realizing
that his conduct does not actually fall
within the charge." [The Rule] serves as a
fail-safe mechanism that filters out those
defendants whose factual accounts do not
equate to a declaration of guilt. Thus,
before accepting a guilty plea, "the trial
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court must be 'satisfied from the lips of
the defendant that he committed the acts
which constitute the crime.'" A factual
basis for a plea must include either an
admission or the acknowledgment of facts
that meet "'the essential elements of the
crime.'"
[220 N.J. 393, 406 (2015) (emphasis added
and citations omitted).]
The elements of the per se violation, which is the form of
driving while under the influence to which defendant pled
guilty, are straight forward. Pursuant to N.J.S.A. 39:4-50(a):
[A] person who [1] operates a motor vehicle
while under the influence . . . or [2]
operates a motor vehicle with a blood
alcohol concentration of 0.08% or more by
weight of alcohol in the defendant’s blood
or [3] permits another person who is under
the influence . . . to operate a motor
vehicle owned by him or in his custody or
control or permits another to operate a
motor vehicle with a blood alcohol
concentration of 0.08% or more by weight of
alcohol in the defendant’s blood" [commits
this offense].
The foregoing provision includes three separate bases for a
finding of guilt under N.J.S.A. 39:4-50(a). A factual basis for
both elements of the per se violation — operating a vehicle and
having a blood alcohol content of .08 or higher — was
established by defendant's acknowledgment that the reason for
his guilty plea was that he understood his "two readings [were]
more than sufficient in and of themselves to form the basis for
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a conviction assuming that the trooper was a qualified . . .
Alcotest operator and the machine was working properly on that
day." For that reason, Judge Tyner properly denied the motion
to vacate.
Affirmed.
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