STATE OF NEW JERSEY VS. MARCQUESE W. PAISLEY (15-06-0720, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4154-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCQUESE W. PAISLEY,
Defendant-Appellant.
—————————————————————————————
Submitted June 8, 2017 – Decided July 26, 2017
Before Judges Lihotz and Hoffman.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
15-06-0720.
Joseph E. Krakora, Public Defender, attorney
for appellant (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Jason M. Boudwin,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Marcquese Paisley appeals from his judgment of
conviction, based on his guilty plea to second-degree kidnapping,
N.J.S.A. 2C:13-1(b), and third-degree possession of a weapon for
unlawful purposes, N.J.S.A. 2C:39-4(d). Defendant's appeal
focuses on the denial of his motion to withdraw his guilty plea;
he asserts the plea record failed to establish a factual basis
supporting his kidnapping conviction. Defendant also challenges
the length of his sentence. Having reviewed these arguments in
light of the record and the applicable law, we affirm.
I.
Defendant's convictions arose from a home break-in he
committed in Edison on the night of November 30, 2014; at
approximately 11:00 p.m., defendant forced his way into the home
of victims T.S. and H.S., her mother. Brandishing a large knife,
defendant ordered T.S. and H.S onto the living room couch, where
a third victim, J.C., was already sitting, and demanded all of
their cell phones.
Defendant then ordered the three victims into the bathroom,
which he also entered, shutting and locking the door behind him.
He ordered T.S. and H.S. into the bathtub and J.C. to sit on the
toilet. Defendant then threatened to cut J.C.'s throat and
threatened to stab T.S. in the liver. He next ordered J.C. into
the bathtub and continued to threaten J.C. and T.S. After bringing
2 A-4154-15T2
the victims out of the bathroom to different rooms and threatening
them, defendant fled the residence.
The three victims gave statements to police identifying
defendant as the perpetrator. Police subsequently responded to
defendant's workplace and requested he come to the station for an
interview. During the interview, defendant confessed to
committing the crime and said he had been drinking prior to the
act. Police then arrested defendant.
On June 11, 2015, a Middlesex County grand jury returned an
indictment, charging defendant with the following offenses:
second-degree burglary, N.J.S.A. 2C:18-2 (count one); first-degree
kidnapping, N.J.S.A. 2C:13-1(b) (count two); second-degree
attempted theft by extortion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-
5 (count three); second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) (count four); third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(2) (count five); third-degree terroristic threats,
N.J.S.A. 2C:12-3(a) (counts six, seven, and eight); third-degree
terroristic threats, N.J.S.A. 2C:12-3(b) (count nine); third-
degree possession of a weapon for unlawful purposes, N.J.S.A.
2C:39-4(d) (count ten); and fourth-degree unlawful possession of
a weapon, N.J.S.A. 2C:39-5(d) (count eleven).
Pursuant to a plea agreement, on August 24, 2015, defendant
pled guilty to count two, amended to second-degree kidnapping, and
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count ten. The State agreed to recommend a ten-year term of
imprisonment on count two, subject to the period of parole
ineligibility imposed by the No Early Release Act, N.J.S.A. 2C:43-
7.2, and a concurrent five-year sentence on count ten, with the
sentences to run concurrent to pending violation of probation
charges against defendant.
At the plea hearing, the following colloquy occurred with
defendant to establish the factual basis for second-degree
kidnapping:
Q. So, Marcquese, it's real simple,
Marcquese Paisley, it says in Count 2 that on
November 30th, 2014, this happened in Edison,
New Jersey. Is that true so far?
A. Correct.
Q. Now, did there come a point in time where
you entered the residence of either [H.S.]
and/or [T.S.] and/or [J.C.]?
A. Yes.
Q. Now, . . . what happened? You tell me
in your own words. Let me do it this way.
You tell me what did you do wrong? Is it an
apartment house or is it a . . . house?
A. An apartment.
Q. In an apartment. And what did you do
wrong, Marcquese Paisley[,] in that apartment?
A. I went into their house and pushed the
three of them into the bathroom with a knife.
Q. With a knife. And why did you do that?
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A. Because I was intoxicated and because
[H.S.] stole money from a friend of mine.
Q. Okay. So it wasn't even your beef?
A. No.
Q. But you wanted to get your friend's money
back, so . . . you thought it would be prudent
to go into that residence with a knife to get
that money back, yes?
A. Yes, Your Honor.
Q. But then . . . in order to help accomplish
your ends, you confined these people. So
kidnapping is taking a person from one
location to another and you stop their
liberty. You – by confining them, . . . you
prohibited them from . . . gaining any kind
of freedom. So you –
. . . .
Q. So, now the knife that you had, it wasn't
for a lawful purpose, it was for the purpose
– and I'm going over the other count at the
same time, Count 10 – the purpose that you had
that knife was for an illegal purpose, wasn't
it?
A. Yes, Your Honor.
Q. Because you were displaying that knife
in such a fashion that it assisted you in
committing the underlying crime of kidnapping
by forcing them . . . into that bathroom,
right?
A. Yes.
Q. So that knife, you did unlawfully possess
that weapon with the purpose to use it
unlawfully against the persons of [H.S.],
[T.S.,] and/or [J.C.]; is that right?
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A. Yes, Your Honor.
The prosecutor also elicited the following admissions from
defendant on cross-examination:
Q. Sir, when you brought them into that
bathroom, you held them there for a while,
didn't you?
A. Approximately 20 minutes.
Q. For about 20 minutes. And during that
time you had a knife and you made threatening
comments so as to terrorize and scare them,
you made comments along the lines of cutting
out, I believe it was, [T.S.]'s liver. And
you said that in front of [H.S.] to scare her
so that she would pay the money that was owed,
you said you would do things of that nature,
correct?
A. Yes.
Q. And the purpose in doing that was to
terrorize them while they were in there,
correct?
A. Right.
. . . .
Q. And, sir, with regard to the knife,
again, you possessed that knife . . . for the
unlawful purpose of again terrorizing these
three individuals when you threatened them to
go into the bathroom, used it to get them into
the bathroom, and then went inside the
bathroom and made threatening comments
regarding that knife and how you would use it?
A. Right.
Q. And you understand that's an unlawful
purpose to use the knife, correct?
6 A-4154-15T2
A. Correct.
Prior to sentencing, defendant filed a motion to withdraw his
guilty plea, arguing the factual basis was insufficient to support
his conviction for second-degree kidnapping, as defined in
N.J.S.A. 2C:13-1(b). On April 18, 2016, following oral argument,
the judge denied defendant's motion and proceeded to sentencing.
After finding aggravating factors N.J.S.A. 2C:44-1(a)(3) and (9),
and no mitigating factors, the judge sentenced defendant to nine
years of imprisonment on count two, concurrent to five years of
imprisonment on count ten.
This appeal followed. Defendant now presents the following
points of argument:1
POINT I
THERE IS NO FACTUAL BASIS TO SUPPORT
DEFENDANT'S PLEA TO SECOND-DEGREE KIDNAPPING.
POINT II
THE JUDGE'S SENTENCING UTTERLY FAILED TO
COMPLY WITH THE REQUIREMENTS OF STATE V. CASE,
220 N.J. 49 (2013), RESULTING IN A
M[A]NIFESTLY EXCESSIVE SENTENCE THAT MUST BE
REVERSED.
1
Defendant filed a reply brief, challenging some of the State's
factual allegations. He also filed a pro se supplemental brief,
essentially reiterating Point I of his counsel's initial brief.
7 A-4154-15T2
II.
We first address defendant's guilty plea. Before accepting
a defendant's guilty plea, the court must determine "by inquiry
of the defendant and others, in the court's discretion, that there
is a factual basis for the plea." R. 3:9-2. "[O]ur law requires
that each element of the offense be addressed in the plea
colloquy." State v. Campfield, 213 N.J. 218, 231 (2013). The
judge "must be 'satisfied from the lips of the defendant that he
committed the acts which constitute the crime.'" State ex rel.
T.M., 166 N.J. 319, 327 (2001) (quoting State v. Barboza, 115 N.J.
415, 422 (1989)); see also State v. Tate, 220 N.J. 393, 405-06
(2015). "The trial court's task is to ensure that the defendant
has articulated a factual basis for each element of the offense
to which he pleads guilty." Campfield, supra, 213 N.J. at 232.
"[I]t is essential to elicit from the defendant a comprehensive
factual basis, addressing each element of a given offense in
substantial detail, when a defendant is pleading guilty to that
offense." Id. at 236; see also State v. Perez, 220 N.J. 423, 432-
33 (2015).
A guilty plea that is not supported by a sufficient factual
basis will be set aside on appeal:
The remedy for an inadequate factual basis is
an order vacating the guilty plea and
restoring both parties to their positions
prior to the trial court's acceptance of the
8 A-4154-15T2
plea. If an appellate court determines that
"a plea has been accepted without an adequate
factual basis, the plea, the judgment of
conviction, and the sentence must be vacated,
the dismissed charges reinstated, and
defendant allowed to re-plead or to proceed
to trial."
[Campfield, supra, 213 N.J. at 232 (quoting
Barboza, supra, 115 N.J. at 420).]
"The standard of review of a trial court's denial of a motion to
vacate a guilty plea for lack of an adequate factual basis is de
novo." Tate, supra, 220 N.J. at 403-04.
Pursuant to N.J.S.A. 2C:13-1(b)(2), an individual is guilty
of kidnapping if, with the purpose to terrorize the victim, he
"unlawfully removes another from his place of residence or
business, or a substantial distance from the vicinity where he is
found, or if he unlawfully confines another for a substantial
period." Defendant argues the factual record created at the plea
hearing was insufficient to establish he moved the victims a
"substantial distance," nor was it sufficient to establish that
he confined the victims for a "substantial period." Ibid.
We reject defendant's contention. To sustain a kidnapping
conviction, the State must prove either "substantial distance" or
"substantial confinement." See State v. Jackson, 211 N.J. 394,
414 (2012). Regarding "substantial distance," our Supreme Court
has held that this element does not simply turn on a "linear
measurement" of distance:
9 A-4154-15T2
We considered the "substantial distance"
element of N.J.S.A. 2C:13-1(b) in [State v.
Masino, 94 N.J. 436, 445 (1983)]. There, the
defendant, whose sexual advances to the victim
had been rebuffed, dragged the victim from her
car to a pond where he sexually assaulted and
beat her. Id. at 438. We noted that the
"substantial distance" requirement was
intended to preclude abusive prosecution, in
the form of "'kidnapping convictions based on
trivial changes of location having no bearing
on the evil at hand.'" Id. at 445 (quoting
Model Penal Code § 212.1 Comment (Tent. Draft
No. 11, 1960), at 16). We construed the
requirement of N.J.S.A. 2C:13-1(b) to be
distinct from a "linear measurement" of the
distance traveled by the victim during his or
her confinement. Ibid. Instead, we defined
a "substantial distance" as one that "isolates
the victim and exposes him or her to an
increased risk of harm." Ibid. In Masino,
although the "linear" distance between the
location where the defendant had abducted the
victim and the location where she was found
was not long, we held that the evidence
supported a jury finding that the defendant
moved the victim a "substantial distance."
Id. at 447. The Masino defendant isolated the
victim and by removing her clothes, "imped[ed]
her ability to follow him from the area and
call attention to her plight." Ibid.
[Jackson, supra, 211 N.J. at 415.]
In State v. Purnell, 394 N.J. Super. 28, 53 (App. Div. 2007),
we held the "substantial distance" requirement was satisfied where
the defendant removed the victim up an additional flight of stairs
to sexually assault her, thereby exposing the victim to an
increased risk of harm. Similarly, in State v. Matarama, 306 N.J.
Super. 6, 22 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998),
10 A-4154-15T2
we upheld the defendant's conviction for kidnapping where he
dragged the victim twenty-three feet into an alley, making it more
difficult for other pedestrians to observe the assault. Analyzing
these cases and others, our Supreme Court concluded, "[T]he
'substantial distance' element requires analysis of the additional
risk imposed on the victim, over and above the risk imposed by a
separate crime, and the isolation experienced by the victim because
of the defendant's actions." Jackson, supra, 211 N.J. at 416.
Applying these standards, we find the factual record from
defendant's plea colloquy established that he isolated the victims
and exposed them to additional risk of harm, thereby satisfying
the "substantial distance" requirement of N.J.S.A. 2C:13-1(b).
Defendant acknowledged he entered the residence and "pushed the
three of them into the bathroom with a knife." He further admitted
he entered the bathroom and threatened to use his knife on the
victims. The clear implication from these facts is that defendant
isolated his victims in a smaller enclosed room where they could
not seek help or escape, thus increasing their risk of harm.
Alternatively, we find the factual record established
defendant confined the victims for a "substantial period."
N.J.S.A. 2C:13-1(b). Addressing this element, our Supreme Court
held that
one is confined for a substantial period if
that confinement "is criminally significant in
11 A-4154-15T2
the sense of being more than merely incidental
to the underlying crime," and that
determination is made with reference not only
to the duration of the confinement, but also
to the "enhanced risk of harm resulting from
the [confinement] and isolation of the victim
[or others]. That enhanced risk must not be
trivial."
[Jackson, supra, 211 N.J. at 416 (alterations
in original) (quoting State v. La France, 117
N.J. 583, 594 (1990)).]
Here, defendant's actions were more than incidental to any
underlying offense; rather, kidnapping was the underlying offense.
As discussed, forcing the victims into the bathroom for a period
of twenty minutes enhanced their risk of harm. Therefore, because
we conclude defendant's plea colloquy established a factual basis
that he committed both elements of N.J.S.A. 2C:13-1(b), we discern
no basis to disturb the trial judge's decision, denying defendant's
motion to withdraw his guilty plea.
We next address defendant's challenges to his sentence.
Appellate courts are bound to review sentencing decisions for an
abuse of discretion. State v. Blackmon, 202 N.J. 283, 297 (2010).
We will affirm if the sentencing judge has identified and balanced
the aggravating and mitigating factors that are supported by
sufficient credible evidence in the record, State v. Cassady, 198
N.J. 165, 180-81 (2009), but we should remand if the judge fails
to find mitigating factors "that clearly were supported by the
record." State v. Bieniek, 200 N.J. 601, 608 (2010). Moreover,
12 A-4154-15T2
we will modify a sentence if it "shocks the judicial conscience."
State v. Roth, 95 N.J. 334, 364 (1984).
Defendant contends the record did not support finding
aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk of reoffending),
and (9) (need for deterrence). We disagree. The record shows
defendant has two prior criminal convictions, including one
conviction for theft of movable property, N.J.S.A. 2C:20-3(a). He
also violated probation, and while on "zero tolerance" probation,
committed the offenses at issue here. Defendant's criminal history
thus supports finding aggravating factors three and nine.
Defendant further argues the record supports finding
mitigating factors N.J.S.A. 2C:44-1(b)(4) (substantial grounds
excused or justified defendant's conduct), (8) (defendant's
conduct resulted from circumstances unlikely to reoccur), (9)
(character of defendant indicates he is unlikely to commit another
offense), and (10) (defendant is likely to respond to probationary
treatment). Defendant argues these mitigating factors apply
because he was intoxicated during the kidnapping, has
psychological problems, had an "abhorrent" upbringing, and
expressed remorse for his actions. Defendant also cites the
statements from his family and psychologist and the letters
submitted on his behalf, asserting his offense was out-of-
character. Last, he argues the judge should have found mitigating
13 A-4154-15T2
factor N.J.S.A. 2C:44-1(b)(12) (cooperation with law enforcement),
because he cooperated with police throughout the proceedings.
Trial courts are not required to consider intoxication as a
mitigating factor. See State v. Setzer, 268 N.J. Super. 553, 567
(App. Div. 1993), certif. denied, 135 N.J. 468 (1994).
Furthermore, although mental issues and a troubled family
background might support finding mitigating factors, defendant has
not shown a connection between these issues and the subject
offenses. See State v. Briggs, 349 N.J. Super. 496, 504 (App.
Div. 2002). His probation violations and criminal record also
weigh against finding the requested mitigating factors. Finally,
we have suggested that mitigating factor twelve only applies to
defendants who assist law enforcement by "identif[ing] other
perpetrators or assist[ing] in solving other crimes." State v.
Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196
N.J. 85 (2008).
Therefore, because these mitigating factors were not "amply
based in the record," State v. Case, 220 N.J. 49, 64 (2014)
(quoting State v. Dalziel, 182 N.J. 494, 504 (2005)), the judge
did not abuse his discretion by imposing the nine-year sentence.
Affirmed.
14 A-4154-15T2