NOT FOR PUBLICATION WITHOUT THE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-1116-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SILVIA BRODRICK,
Defendant-Appellant.
_______________________________________
Telephonically argued May 23, 2017 –
Decided September 20, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment
No. 15-02-0321.
Robert A. Honecker, Jr., argued the cause
for appellant (Ansell Grimm & Aaron, PC,
attorneys; Mr. Honecker, on the briefs).
Monica do Outeiro, Assistant Prosecutor,
argued the cause for respondent (Christopher
J. Gramiccioni, Monmouth County Prosecutor,
attorney; Ms. do Outeiro, of counsel and on
the brief).
PER CURIAM
Defendant Silvia Brodrick pled guilty to two counts of
second-degree fraudulent contracting, N.J.S.A. 2C: 21-34(b).
Consistent with the plea agreement, the court sentenced
defendant as a third-degree offender, and imposed a three-year
flat term of imprisonment on each count, to run concurrently.
Defendant now appeals her convictions and sentence. We affirm.
I
N.J.S.A. 2C:21-34(b) states in relevant part:
A person commits a crime if the person knowingly makes
a material representation that is false in connection
with the negotiation, award or performance of a
government contract. If the contract amount is for
$25,000.00 or above, the offender is guilty of a crime
of the second degree. . . .
During the plea colloquy, defendant admitted the following.
From June 2010 through July 2011, defendant operated a day
care facility in Asbury Park. In 2010, on behalf of the day
care, defendant entered into a year-long contract with the
Asbury Park Board of Education (Board) to provide it with
services. The contract required the day care identify its
employees for the Board.
Defendant informed the Board A.A. was employed as a
custodian; however, L.S. in fact rendered the services A.A. was
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hired to provide.1 Advised by defendant A.A. was a day care
employee, the Board conducted a background check on him, who was
"cleared." Not knowing he was in fact working at the day care,
the Board did not conduct a background check on L.S. During the
plea colloquy, defendant admitted the failure of a staff member
to undergo a background check was a breach of the day care's
contract with the Board.
After the contract expired, in 2011 defendant entered into
another year-long contract with the Board. She admitted she
again made "that same misrepresentation" in the second contract;
specifically, even though L.S. was the custodian for the day
care, she informed the Board the custodian was A.A. She also
noted when the contracts were being implemented, she received
checks from the Board made payable to A.A.; however, she
deposited those checks and used the proceeds to pay L.S.
Defendant admitted she was guilty of making a material
misrepresentation to the Board about the custodian's identity.
Finally, she acknowledged the contract amount for each contract
exceeded $25,000.
1
We employ the use of initials to protect the privacy of these
two individuals.
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In addition to pleading guilty to two counts of violating
N.J.S.A. 2C:21-34(b)2, defendant agreed to enter into a consent
order prohibiting her or any business in which she is a
principal to submit a bid to or conduct any business with the
State or any of its political subdivisions for a term of twenty
years. In exchange, the State consented to recommend to the
court that it impose a prison term appropriate for a third-
degree crime, and that the term of imprisonment be four years on
each count.
II
On appeal, defendant asserts the following for our
consideration:
POINT I – N.J.S.A. 2C:21-34(b) IS UNDULY
OVERBROAD, FACIALLY VAGUE, AND VAGUE AS
APPLIED TO THE DEFENDANT. THEREFORE, THE
STATUTE MUST BE DEEMED UNCONSTITUTIONAL AND
THE CONVICTION AND SENTENCE OF THE DEFENDANT
MUST BE VACATED.
A. N.J.S.A. 2C:21-34(b) is
overbroad.
B. N.J.S.A. 2C:21-34(b) is
facially vague.
C. N.J.S.A. 2C:21-34(b) is vague
as applied.
POINT II – THE LOWER COURT COMMITTED PLAIN
ERROR IN ACCEPTING THE DEFENDANT'S PLEA
2
Each count pertained to one of the two contracts.
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BASED UPON AN INSUFFICIENT FACTUAL BASIS AS
REQUIRED PURSUANT TO RULE 3:9-2.
POINT III – THE LOWER COURT WAS CLEARLY
MISTAKEN IN ITS EXERCISE OF DISCRETION AT
THE SENTENCING PROCEEDINGS BELOW.
POINT IV – THE PRINCIPLES OF FUNDAMENTAL
FAIRNESS PERMIT VACATING THE CONVICTIONS IN
THIS MATTER OR, ALTERNATIVELY, A REMAND FOR
THE IMPOSITION OF A NON-CUSTODIAL SENTENCE.
We do not address the arguments raised in Point I. These
contentions could have been but were not raised before the trial
court, and defendant did not reserve the right to appeal these
issues at the time of her plea. See R. 3:9-3(f). As we
observed in State v. Marolda, 394 N.J. Super. 430 (App. Div.),
certif. denied, 192 N.J. 482 (2007):
A plea of guilty amounts to a waiver of all
issues, including constitutional claims,
that were or could have been raised in prior
proceedings. Tollett v. Henderson, 411 U.S.
258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d
235, 243 (1973) (explaining that "a guilty
plea represents a break in the chain of
events which has preceded" and holding that
a defendant who "has solemnly admitted in
open court that he is in fact guilty of the
offense . . . may not thereafter raise
independent claims relating to the
deprivation of constitutional rights that
occurred" before the plea was entered).
[State v. Marolda, 394 N.J. Super. 430, 435
(App. Div.), certif. denied, 192 N.J. 482
(2007).]
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Generally, Rule 3:9-3(f) "is directed to pretrial issues
such as the admissibility of statements, pretrial
identifications, and sound recordings, [but this rule] extends
to purely legal questions as well." State v. Vasquez, 129 N.J.
189, 194 (1992); see also Pressler & Verniero, Current N.J.
Court Rules, comment 7 on R. 3:9-3 (2017). There are exceptions
to the rule issues not raised before or reserved at the time of
a plea are waived, see R. 3:5-7(d), but none applies here.
Accordingly, we decline to consider the arguments in this point.
Defendant next contends there was no factual basis to her
plea and, thus, the trial court erred in accepting it. We
disagree.
On behalf of the day care, defendant entered into two,
year-long contracts with the Board to provide it with services.
The contract required the day care identify its employees.
Defendant knowingly misrepresented the custodian's true identity
twice, thwarting the Board's ability to conduct a criminal
background check on the employee who in fact performed services
for the day care.
Defendant admitted she made a material misrepresentation to
the Board, and there is no question such misrepresentation was
made in connection with the award or performance of a government
contract. As for the grading of these two offenses, defendant
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acknowledged the amount of each contract exceeded $25,000. We
are satisfied there was an adequate factual basis for
defendant's plea, as required by Rule 3:9-2.
Defendant also argues portions of the recording of the plea
proceeding were inaudible, and thus a remand is necessary "to
ensure that the factual basis in this matter was sufficient."
However, the trial court heard defendant's application to settle
the record of the plea proceeding. The only portion defendant
wanted settled was defendant's answer to one question. The
court ultimately agreed defendant's recollection of the answer
she provided was accurate, and entered an order on May 13, 2016,
correcting the record, accordingly. When we reviewed the
record, we read the answer to the subject question as corrected.
Defendant next claims there was no support for imposing a
term of imprisonment because the mitigating factors outweighed
the one aggravating factor found by the court. Specifically,
the court found aggravating factor nine, N.J.S.A. 2C:44-
1(a)(9)(the need to deter defendant and others from violating
the law). The court also found the following mitigating
factors, see N.J.S.A. 2C:44-1(b): one (defendant's conduct did
not cause serious harm); two (defendant did not contemplate her
conduct would cause or threaten serious harm); six (defendant
compensated or was willing to compensate the victim); seven
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(defendant has no prior criminal record); eight (defendant's
conduct was the result of circumstances unlikely to recur, in
light of the terms of the consent order); and ten (defendant is
particularly likely to respond affirmatively to probationary
treatment).
Although the mitigating factors outweighed the aggravating
ones, as the court noted, defendant was convicted of second-
degree offenses. Although the State recommended she be
sentenced as though the offenses were third-degree ones,
nevertheless, they remained second-degree offenses.
There is a presumption of imprisonment for second-degree
offenses, even if the mitigating factors outweigh the
aggravating ones, unless "having regard to the character and
condition of the defendant, it is of the opinion that [her]
imprisonment would be a serious injustice which overrides the
need to deter such conduct by others." N.J.S.A. 2C:44-1(d). As
stated by our Supreme Court in State v. Jabbour, 118 N.J. 1
(1990):
[T]he [Criminal] Code establishes a
presumption of imprisonment applicable to
first-and second-degree crimes unless,
"having regard to the character and
condition of the defendant, * * *
imprisonment would be a serious injustice
which overrides the need to deter such
conduct by others." N.J.S.A. 2C:44-1d.
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[However,] [t]he "serious injustice"
exception to the presumption of imprisonment
applies only in "'truly extraordinary and
unanticipated circumstances.'" Roth, supra,
95 N.J. at 358. Thus, the presumption is
not overcome merely because the defendant is
a first offender or because the mitigating
factors preponderate over the aggravating
factors. Id. at 368; State v. Kelly, 97 N.J.
178, 219-20 (1984); State v. Gonzalez, 223
N.J. Super. 377, 393 (App. Div.), certif.
denied, 111 N.J. 589 (1988). Nor is the
presumption overcome merely because the
mitigating factors so outweigh the
aggravating factors as to justify
downgrading the offense. N.J.S.A. 2C:44-
1f(2). In that setting, a trial court may
reduce a prison term, but it still must
imprison the defendant. Jarbath, supra, 114
N.J. at 413; State v. Gerstofer, 191 N.J.
Super. 542, 546 (App. Div.), certif. denied,
96 N.J. 310 (1984). To avoid the
presumption of imprisonment applicable to
first- or second-degree offenses, the trial
court must find that imprisonment would be a
serious injustice that overrides the need to
deter others. Rarely will general
deterrence not be furthered by imprisonment
for serious crimes. Jarbath, supra, 114
N.J. at 408. To forestall the deterrent
effect of incarceration, the defendant must
be idiosyncratic. Ibid.
[Id. at 6-7.]
Citing Jabbour and decisional authority applying the above
principles, here, the trial court did not find defendant's
imprisonment met the "serious injustice" exception to the
presumption of imprisonment. The court noted:
I find that the mitigating factors outweigh
the aggravating factors. I'm not satisfied
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that the standards of Jabbour . . . apply to
the point where . . . this sentence will not
serve any deterrent purpose.
The legislature made this magnitude of a
contract a second-degree offense and carries
with it a presumption, and unless the legal
standards are met to overcome [that]
presumption, a prison sentence is warranted.
Accordingly, . . . I hereby sentence the
defendant to [the] New Jersey State prison
for a period of three years.
We are satisfied the trial court's sentencing decision is
supported by the facts and law, making it unnecessary we
intervene and to either adjust or remand this matter for
resentencing.
We have examined defendant's remaining arguments and
conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(2).
Affirmed.
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