                               NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0724-17T1
                                                                        A-4002-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

REHAN ZUBERI, a/k/a RAY Z
and RAY ZUBERI,

          Defendant-Appellant.


                    Argued September 12, 2019 – Decided November 8, 2019

                    Before Judges Alvarez, Nugent and Suter.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Morris County, Indictment No. 15-05-0453
                    and Bergen County, Indictment No. 13-08-0140.

                    Adam W. Toraya argued the cause for appellant.

                    Sarah D. Brigham, Deputy Attorney General, argued
                    the cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Sarah D. Brigham, of counsel and on
                    the briefs).

PER CURIAM
      Defendant Rehan Zuberi appeals two judgments of conviction (JOC), one

entered on September 6, 2017, in Morris County and the other on January 26,

2018, in Bergen County. Defendant entered guilty pleas and was sentenced

accordingly. We consolidate the matters for decision and affirm.

      Defendant's prior court history consists of a 1995 arrest for theft of

services, N.J.S.A. 2C:20-8(a), criminal attempt, N.J.S.A. 2C:5-1, and a charge

described in the presentence report as "medical assistance benefits, N.J.S.A.

30:4D-17."   In 1997, defendant was convicted of second-degree theft by

deception, N.J.S.A. 2C:20-4, and second-degree money laundering, N.J.S.A.

2C:21-25. Those convictions related to Medicaid fraud, leading to defendant's

lifetime ban from owning or operating medical facilities.

      Defendant's wrongdoing in Morris County arises partially from that ban.

He concealed his ownership and management control of various medical

imaging centers behind others, including his wife, family members, and friends.

Defendant's criminal enterprise, and multiple medical imaging centers earned

millions of dollars in illegal profits.       Defendant also engaged in medical

kickbacks, bribing dozens of doctors in exchange for patient referrals to his

imaging centers. In Bergen County, defendant was paid on a false insurance

claim for magnetic resonance imaging equipment.


                                                                         A-0724-17T1
                                          2
      Defendant, along with twenty-two others, was originally charged in

Morris County with multiple offenses: 1       racketeering, N.J.S.A. 2C:41-2(a)

(count one); first-degree financial facilitation, N.J.S.A. 2C:21-25(c) (count

two); commercial bribery, N.J.S.A. 2C:21-10(c) (count three); deceptive

business practices by making a false or misleading written statement, N.J.S.A.

2C:21-7(h) (count four); violating a state medical assistance program, N.J.S.A.

30:4D-17 (count five); misconduct by a corporate official for operating a

corporation to further and promote a criminal objective, N.J.S.A. 2C:21-9(c)

(count six); failure to file a state tax return with intent to defraud the State,

N.J.S.A. 54:52-8 (count seven); and failure to pay income taxes, N.J.S.A. 54:52-

9 (count eight).

      In Bergen County, defendant was indicted for second-degree conspiracy

to commit forgery, N.J.S.A. 2C:5-2 and 2C:21-1 (count one); second-degree

insurance fraud, N.J.S.A. 2C:2-6 and 2C:21-4.6(b) (counts two and six); second-

degree theft by deception, N.J.S.A. 2C:2-6 and 2C:20-4 (counts three and

seven); and fourth-degree forgery, N.J.S.A. 2C:2-6 and 2C:21-1(a)(2) (counts

four, five, eight, and nine).



1
  The degree of offenses is not specified in the record but is not relevant to our
decision. They provide context for what followed.
                                                                           A-0724-17T1
                                        3
      On May 4, 2015, in Morris County, the State and defendant agreed

defendant would plead guilty by way of accusation to first-degree financial

facilitation, and second-degree conspiracy to commit financial bribery.        The

recommended sentence was no more than ten years in prison, with four years of

parole ineligibility on the first-degree offense.

      The agreement further provided that for every five individuals prosecuted

based on defendant's cooperation, his term of imprisonment would be reduced

by six months, and his parole ineligibility term by four months, to a maximum

possible reduction to eight years with thirty-two months of parole ineligibility.

For the second-degree conspiracy, a concurrent ten-year term would be imposed,

subject to the same conditions.

      Thus the aggregate term, if defendant did not cooperate, would be ten

years subject to four years of parole ineligibility.     The minimum reduced

sentence would be eight years with thirty-two months of parole ineligibility.

      During the plea colloquy, defendant acknowledged his knowing,

voluntary, and intelligent waiver of his right to trial. The colloquy included the

following:

                   Q     Did you commit these offenses to which
             you are pleading guilty?

             A     Yes, I did.

                                                                           A-0724-17T1
                                         4
      We reproduce the direct examination of defense counsel, as interrupted

where indicated by the judge and the prosecutor:

                  Q    [Defendant], between approximately 2006
            and 2015 did you own a management company?

            A     2007 and '14, yes.

                 Q   And what          was   the   name   of   that
            management company?

            A     Diagnostic Imaging Affiliates.

                 Q     And did that company manage and operate
            medical imaging centers?

            A     Yes, it did.

                 Q     And what were the name of some of those
            medical imaging centers that it managed and operated?

            A    American Imaging and Medical and Molecular
            Imaging.

                 Q     Okay. Between approximately 2008 and
            2014 did you engage in financial transactions in
            connection with Diagnostic Imaging Affiliates?

            A     Yes, I did.

                  Q    And were these transactions involving
            amounts of money which you believed to be derived
            from criminal activity?

            A     Yes.



                                                                      A-0724-17T1
                                       5
      Q      And was the total amount of money
involved in those financial transactions over $500,000?

A     Yes, it was.

      Q      And were you attempting to conceal or
disguise the source of those funds in the course of those
transactions?

A     Yes.

      Q     And you believed that that money was
obtained from criminal activity. Is that correct?

A     That's correct.

      Q     And was the criminal activity healthcare
claims fraud?

A     Yes.

       Q     The healthcare claims fraud was based on
the altering of the locations where MRI services were
provided. Is that correct?

A     That's correct.

      Q     And when you alter the location of an MRI,
you're changing the actual reimbursement rate. Is that
correct?

A     That's correct.

       Q     And when you change the reimbursement
rate, you're actually receiving more money than you
would normally be entitled to. Is that correct?

A     That's correct.

                                                            A-0724-17T1
                           6
      Q     Specifically with respect to changing the
locations, where were the actual services provided?

A      The services were provided in Hackensack and
billed out of Englewood, New Jersey.

     Q      And as a result you obtained more money?

A    That's correct.

      Q     And you engaged in financial transactions
with that money.

A    Yes.

     Q      Is that correct?

A    Yes.

       [DEFENSE COUNSEL]:          I      think   that
satisfies Count 1, Your Honor.

      [THE STATE]: As to the dollar threshold I
don't know that it does.

      THE COURT:         The     amount      of   the
transactions.

[BY DEFENSE COUNSEL]:

      Q      The amount of the transactions were in
excess[] of $500,000. Is that correct?

A    That's correct.

     [THE STATE]:        The State's satisfied, Your
Honor.


                                                         A-0724-17T1
                           7
[BY DEFENSE COUNSEL]:

      Q     Now, [defendant], while operating and
managing these centers, did you also conspire with
other individuals in the making of payments to
physicians?

A     Yes.

     Q      And these other individuals with which you
conspired, were they Humara Paracha?

A     Yes.

      Q      And also Faisal Paracha?

A     Yes.

      Q      And also Jose Lopez?

A     Yes.

      Q      And also Felix Clarin?

A     (No verbal response given)

      Q      No.

A     No.

      Q      Okay. With respect to the . . . conspiracy,
was it the object of that conspiracy that one or more of
you would pay doctors?

A     Yes.

      Q      And what was the purpose of paying the
doctors?

                                                           A-0724-17T1
                           8
A     To receive referrals back to the centers.

      Q      And how much did you pay doctors?

A     Anywhere between $50 and $150 per --

      Q      And was that per scan?

A     -- per study. Per study, yes.

      Q     And as a result of paying these physicians,
did you receive a benefit through insurance billing?

A     Yes.

      Q      And was that benefit, the monetary value
in excess of $75,000?

A     Yes, it was.

      Q      Did you personally make money payments
to doctors, as well?

A     Yes, I did.

     Q       And was of [sic] those doctors Dr. Simon
Santos?

A     Yes.

     Q     And was that during the period of
approximately May 28, 2010 through June 16, 2014?

A     Yes.

     [DEFENSE COUNSEL]:               I   believe   that's
adequate, Your Honor.


                                                             A-0724-17T1
                           9
            THE COURT:         State.

           [THE STATE]: Was the -- not whether the
      compensation but was the sum of the kickbacks or
      payments to the doctors greater than 75,000?

            THE DEFENDANT:              I'm sorry?

      [BY DEFENSE COUNSEL]:

            Q     Was the total amount of money that you, as
      part of the conspiracy, paid the doctors in excess of
      $75,000?

      A     Yes. Yes, it was in excess. Yes.

Additionally, the judge and defendant engaged in the following exchange:

             Q     Do you also understand that the Court
      could, in its discretion, impose a minimum time in
      confinement to be served before you become eligible
      for parole, which could be as long as one-half of the
      total custodial sentence imposed?

      A     Yes.

            Q      And do you also understand that you're
      pleading guilty to a charge that requires a mandatory
      period of parole ineligibility or a mandatory extended
      term? That minimum period of parole ineligibility is
      one year and eight months and the maximum period of
      parole ineligibility is four years and this period cannot
      be reduced by good time, work time, or minimum
      custody credits. Do you understand that?

      A     Yes.



                                                                  A-0724-17T1
                                10
      When defendant was sentenced, over two years later on September 6,

2017, he had testified in two trials, and provided information that enabled the

State to prosecute eighteen others. He had also been extensively interviewed by

investigators, and made inculpatory statements under oath regarding his own

involvement in the medical insurance frauds. Defendant was thus sentenced to

the post-cooperation minimum term — eight years, with thirty-two months of

parole ineligibility on the first-degree offense, concurrent to six years on the

second-degree crime.     The JOC required defendant, along with two co-

defendants, to pay $1,000,000 in restitution to the Treasurer of the State of New

Jersey.

      As per the May 11, 2015 Bergen County plea form, defendant would plead

to the first count of the indictment, which the judge sua sponte amended from

second-degree to third-degree conspiracy to commit theft by deception. For that

offense, defendant would serve five years concurrent to the Morris County

sentence.

      Defendant filed two motions for leave to withdraw his guilty plea in

Morris County. By way of context, defendant's financial records had been

seized by the State, but were ordered to be returned or made available to him for

copying first on October 1, 2014, and again on March 13, 2015, in various civil


                                                                          A-0724-17T1
                                      11
suits filed against him by aggrieved insurance companies. Six days prior to the

entry of his guilty plea in Morris County, defendant told a prosecutor's

investigator that the amount he owed Aetna due to his criminal conduct was

based on tax insurance numbers (TINs). Furthermore, in civil lawsuits of which

the court took judicial notice in the first motion to withdraw a guilty plea,

defendant admitted that Allstate paid his facilities $1,783,628.62 in claims, and

that Encompass, an Allstate affiliate, paid his facilities $359,496.77. Defendant

also told the investigator that he knew Aetna sought the return of overages only

for improper TINs reimbursals of up to $400,000.

      The judge noted, when defendant first moved to withdraw his guilty plea

alleging the amount owed to Aetna did not satisfy the first-degree threshold of

$500,000, that he provided unnumbered printouts in support of his application

spanning from early 2012 to April 2014. The accusation, however, alleged

conduct beginning on May 28, 2010, and ending on June 6, 2014. The judge did

not consider the printouts to be dispositive.

      Defendant's first motion for leave to withdraw his guilty plea was heard

on June 14, 2017. His contention was that once he reviewed his records, it

became clear that Aetna was demanding only $413,136.20, not the $500,000




                                                                          A-0724-17T1
                                       12
necessary for a first-degree facilitation offense, and hence the factual basis for

the entry of the plea was inadequate, and the plea should be vacated.

        The judge denied the motion in part because defendant had the Aetna

records at least two months before he entered the guilty plea, and more than two

years before the motion was filed. Furthermore, the application was made

approximately a month after defendant was denied admission to drug court. The

judge had read the interview in which defendant acknowledged, before the entry

of the plea, that reimbursement for Aetna was less than $500,000.             After

reviewing the materials provided to him by both sides, the judge concluded that

the factual basis was adequate and that defendant could not credibly claim he

had been unaware of the amounts Aetna sought to recoup. When interviewed

on at least one occasion, defendant suggested to an investigator that he may have

misused TINs when submitting claims to insurers other than Aetna. The judge

therefore also presumed that the wrongful claims to the other companies may

have encompassed misuse of TINs.

        Turning to the Slater2 factors, the judge not only referenced the rejection

from drug court as a significant motivator for defendant's motion to withdraw



2
    State v. Slater, 198 N.J. 145 (2009).


                                                                            A-0724-17T1
                                        13
from his guilty plea, but also the complete absence of any colorable claim of

innocence. The timing of the motion was suspect because defendant's wife,

whom the State recommended be placed on probation pursuant to defendant's

plea agreement, had already been sentenced. The judge observed that the State

would suffer substantial prejudice because of the many years of false claims that

would have to be reconstructed years after the events. All the co-defendants'

matters were disposed of by the time the motion was filed. Thus, the judge

opined the Slater standard was not met and denied the motion.

      With the assistance of a new attorney, defendant filed a second motion in

Morris County to withdraw his guilty plea. Defendant argued that his prior

attorney did not advise him that a second-degree offense did not include

mandatory parole ineligibility, an issue not raised on the first motion. During

the second motion, defendant relied principally on the earlier claim that the

amount in controversy was less than $500,000, and thus no adequate factual

basis existed for the plea.

      In denying the second motion, the judge reiterated that defendant had the

relevant records months before the 2015 plea agreement.          Defendant, he

concluded, knew or should have known of the discrepancy, if one existed. After




                                                                          A-0724-17T1
                                      14
that second motion was denied, 3 the judge scheduled defendant's sentence.

During the sentence proceeding, the judge noted that GEICO sought $868,000

in restitution, and that Allstate and its affiliates in combination sought millions.

      In the Bergen County motion to withdraw, defense counsel contended that

defendant did not establish an adequate factual basis for that crime either.

Defendant acknowledged during his plea that he operated and managed a

radiology center in Clifton, which was a facility that used equipment including

an MRI covered by insurance. In reviewing the transcript, the court noted that

although defendant acknowledged deception in submitting a claim without any

actual entitlement, he did not specify the dollar amount. The judge concluded

that even though the factual basis was inadequate to establish a second-degree

crime, the equipment at issue, and thus the dollar value of the fraudulent claim,

placed the crime in at least the third-degree range. As a result, he decided that,

pursuant to State v. Tate, 220 N.J. 393, 403-04 (2015), there was no proof of the

$75,000 loss but there was "at least a third-degree offense." Accordingly, the

judge sentenced defendant, albeit to the negotiated term of years, to an amended

third-degree offense, not the second-degree.



3
  Defendant was not present at the motions to withdraw a guilty plea, having
been taken to the hospital emergency room shortly before argument.
                                                                             A-0724-17T1
                                        15
      Now on appeal of the Morris County plea, defendant raises the following

points:

           POINT ONE
           THE COURT ERRED IN DENYING DEFENDANT'S
           PRE-SENTENCE MOTION TO WITHDRAW HIS
           GUILTY PLEA.

           A.  IN CONSIDERING THE DEFENDANT'S
           COLORABLE CLAIM OF INNOCENCE, THE
           COURT ERRED IN FAILING TO FIND THAT THE
           EVIDENCE PROVIDED BY THE DEFENDANT
           PROVES THAT HE COULD NOT HAVE
           COMMITTED A FIRST-DEGREE CRIME.

           B.  IN CONSIDERING THE DEFENDANT'S
           COLORABLE CLAIM OF INNOCENCE, THE
           COURT ERRED IN FAILING TO FIND THAT THE
           FACTUAL   BASIS    PROVIDED    BY    THE
           DEFENDANT WAS SUFFICIENT IN LIGHT OF THE
           EVIDENCE OF THE CLAIMS FROM AETNA.

           C.   IN CONSIDERING SLATER FACTOR TWO,
           THE REASON FOR THE DEFENDANT'S FILING OF
           HIS MOTION TO WITHDRAW, AND SLATER
           FACTOR    FOUR,   THE   PREJUDICE     OR
           ADVANTAGE TO THE PARTIES, THE COURT
           ERRED IN FAILING TO APPLY THE LESS
           STRINGENT STANDARD WHICH APPLIES TO
           ALL MOTIONS TO WITHDRAW A PLEA BEFORE
           SENTENCING.

           D.  THE COURT ERRED IN FAILING TO
           CONDUCT AN EVIDENTIARY HEARING WHERE
           THE DEFENDANT COULD HAVE ESTABLISHED
           THAT THE CLAIMS BY AETNA COULD NOT


                                                                      A-0724-17T1
                                    16
      HAVE AMOUNTED             TO    A    FIRST-DEGREE
      OFFENSE.

      E.   THE COURT ERRED IN FAILING TO
      ADDRESS THE MAY 18, 2017 LETTER FROM
      AETNA WHICH NOW STATES THAT . . . BOTH
      FACILITIES WERE, IN FACT, LOCATED IN AN
      OUT OF NETWORK AREA AND THEREFORE USE
      OF THE WRONG TIN WOULD NOT AFFECT THE
      BILLING AMOUNT.

      POINT TWO
      THE PLEA AGREEMENT MUST BE VACATED
      BECAUSE THE STATE HAS REFUSED TO HONOR
      THE AGREEMENT.

      A.   THE PLEA MUST BE VACATED BECAUSE
      THE STATE HAD REFUSED TO WRITE AN
      IMMIGRATION LETTER AS REQUIRED UNDER
      THE PLEA AGREEMENT.

      B.   THE PLEA MUST BE VACATED BECAUSE
      THE STATE HAD REFUSED TO WRITE A PAROLE
      LETTER AS REQUIRED UNDER THE PLEA
      AGREEMENT.

      POINT THREE
      THE SENTENCE IMPOSED IS MANIFESTLY
      EXCESSIVE.

On appeal of the Bergen County matter, defendant raises these points:

      POINT ONE
      THE PLEA AGREEMENT MUST BE VACATED
      BECAUSE THE STATE HAS REFUSED TO HONOR
      THE AGREEMENT.



                                                                 A-0724-17T1
                               17
            POINT TWO
            THE SENTENCE IMPOSED IS MANIFESTLY
            EXCESSIVE.

      Appellate courts review de novo a trial court's denial of a defendant's

motion to withdraw his guilty plea based on an inadequate factual basis. Tate,

220 N.J. at 403-04 (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 336,

378 (1995)). Like the trial court, we only assess whether "the factual admissions

during a plea colloquy satisfy the elements of an offense." Id. at 404.

                                           I.

                                           A.

      We address defendant's points on appeal as to the Morris County

agreement simultaneously. Defendant contends that once he realized he had

entered a guilty plea to a lesser offense, he should have been allowed to

withdraw.

      The accusation alleges defendant:

            did, with the intent to facilitate or promote criminal
            activity, direct, organize, finance, plan, manage,
            supervise, or control the transportation of or
            transactions in property known or which a reasonable
            person would believe to be derived from criminal
            activity in an amount greater than $500,000.00; that is,
            the said REHAN ZUBERI did direct, organize, finance,
            plan, manage, supervise, or control the transaction of
            more than $500,000.00 that was known or which a
            reasonable person would believe to be derived from

                                                                          A-0724-17T1
                                      18
            criminal activity, particularly Health Care Claims
            Fraud by altering the TIN of the location where MRI
            services were provided to increase reimbursements, and
            the said REHAN ZUBERI engaged in transactions that
            he knew were designed, in whole or in part, to conceal
            or disguise the nature, location, source, ownership or
            control of the property derived from criminal activity
            or to avoid a transaction reporting requirement, and the
            said financial transactions were designed to facilitate or
            promote the criminal activity of Health Care Claims
            Fraud, contrary to the provisions of N.J.S.A. 2C:21-
            4.3c and against the peace of this State, the government,
            and dignity of the same.

      We do not disagree that defendant's factual basis could have included

more detail. Neither the judge nor the attorneys asked defendant open-ended

questions that elicited the full picture of the fraud in defendant's own words as

charged in the accusation. The accusation states that defendant engaged in

various behaviors constituting wholesale financial facilitation of healthcare

claims fraud. But by adhering to leading questions narrowly focused on TINs,

the groundwork was laid for defendant's contention that the factual basis was

inadequate. When establishing a factual basis, defendants are too often asked

the narrowest of leading questions requiring only a yes or no response, which

sets the stage for later motion practice.

      But this is an unusual case. This defendant knew the exact proofs the

State had against him — it was, after all, documentation taken from his


                                                                          A-0724-17T1
                                        19
businesses. Defendant would learn nothing new from discovery, unlike other

prosecutions. Defendant had the specific records he referred to in his plea

allocution in his possession days, if not months or years, before the entry of his

guilty plea. Defendant, when interviewed by an investigator before his guilty

plea, said that the Aetna claims could be between $200,000 and $400,000. That

range is less than a first-degree crime, and defendant knew it.

      Defendant was intimately familiar with the State's allegations, had the

proofs in his possession, and readily confessed before the plea. Having the

information before the entry of the plea means defendant clearly, indisputably

knew or should have known the amounts in question.

      Putting together side-by-side the judge's plea colloquy with the language

of the accusation, however, it is clear defendant did plead guilty to the offenses

charged in the accusation, which overall exceed $500,000. Early in the plea

colloquy, the judge asked defendant simply if he committed the offenses to

which he was pleading guilty. Defendant's response was "Yes, I did." The

accusation does not merely allege a fraud by use of TINs — it alleges the frauds

perpetrated by engaging in transactions defendant knew were "designed, in

whole or in part, to conceal or disguise the nature, location, source, ownership

or control of the property derived from criminal activity or to avoid a transaction


                                                                            A-0724-17T1
                                       20
reporting requirement, and the said financial transactions were designed to

facilitate or promote the criminal activity of Health Care Claims Fraud, contrary

to the provisions of N.J.S.A. 2C:21-4.3c . . . ." The judge's question and

defendant's response, when read in tandem with the accusation, demonstrates

that defendant acknowledged more than just the TINs claims submitted to Aetna.

He acknowledged committing wrongful transactions other than just abuse of

TINs. His own attorney — while making specific reference to the TINs — also

asked him, and he acknowledged, committing healthcare fraud in amounts

exceeding $500,000. Even if we were to entertain for the sake of argument that

the use of TINs was the limited basis for the entry of the guilty plea, the fact

Aetna separately sought to recover less than $500,000 from defendant does not

prove he defrauded the insurer by that amount.

      To allow defendant to withdraw from the plea based on a lack of adequate

factual basis at this stage would allow him to manipulate the system once he had

received all the benefits of his plea agreement – and the State would be left in a

worse position than before the plea was entered. Defendant raised no defenses

during his plea allocution. This is a sophisticated individual who is not an

innocent person being punished for a crime he did not commit. See Tate, 220

N.J. at 405. The strained reading of the plea colloquy he now urges is illogical.


                                                                           A-0724-17T1
                                       21
When he entered his guilty plea, defendant did not distance himself from the

"distasteful reality" of a multi-million dollar medical insurance fraud scheme he

initiated not long after being released from prison for similar conduct. See ibid.

      Since we reject defendant's claim that no adequate factual basis was

proffered, we next consider whether withdrawal from the guilty plea is

warranted pursuant to State v. Slater, 198 N.J. at 145. Like the Law Division

judge, we conclude defendant has not met that four-prong test. See id. at 157-

58.

      In denying defendant's motion, the judge thoroughly analyzed those four

prongs. They are "(1) whether the defendant has asserted a colorable claim of

innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3)

the existence of a plea bargain; and (4) whether withdrawal [will] result in unfair

prejudice to the State or unfair advantage to the accused." Ibid.

      We review appeals from Slater motions for abuse of discretion. State v.

Munroe, 210 N.J. 429, 448 (2012). Guilty pleas are vacated at the trial court's

discretion. Slater, 198 N.J. at 156 (citing State v. Simon, 161 N.J. 416, 444

(1999)). The motion was made pre-sentence, meaning it should be vacated if

the "interest of justice would not be served by effectuating the agreement." R.

3:9-3(e); see Slater, 198 N.J. at 158.


                                                                            A-0724-17T1
                                         22
      No abuse of discretion was committed by the court here. Defendant failed

to meet the first prong of the Slater test. He does not claim innocence — he

merely disputes the dollar amount of his fraud as to one insurer. As to the second

factor, the judge made appropriate "qualitative assessments about the nature of

[] defendant's reasons for moving to withdraw his plea and the strength of his

case and . . . ma[de] credibility determinations . . . ." Tate, 220 N.J. at 404.

Although not the judge who accepted defendant's guilty plea, the judge who

denied the motions to withdraw and for reconsideration had a nuanced

understanding of the case. Defendant's application followed his rejection from

the drug court program and his wife obtaining the benefit of his bargain by virtue

of her probationary sentence. The third factor, that a plea bargain exists, is not

in dispute. As to the fourth factor, the judge found the State would be severely

prejudiced if defendant were permitted to withdraw because of the difficulties

associated with recreating a paper trail for thousands of medical claims

submitted by several MRI centers beginning in 2010. It would result in an unfair

advantage to defendant. The judge's reasons were supported by the record and

legally sound. No abuse of discretion occurred.




                                                                           A-0724-17T1
                                       23
                                       B.

      Defendant also claims his sentence was excessive.          In sentencing,

however, the judge thoroughly reviewed defendant's circumstances, the offense,

and the applicable law. With ample support in the record, he found: aggravating

factor three, the likelihood of re-offense; five, the substantial likelihood that

defendant was involved in organized crime; six, defendant's prior criminal

history; and nine, the need to deter. He also found mitigating factor six because

defendant agreed to significant restitution jointly and severally with others;

eleven because his absence would cause hardship to his family, including his

elderly parents; and twelve because he cooperated with the authorities in the

prosecution of others. N.J.S.A. 2C:44-1(a), (b). We do not substitute our

judgment for that of the sentencing court so long as each factor is supported by

the evidence. See State v. Fuentes, 217 N.J. 57, 70, 72 (2014). Even though the

judge opined the aggravating factors outweighed the mitigating factors, the

judge nonetheless gave defendant the benefit of the doubt and imposed the

negotiated sentence. Defendant's imprisonment of eight years with eight months

of parole ineligibility, concurrent to six years, was neither a clearly mistaken

sentence nor shocks our conscience. See State v. Pierce, 188 N.J. 155, 166-67

(2006); State v. Roth, 95 N.J. 334, 364-66 (1984). The judge followed the


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sentencing guidelines, grounded his findings regarding the aggravating and

mitigating factors on competent, credible evidence in the record, and reasonably

applied the sentencing guidelines.

                                         II.

      In the Bergen County appeal, defendant first challenges the State's failure

to produce the letters negotiated as part of the plea agreement. We were advised

at oral argument, however, that the letters have been supplied, making

defendant's argument moot. See Betancourt v. Trinitas Hosp., 415 N.J. Super.

301, 311 (App. Div. 2010) ("A case is technically moot when the original issue

presented has been resolved, at least concerning the parties who initiated the

litigation.") (internal citations omitted).

      Defendant also challenges the sentence as excessive. Although the Bergen

County judge denied defendant's motion to withdraw the guilty plea due to the

alleged failure to establish a factual basis, he reduced the offense from a second-

degree to a third-degree crime upon reviewing the proofs.           He sentenced

defendant to the same five-year term, concurrent to the Morris County sentence,

called for by the agreement after thoroughly canvassing the record. He found

aggravating factors three, six, and nine, and mitigating factors six, eleven, and

twelve. See N.J.S.A. 2C:44-1(a), (b). The Bergen sentence, the product of the


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                                         25
judge's thoughtful weighing of aggravating and mitigating factors, was also

supported by the competent, credible evidence in the record. See Fuentes, 217

N.J. at 72. It was not clearly mistaken. It adhered to the guidelines and does

not shock our conscience. See Pierce, 188 N.J. at 166-67; Roth, 95 N.J. at 364-

66.

      Affirmed.




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