                        NOT FOR PUBLICATION WITHOUT THE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




                                 2
                                                          A-1116-15T4
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.
                               3
                                                           A-1116-15T4
     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.
                                4
                                                          A-1116-15T4
         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).]



                                  5
                                                                 A-1116-15T4
    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
                                 6
                                                         A-1116-15T4
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
                                7
                                                            A-1116-15T4
(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.

                                8
                                                           A-1116-15T4
         [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
                               9
                                                        A-1116-15T4
         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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                                                           A-1116-15T4
