STATE OF NEW JERSEY v. ALIM HASSAN

This case can also be found at 197 N.J. 16, 960 A.2d 745.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5443-05T45443-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALIM HASSAN,

Defendant-Appellant.

__________________________________________________________

 

Submitted January 24, 2008 - Decided

Before Judges Parker and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-01-0104.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Joel S. Silberman, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Alim Hassan appeals from an order entered on April 18, 2006 denying his petition for post-conviction relief (PCR) by which defendant sought to withdraw his plea of guilty to two counts of murder and one count of aggravated manslaughter, amended from murder. Defendant contends the evidence presented at the plea hearing failed to establish an adequate factual basis for the guilty plea. After carefully reviewing defendant's arguments in light of the facts and applicable law, we affirm.

On December 2, 2002, defendant was indicted by a Hudson County Grand Jury under Indictment No. 03-01-0104 charging five counts: murder of his mother-in-law, Bernadette Seajatan, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (first count); murder of his sister-in-law, Sharon Yassim, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (second count); murder of his wife, Marlyn Hassan, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (third count); unlawful possession of a weapon, N.J.S.A. 2C:39-5d (fourth count); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (fifth count). As part of a negotiated plea agreement entered on December 1, 2003, the State conditionally withdrew the Notice of Aggravating Factors it had filed and amended the third count of the indictment from murder to first degree aggravated manslaughter, N.J.S.A. 2C:11-4. The plea agreement removed defendant's exposure to the death penalty. In exchange, defendant agreed to plead guilty to the first and second counts and to the third count, as amended. Counts four and five were to be dismissed.

The plea form disclosed that the prosecutor had agreed to recommend on each count of murder thirty years imprisonment with a period of parole ineligibility of thirty years and, on the aggravated manslaughter, thirty years with a period of ineligibility for eighty-five percent of that time. Defendant's total recommended exposure would be ninety years in prison with a mandatory minimum of eighty-five years and six months. The plea form expressly recited, however, that the "prosecutor [was] free to speak for consecutive sentences on each count; defense [was] free to speak for concurrent sentences."

During the colloquy at the plea hearing, the prosecutor placed on the record the facts supporting the charges that were the subject of the plea agreement. Before doing so, the prosecutor acknowledged the circumstantial nature of the evidence, commenting "Judge, the difficulty I have with marking the documents is that there is no really no one report that explains the case. It is a circumstantial case." The prosecutor then began to place on the record the proposed factual basis for the plea, which we repeat at length:

Your Honor, at about 7:40 a.m. on July 30th, '02, Jersey City police were called to 10 Fox Place in Jersey City. When they arrived there, they found the, they found the three lifeless bodies of Bernadette Seajatan, Sharon Yassim and Marilyn [sic] Hassan. Mrs. Hassan is the wife of the Defendant.

There had been two young boys at home who basically found the bodies of their mother, aunt and grandmother.

The police initially spoke to Lynette Foo who was the sister of one of the victims. She explained to the police who had been living at that address and it was the three deceased women as well as the Defendant and two other, the two other husbands of the two women.

On speaking with the two other husbands, Your Honor, it became clear that the morning of the incident the other two men had left the home to go to work at about 5:30 or six o'clock in the morning and had left when everybody else in the house, that being the three victims, the two young boys and Mr. Hassan were still asleep, or so they thought, in the home.

At some point, Judge, as I said the husbands of the other two victims were spoken to. They were not believed to be involved in the incident.

When police spoke with the sister of Mr. Hassan, who lived in Philadelphia, they learned that Mrs. Hassan had been having problems -- they learned the same things from both victims and, victim and Defendant's friends and family, that there had certainly been conflict between victim and Defendant concerning religious, religious beliefs and how their two children, with whom Defendant's wife was pregnant should be raised.

That conflict extended to Mr. Hassan, Marilyn [sic] Hassan's mother and sister as well who seemed to be putting pressure on their daughter and sister to leave Mr. Hassan.

When the police spoke to Mr. Hassan's sister, they learned that at some point Mr. Hassan had been staying with his sister in Philadelphia, had borrowed a car and then moved back home with his family in Jersey City.

The morning of the incident, Mr. Hassan left Jersey City, Judge, apparently after the homicides, drove his car back to Philadelphia, left it at his sister's home, and then took a train back up to New York and then took public transportation, Your Honor, I think it was an Amtrak train from New York City up to Buffalo. He was arrested as he attempted to cross the Canadian border.

Again when detectives spoke with his sister, ultimately Mr. Hassan's sister indicated to the police that at about, I think it was 6:30 on the morning, 6:50 a.m. on the morning of the homicide, Your Honor, that Mr. Hassan had called her and said "I did something crazy. I stabbed Marilyn [sic]. I don't believe I did something like that."

Your Honor, with reference to the autopsies, the autopsy of Bernadette Seajatan performed by the State Medical Examiner, indicated that she was found with two stab wounds to the neck, four stab wounds to the chest, four stab wounds to the abdomen, one stab, one wound to her right flank, one wound to the left flank, one stab wound to the left torso, a stab wound to the back of her neck, one to the upper back, one to the mid-back, one to the hip and buttocks region, three incised wounds to the right hand, four to the left wrist and also one to the left thigh.

Your Honor, the cause of Bernadette Seajatan's death was multiple stab and incised wounds.

The manner of her death, homicide.

With reference to Sharon Yassim, Your Honor, she was also examined by the State Medical Examiner's Office. She was found to have multiple sharp force wounds. Those included ten stab wounds and five superficial cut wounds and defense wounds to her right hand.

She had internal injuries including severance to the right external jugular vein, the right internal carotid artery, as well as incised wound of the right ventricle of heart, diaphragm, large bowel and liver.

Your Honor, Sharon Yassim, with reference to Mrs. Yassim, the cause of her death was also multiple stab wounds and the manner of her death was found to be homicide.

And, Your Honor, Marilyn [sic] Hassan, who is the wife or was the wife of the Defendant, Mr. Hassan, Your Honor, at her autopsy the Medical Examiner found approximately fifteen stab wounds of the torso and neck with penetrations of the trachea, lung, live [sic], kidney, inferior vena cava, and uterus. A neck hematoma. Lungs with hemorrhage.

And a uterus with male fetus and female fetus approximately sixteen weeks gestational age.

Your Honor, there were also abrasive and incised wounds found upon Marilyn [sic] Hassan.

The cause of Marilyn [sic] Hassan's death was found to be stab wounds of the torso and neck.

And the manner of death, homicide.

At that juncture, the prosecutor and defense counsel agreed that an adequate factual basis for the plea had been placed on the record and defense counsel represented that defendant was "acknowledging his culpability. His criminal liability." Significantly, defendant did not personally make that acknowledgement. Rather, the questions directed by the court to defendant, who had previously been placed under oath, continued as follows:

THE COURT: You did hear what [the prosecutor] said, correct?

DEFENDANT HASSAN: Yes, My Worship.

THE COURT: Do you agree with the factual basis that she --

DEFENDANT HASSAN: Yes, My Worship.

[DEFENSE COUNSEL]: Your Honor he is saying yes, My Worship. You can say yes My Honor, Your Honor, excuse me.

. . .

THE COURT: I show you a copy of this plea form and ask you if, if that is your signature?

DEFENDANT HASSAN: Yes, My Honor.

THE COURT: Did you go over those questions and answers with both your attorneys?

DEFENDANT HASSAN: Yes, My Honor.

THE COURT: Did you understand the questions and answers?

DEFENDANT HASSAN: Yes.

THE COURT: Do you understand that by pleading guilty you are waiving your right to a trial, you were set up here for quite a period of time, last time to speak to your attorneys. The court was ready to proceed with the trial.

Do you understand that?

DEFENDANT HASSAN: Yes.

The court continued to ask defendant whether he understood his rights and the terms of the plea agreement. The court then asked defendant if anybody forced, coerced or threatened him in any way to enter the plea, and defendant responded, "No." The court then reminded defendant of the consequences, the potential sentencing exposure, telling him:

The minimum sentence that you can receive due to the circumstances here would be 30 years. And that minimum will carry 30 years before you are eligible for parole. The maximum sentence, of course, if the Court would run these consecutively, would be 90 years which is a life sentence. It would be for the rest of your life.

The Court has no idea at this point as to how I will proceed. The [sic] terms of whether it will be consecutive or concurrent.

. . .

And the 30 years without parole, it could be 60 years if they were run consecutively. And it could be as much as 90 years which, as I said before essentially certainly a life sentence. The rest of your life in jail without the possibility of parole. That is a possible sentence and you understand that?

DEFENDANT HASSAN: Yes.

On March 11, 2004, a judgment of conviction was entered imposing upon defendant, for each murder conviction, consecutive terms of thirty years, subject to thirty years of parole ineligibility for each, and for the aggravated manslaughter count, a term of thirty years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed the sentence, contending it was excessive. On April 29, 2005, we heard oral arguments on that appeal on an excessive sentencing calendar pursuant to Rule 2:9-11. We affirmed the judgment of conviction. Defendant did not petition the Supreme Court for certification.

On November 16, 2005, defendant filed the PCR petition that is the subject of this appeal. The matter was heard on March 20, 2006, and the PCR court rendered its decision on the record on April 17, 2006, denying the requested relief. The order to that effect was filed on April 18, 2006. The court expressed the following reasons for its order:

Rule 3:9-2 requires that the court must independently satisfy itself that there is a factual basis for the plea, that the plea is made voluntarily, not as a result of any threats or any promises or inducements not disclosed on the record and three, with an understanding of the nature of the charge and the consequence -- consequences of the plea.

In most cases a factual basis is elicited from the defendant except in a capital offense or a lesser included offense when the defendant is charged with a crime punishable by death. No factual basis shall be required from the defendant before entry of a guilty plea provided the Court is satisfied from the proofs presented that there is a factual basis for the plea.

Here the record does show that the petitioner did understand the nature of the charges, charges, although he did not provide the factual basis for the charge himself. The factual basis . . . was not required from the defendant because of the capital case however it was in fact provided by the State and agreed to by the defendant.

The Court finds that the defendant did have an understanding of the plea and the charge. He further -- the defendant further alleges that he did not understand the importance and the effect of his plea and that it was not made knowingly or intelligently. These assertions however, are unsupported by the record.

The defendant stated according to the transcripts that he understood the factual basis that the State presented and agreed with the factual basis. He also stated on the record that he himself had signed the plea form, that he had enough time to discuss this case with his lawyers before deciding to plead guilty and that he understood that by pleading guilty he was waiving his right to a trial.

When the defendant, Mr. Hassan's, guilty plea [was] entered by the trial judge in this case, [the judge], carefully and fully complied with the mandates of [R]ule 3:9-2 to ensure that the defendant understood the nature and consequences of the charge. [The judge] also advised the defendant of his right to a jury trial[,] counsel[,] and informed him that the minimum sentence would be 30 years and the maximum sentence, if the court would run these counts consecutively would be 90 years, a life sentence. Thus, the court finds that the guilty plea was sufficient to comply with [R]ule 3:9-2 and therefore it should not be disturbed.

In this appeal, defendant raises the following arguments for our consideration:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE THE EVIDENCE AT THE PLEA COLLOQUY CLEARLY FAILED TO PROVIDE A FACTUAL BASIS FOR THE PLEA, AND DEFENDANT FAILED TO ENTER THE PLEA WITH FULL KNOWLEDGE OF ITS CONSEQUENCES DUE TO INEFFECTIVENESS OF TRIAL COUNSEL.

A. THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE DEFENDANT CLEARLY FAILED TO PROVIDE A FACTUAL BASIS FOR THE PLEAS TO THE MURDERS OF BERNADETTE SEAJATAN AND SHARON YASSIM AND THE TRIAL COURT FAILED TO REQUIRE THAT INFORMATION BE PRODUCED SUPPORTING A FACTUAL PREDICATE FOR THE PLEAS THEREBY RENDERING THE PLEA INVALID AND ANY SENTENCE IMPOSED THERETO ILLEGAL PURSUANT TO RULE 3:22-2.

B. TRIAL COUNSEL WERE INEFFECTIVE IN FAILING TO INVESTIGATE AND EXPLAIN POTENTIAL DEFENSES TO THE CHARGES TO MR. HASSAN, IN FAILING TO APPROPRIATELY COUNSEL MR. HASSAN AS TO THE CONSEQUENCES OF THE GUILTY PLEA AND IN FAILING TO REQUIRE THAT INFORMATION BE PRODUCED SUPPORTING A FACTUAL PREDICATE FOR THE CRIMES IN SUPPORT OF THE PLEA.

POINT II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT A HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE-ASSISTANCE-OF-COUNSEL.

POINT III: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE SINCE COUNSEL FAILED TO RAISE REVERSIBLE ISSUES ON APPEAL.

POINT IV: THE CLAIMS RAISED BY DEFENDANT IN THE WITHIN PETITION WERE NOT LITIGATED ON DIRECT APPEAL AND FAILURE TO RAISE ALL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ON DIRECT APPEAL DID NOT PROCEDURALLY BAR CLAIM IN POST-CONVICTION PROCEEDING.

We agree fully with the PCR court that the record, including the transcript of the plea hearing and the plea forms, demonstrated that defendant well-understood the charges and the consequences of his plea and that he knowingly and voluntarily waived his right to a trial. Defendant's continuing arguments to the contrary are so lacking in merit that they do not warrant discussion in a written opinion. See R. 2:11-3(e)(2).

Defendant argues emphatically, however, that there was not an adequate factual basis for the court to accept his pleas of guilty to the murders of Bernadette Seajatan and Sharon Yassim. Defendant further argues that "no evidence was placed on the record that defendant acknowledged any type of responsibility for the deaths of Bernadette Seajatan or Sharon Yassim." As to the remaining victim, Marlyn Hassan, the prosecutor's recitation of the facts included a statement made by defendant to his sister -- which was not disavowed by defendant at the plea hearing -- that acknowledged his conduct. He said he "did something crazy. [He] stabbed Marlyn."

The bodies of the other two women were found stabbed to death in the same house on the same day his wife was stabbed. Other than two children, defendant was the only other person in the house during the relevant time. That circumstance provides a strong, almost irresistible, link between defendant and the deaths of all three women. Defendant points out he never admitted stabbing his mother-in-law or his sister-in-law, and although the prosecutor's statement provides evidence of the multiple stab wounds inflicted, it does not provide any direct evidence that establishes that defendant inflicted those wounds. The flaw in defendant's argument is he fails to appreciate that "[a] conviction may be based solely on circumstantial evidence if it is sufficient to generate a belief of guilt beyond a reasonable doubt." State v. Kamienski, 254 N.J. Super. 75, 105 (App. Div. 1992).

We recognize that in State v. Davis, the Court noted that a plea is different from a jury verdict and that in New Jersey a guilty plea to a non-capital charge cannot be accepted unless the defendant acknowledges his guilt. 116 N.J. 341, 370-71 (1989), superseded by constitutional amendment on other grounds, and N.J. Const., art. I., P12, as stated in State v. Cruz, 163 N.J. 403, 411 (2000). The Court's further comment reveals that statement meant a defendant cannot merely acknowledge guilt if he or she is contradicting the factual foundation. The Court explained:

Although Rule 3:9-2 waives the requirement that defendants charged with capital crimes supply the factual basis, that Rule is designed only to avoid forcing the defendant to say anything that might support an aggravating factor. Comment, Trial Judges Committee on Capital Causes, reprinted in S. Pressler, Rules Governing the Courts of the State of New Jersey 533 (1989). Furthermore, the Rule preserves the factual-basis requirement even though waiving the requirement that the defendant supply it. While the factual-basis requirement might be waivable where a defendant pleads guilty to a lesser-included offense in order to avoid the death penalty, ibid., a factual basis for a capital conviction cannot be sufficient when defendant's statements in support of his plea contradict the required intent. The problem in this case is that although there may be sufficient facts available to support a finding that the defendant knowingly and purposefully murdered, his statements contradict any such finding.

[Id. at 371.]

The problem of contradiction, to which the Court alludes in Davis, does not present itself in this case. Defendant never said he did not do it. He simply says the State failed to prove that he did it. The plea court and the PCR courts disagreed, as do we.

We also note that defendant's departure from Jersey City to Philadelphia and then to New York City, Buffalo and the Canadian border constituted a flight, giving rise to a compelling inference of consciousness of guilt.

We . . . have recognized flight as being a type of post-crime conduct that can demonstrate consciousness of guilt. State v. Long, 119 N.J. 439, 499, 575 A.2d 435 (1990) ("Flight of an accused is admissible as evidence of consciousness of guilt . . . ."); see generally 2 Wigmore on Evidence 276 (Chadbourn rev. 1979) ("It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself . . . ."). Thus, evidence of flight occurring after the commission of an offense has been held probative of guilt and admissible. See State v. Mann, 132 N.J. 410, 418-19, 625 A.2d 1102 (1993) (explaining that evidence of flight after charged offense is admissible when probative of guilt).

[State v. Williams, 190 N.J. 114, 125-26 (2007); see, e.g., State v. Williams, 192 N.J. 1, 4 (2007); State v. Crawley, 187 N.J. 440, 451-52, cert. denied sub nom., Crawley v. N.J., ___ U.S. ___, 127 S. Ct. 740, 740, 166 L. Ed. 2d 563, 563 (2006) (determining that a person must obey an officer's order to stop and may not take flight without violating N.J.S.A. 2C:29-1, obstruction of the administration of law).]

As noted, "[u]nder Rule 3:9-2 a capital defendant pleading guilty is not required to supply a factual basis for the charge, although a sufficient factual basis is still a prerequisite to acceptance of the plea." Davis, supra, 116 N.J. at 370. "When a defendant is charged with capital murder . . . 'no factual basis shall be required from the defendant' as long as the court is satisfied that a factual basis for the plea has been established from the proofs presented." State v. Simon, 161 N.J. 416, 453 (1999) (citing State v. Jackson, 118 N.J. 484, 488 (1990); Davis, supra, 116 N.J. at 371). Furthermore,

We have adopted the shorthand expression that the trial court "must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" That does not mean that a court must follow a prescribed or artificial ritual. To the contrary, because different criminal charges and different defendants require courts to act flexibly to achieve constitutional ends, a factual basis, established either through inquiry of others, which a defendant acknowledges, or through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy.

[State In the Interest of T.M., 166 N.J. 319, 327 (2001) (internal citations omitted).]

We recognize that a critical distinction exists between capital murder and non-capital murder and that the mental state of the defendant is a critical factor in determining death worthiness. See, e.g., Jackson, supra, 118 N.J. at 489. A defendant charged with knowing or purposeful homicide, N.J.S.A. 2C:11-3a(1) and (2), could not be subject to the death penalty unless the State proved beyond a reasonable doubt that the defendant intended to kill the victim and not merely that he intended to cause serious bodily injury that resulted in death. Significantly, in this case, the State had withdrawn its notice of aggravating factors as part of the plea agreement, and it had abandoned its effort to establish a capital offense. Accordingly, although it has been said that "[n]ot every stabbing wound is intended to kill," Jackson, supra, 118 N.J. at 491, the number and locations of the wounds inflicted upon each victim in this case did provide a factual basis for the court to conclude, at a minimum, that the actor intended to cause serious bodily injury that resulted in death. We are satisfied that the record contains a sufficient basis for the trial court to have accepted defendant's plea of guilty to non-capital murder.

Moreover, we have previously recognized that not every alleged deficiency in the taking of a factual basis constitutes reversible error. State v. Pena, 301 N.J. Super. 158, 163 (App. Div. 1997). Similarly, the Supreme Court has held that a trial court's failure to spell out the factual basis of defendant's plea does not, under all circumstances, constitute an improper acceptance of the guilty plea sufficient to invalidate the conviction and to render the sentence illegal. State v. D.D.M., 140 N.J. 83, 95 (1995). Thus, in State v. Mitchell, the Court noted:

Our procedural Rules do require a judge to elicit a factual basis for a guilty plea. R. 3:9-2. As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly "voluntary" decision on his own.

[ 126 N.J. 565, 577-78 (1992).]

At the plea hearing, defendant did not assert a contemporaneous claim of innocence; nor is such a claim asserted in his appellate brief. Rather, defendant emphasizes his view that no evidence was offered to support the conclusion that defendant was responsible for the deaths of Bernadette Seajatan and Sharon Yassim. As we have indicated, that view fails to take account of the powerfully persuasive circumstantial facts of the case.

Rule 3:21-1 allows a defendant to withdraw his or her plea. That rule provides, more particularly, that "[a] motion to withdraw a plea of guilty . . . shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice. R. 3:21-1. "Following sentencing, if a defendant seeks to withdraw a guilty plea the court weighs more heavily the State's interest in finality and applies a more stringent standard. State v. McQuaid, 147 N.J. 464, 487 (1997). Competing interests must be balanced, and in striking the proper balance, "'[w]hat is crucial is that the plea bargain has been fairly reached and that defendant's reasonable expectations drawn from the terms of the bargain have been fulfilled.'" Id. at 487-88 (quoting State v. Taylor, 80 N.J. 353, 364 (1979)).

In his appellate brief in this matter, defendant asserts that "he remained mute [regarding the absence of an adequate factual basis for the plea as to the two women and regarding a potential mental illness defense] based on counsel's representations that he would receive a concurrent sentence and [because] counsel wanted solely to avoid a trial." On that basis, defendant asserts that his trial counsel provided ineffective assistance and that, later, his appellate counsel provided ineffective assistance by failing to address the issue regarding the inadequacy of the factual basis for the plea. Because we disagree with defendant's premise that the plea should not have been accepted, we also reject the claims of ineffective assistance by trial and appellate counsel. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We need not consider whether those claims are procedurally barred.

The plea bargaining process provides benefits to both parties. See McQuaid, supra, 147 N.J. at 485. As the McQuaid court observed:

The defendant benefits by reducing his penal consequences and avoiding the public humiliation of a trial; the State benefits by assuring that a guilty defendant is punished and by protecting valuable judicial and prosecutorial resources.

[Ibid.]

Here, defendant agreed to plead guilty to the non-capital charges in exchange for the assurance that he would not face the death penalty. While defendant contends that his counsel led him to believe he would receive concurrent terms for the three offenses, that contention is belied by the plea forms, which expressly reserved and announced the prosecutor's right to seek consecutive sentencing. The transcript of the plea hearing also reveals the trial court reminded defendant at least twice that if the plea were accepted, defendant might spend the rest of his life in prison. In the face of those reminders, defendant could not have reasonably relied on any contrary predictions by counsel. Nor could defendant have had a reasonable expectation that the sentence would run concurrently. Defendant could have reasonably expected he would not be subject to the death penalty and that he would be permitted to advocate for concurrent sentences. Those expectations were fulfilled. We perceive no manifest injustice. See R. 3:21-1.

Affirmed.

 

Effective December 17, 2007, the Legislature adopted legislation that abolished the death penalty and replaced it with life imprisonment without the possibility of parole. L. 2007, c. 204; see also State v. Fortin, 400 N.J. Super. 434, 439 (App. Div. 2008).

We note that defendant's appendix includes a letter to the Public Defender's office, dated August 24, 2004, in which defendant "begged" that his case be withdrawn from the excessive sentencing oral argument calendar and that it be submitted to the Appellate Section seeking full review of the case. Nevertheless, the matter was considered on the excessive sentencing calendar.

The appellate brief submitted on defendant's behalf acknowledges "[t]he fact that Mr. Hassan did not himself provide a factual basis relating to the death of Maryln Hassan was permissible since he clearly admitted to facts supporting that he caused her death (i.e. that he stabbed Maryln)."

(continued)

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A-5443-05T4

August 5, 2008