STATE OF NEW JERSEY VS. KEVIN M. KEOGH (11-06-0072, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-3473-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN M. KEOGH,
Defendant-Appellant.
_________________________
Argued November 8, 2018 – Decided August 22, 2019
Before Judges Fuentes, Vernoia and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 11-06-0072.
Peter T. Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Joshua D. Sanders, Assistant
Deputy Public Defender, of counsel and on the brief).
Valeria Dominguez, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jenny M. Hsu, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Kevin Keogh was the Superintendent of Special Services at the
Passaic Valley Sewerage Commission (PVSC) between January 2005 and April
10, 2007. On June 28, 2011, a State Grand Jury returned a seven-count
indictment against defendant, charging him with: (1) second degree conspiracy
to commit official misconduct, a pattern of official misconduct, and theft by
unlawful taking or disposition, in violation of N.J.S.A. 2C:5-2, N.J.S.A. 2C:30-
2, N.J.S.A. 2C:30-7(a), and N.J.S.A. 2C:20-3; (2) second degree official
misconduct with the purpose to obtain a benefit in excess of $200.00, in
violation of N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6; (3) second degree engaging
in a pattern of official misconduct, in violation of N.J.S.A. 2C:30-7(a) and
N.J.S.A. 2C:2-6; (4) third degree theft by unlawful taking or disposition, in
violation of N.J.S.A. 2C:20-3 and N.J.S.A. 2C:2-6; (5) second degree official
misconduct with the purpose to obtain a benefit in excess of $200.00, in
violation of N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6; (6) second degree pattern of
official misconduct, in violation of N.J.S.A. 2C:30-7(a) and N.J.S.A. 2C:2-6;
and (7) third degree theft by unlawful taking or disposition, in violation of
N.J.S.A. 2C:20-3 and 2C:2-6.
On June 21, 2012, defendant entered into a negotiated agreement with the
State through which he: (1) pled guilty to two counts of second degree official
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misconduct; (2) pled guilty to one count of second degree conspiracy; (3) agreed
to pay $7,500 restitution to the PVSC, waived his right to a restitution hearing
and stipulated to the amount of restitution; (4) agreed to fully cooperate with the
State in this case and other related matters; (5) forfeited any public position or
employment he may currently have pursuant to N.J.S.A. 2C:51-2(a); and (6) was
permanently barred from any future public employment in the State of New
Jersey.
In return, the State agreed to amend the indictment to include only the
misconduct that occurred prior to April 14, 2007, thereby allowing defendant to
avoid the mandatory minimum sentence provisions under N.J.S.A. 2C:43-6.5.1
The prosecutor also agreed to recommend that defendant be sentenced to
concurrent terms of imprisonment of five years, without any restrictions on his
eligibility for parole. Finally, the State agreed to dismiss all of the remaining
counts of the indictment and: (1) forego the right to prosecute defendant for any
other crimes previously disclosed or known to the State stemming from
defendant's employment with the PVSC; (2) not recommend the imposition of
1
Pursuant to N.J.S.A. 2C:43-6.5(a), a public employee who is convicted of a
second degree offense "that involves or touches such office or employment"
must be sentenced to a mandatory minimum term of five years imprisonment
without eligibility for parole. The statute took effect April 14, 2007. L. 2007,
c. 49, § 6.
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any criminal fine; and (3) not object to defendant's admission into the Intensive
Parole Supervision (ISP) program if he is deemed to be an eligible candidate.
At the plea hearing held on June 21, 2012, the court questioned defendant
directly to ensure he understood the terms of the plea agreement and had
sufficient time to discuss the matter with his attorney. Defendant responded to
the trial court's questions in a lucid and responsive fashion. He also provided a
factual basis for his plea of guilty. The sentencing hearing was originally
scheduled for September 27, 2012. However, because the plea agreement
required defendant to cooperate with the State in the prosecution of other
codefendants, the court agreed to postpone the sentencing hearing until the cases
against these individuals were resolved, either by plea or by trial.
On March 17, 2016, nearly four years after the plea hearing, defendant
filed a motion seeking to withdraw his guilty plea. When the motion came for
oral argument on June 9, 2016, the judge2 permitted defendant to argue the issues
pro se, notwithstanding that he was represented by counsel. After considering
extensive oral argument, the judge reserved decision until June 23, 2016, at
2
The judge who heard and decided defendant's motion to withdraw his guilty
plea was not the same judge who presided over the plea hearing on June 21,
2012.
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which time he delivered an oral opinion from the bench that provided the reasons
for denying defendant's motion.
The judge summarized for the record the procedural history of this case ,
which involved the prosecution of a number of defendants pursuant to a
multicount indictment. With respect to defendant, the judge reviewed the
transcript of the plea hearing, noted defendant's unequivocal admission of guilt,
and recognized his subsequent confirmation of his guilt during the interview
with the probation officer who prepared the March 6, 2014 updated Presentence
Investigation Report. See N.J.S.A. 2C:44-6; R. 3:21-2. The judge applied the
factors established by the Court in State v. Slater, 198 N.J. 145 (2009), and
denied defendant's motion to withdraw his guilty plea. The judge also rejected
defendant's claim "that he could no longer afford his attorneys" and noted he
"has been represented by a total of five attorneys during the pendency of this
matter."
The court sentenced defendant on July 26, 2016, to a term of five years
imprisonment, without any period of parole ineligibility. On November 4, 2016,
the State moved to vacate two official misconduct convictions to permit
defendant to qualify for ISP, as provided by the plea agreement. The court
granted the State's motion. Defendant thereafter moved for reconsideration of
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his sentence. The court heard argument on the motion on July 26, 2017. Once
again, defendant argued this motion pro se. At the start of oral argument, the
judge addressed defendant as follows:
THE COURT: . . . Mr. Keogh, you had filed a motion
to reconsider several months ago. It was my
understanding that it was to be held in abeyance,
because you were a - - pending the ISP consideration.
. . . [Y]ou were released on ISP after you re-pled to
conspiracy, to make you eligible for ISP. So, I'll hear
your motion, sir, but I - - quite honestly I think it's . . .
essentially moot. But, I'll hear you, sir.
DEFENDANT: I would concur with the [c]ourt. Judge.
I don’t - - expect the motion to be granted, so -- I - - I
would ask the - - [c]ourt and [the prosecutor] - - to
reconsider my sentence - - a - - on the basis of just basic
fairness and equity.
What I would ask today is that the - - the [c]ourt
possibly suspend my sentence and sentence me to
probation a - - pulling me off the ISP program.
The court denied defendant's motion. The judge noted that defendant
"started out" facing a five-year term without parole, and "ended up serving
approximately six months."
Against this record, defendant now appeals raising the following
arguments.
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POINT ONE
GIVEN THAT MR. KEOGH HAS ASSERTED A
COLORABLE CLAIM OF INNOCENCE THAT HIS
ACTUAL INNOCENCE ESTABLISHES THE
NATURE AND STRENGTH OF HIS REASONS FOR
WITHDRAWAL, THAT WITHDRAWAL WOULD
RESULT IN NO UNFAIR PREJUDICE TO THE
STATE, AND THAT THE PLEA AND SENTENCE
AS THEY STAND REPRESENT A MANIFEST
INJUSTICE, THE LOWER COURT ERRED BY
DENYING THE MOTION TO WITHDRAW THE
GUILTY PLEA.
A. Colorable Claim Of Innocence.
B. The Nature And Strength Of Defendant's
Reasons For Withdrawal.
C. Whether The Guilty Plea Was Entered
Pursuant To A Plea Agreement.
D. Whether Withdrawal Of Defendant's
Plea would Result In Unfair Prejudice.
E. Maintaining This Plea And Sentence
Under The Present Circumstances
Represents A Manifest Injustice.
Defendant's arguments lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
expressed by Judge Marilyn C. Clark in her oral opinion delivered from the
bench on July 26, 2017.
Affirmed.
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