STATE OF NEW JERSEY v. E.O

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1828-07T41828-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

E.O.,

Defendant-Appellant.

_________________________________________________________

 

Argued October 14, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-02-0253.

Miles Feinstein argued the cause for appellant.

Lenka Richards, Assistant Prosecutor, argued the cause for respondent (Edward J. DeFazio, Hudson County Prosecutor, attorney; Ms. Richards, on the brief).

PER CURIAM

Defendant appeals an order of the Law Division, Hudson County, dated December 10, 2007, denying his motion to withdraw his guilty plea. That motion was filed prior to sentencing. For the reasons which follow, we reverse the order denying the motion and remand for further proceedings.

This matter involves an accusation of sexual assault made by a minor against her brother and the subsequent recantation of that accusation. Prior to December 2006, defendant and his younger sister, A.O., lived with their biological parents in West New York, New Jersey. At the time of the reported incident, defendant was twenty-one years old and employed as a police officer with the New York City Police Department. A.O. was sixteen years old.

The following facts are alleged by defendant, and corroborated by A.O., their parents, and other credible evidence in the record. Sometime prior to December 2006, A.O. asked defendant to support her in persuading their parents to let A.O.'s boyfriend move into the family residence. Defendant refused to help, and A.O. became angry with him. The following morning, she reported to a school counselor that her brother had forced her to have sex with him. As a result of the accusation, A.O. was immediately placed in foster care, and on December 2, 2006, defendant was arrested on charges of aggravated sexual assault, endangering the welfare of a child, and sexual assault. A.O.'s parents were also arrested on charges of neglect under Title 9, a fourth-degree offense. A Hudson County Grand Jury returned Indictment No. 07-02-0253 against defendant and both of his parents, inexplicably joining all charges in one indictment. All defendants entered not guilty pleas.

At a scheduled pretrial hearing on June 21, 2007, defendant met with his counsel, his parents, and co-counsel to discuss the plea offers extended by the State. Defendant alleges the State offered to dismiss the charges against his parents if he would plead guilty to count four of the indictment, second-degree sexual assault, N.J.S.A. 2C:14-2c. This offer was not placed on the record and is not memorialized by a writing. However, defendant did agree to plead guilty in the upcoming hearing and his parents' cases were adjourned for that day. Defendant proceeded to plead guilty on the record in open court and the matter was listed for sentencing. Charges against the parents were subsequently dismissed.

A short time following the entry of the plea, prior to sentencing, defendant contacted his attorney and expressed a desire to withdraw the guilty plea as he was "innocent of the crime charged." Counsel prepared the withdrawal request, we are led to believe, before A.O.'s recantation, to be submitted prior to the date set for defendant's sentencing. In July 2007, defendant attended his pre-sentence interview, during which he once again asserted his innocence to the interviewing probation officer. On August 17, 2007, defendant was required to undergo a Sex Offender evaluation conducted by a licensed psychologist, Mark Frank, Ph.D. Again, defendant asserted his innocence to the psychologist.

In September 2007, A.O. left her foster home without permission. On September 17, 2007, a private journal, kept by A.O., while in the foster care of A.P., was found by A.P. along with other articles A.O. had left behind. A.O. had written in her journal that her allegations against defendant were entirely baseless and merely fabricated in retaliation for the argument with him over her boyfriend. A.O. also told a co-foster female resident living in A.P.'s home that she had made false accusations against her brother and gave the same retaliatory reasons for doing so. A.O. alleges that early on, she repeatedly admitted to her law guardian that the accusations against her brother were baseless. She continued to assert this for months, but her law guardian indicated that he did not believe her.

On September 21, 2007, defendant appeared before the court and advised of his intent to file a motion to withdraw his plea. The matter was carried.

On October 1, 2007, Lisa Reed, an investigator hired by A.O.'s parents, took recorded statements of the foster mother, A.P. and the co-foster female resident, corroborating the aforementioned facts. On October 5, 2007, Reed located A.O. and recorded her statements regarding the journal entries and A.O.'s prior allegations against defendant. A.O. corroborated the aforementioned facts and further offered to submit to a lie detector test to prove the veracity of her recantation.

On October 19, 2007, defendant's motion to withdraw the guilty plea was heard and denied. Defendant was then sentenced on count four of the indictment for second-degree sexual assault, N.J.S.A. 2C:14-2c, as a third-degree offender for sentencing purposes, and was given a custodial term of three years and parole supervision for life.

In support of his motion to withdraw, defendant contends he felt pressured and coerced into taking this plea, motivated by a strong desire to protect his parents. In ruling on the motion to withdraw, the sentencing judge found that

the defendant made a voluntary decision to accept the plea bargain. Whatever pressure he was under, was no more or less that encountered by any other similarly situated defendant. I further find no evidential support for the proposition that he was coerced into taking the plea.

It is well settled that "the same factors are to be used for motions filed either before or after sentencing, but the timing of the motion will trigger different burdens of proof for the movant[.]" State v. Slater, 198 N.J. 145, 156 (2009). In any case, the court must consider (1) whether 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 would result is unfair prejudice to the State or unfair advantage to the accused. However, motions filed at the time of sentencing or prior to that proceeding will be granted in the "interests of justice, R. 3:9-3(e); post-sentencing motions [however,] must meet a higher standard of 'manifest injustice' to succeed, R. 3:21-1." Ibid. The court rules provide:

If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel . . . , the court may vacate the plea or the defendant shall be permitted to withdraw the plea.

[Ibid. (quoting R. 3:9-3(e)).]

A motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice.
 
[Ibid. (quoting R. 3:21-1).]

Thus, a more lenient standard is applied to those motions to vacate a guilty plea made prior to sentencing than those made post-sentencing. Prior to sentencing, "courts are to exercise their discretion liberally to allow plea withdrawals." Slater, supra, 198 N.J. at 156 (citing State v. Smullen, 118 N.J. 408, 416 (1990)). Post-sentencing, in contrast, "defendants must show their conviction was manifestly unjust in appealing to the court's broad discretion." Ibid. "In a close case, 'the scales should usually tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).

Regardless of timing, "'the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" Slater, supra, 198 N.J. at 156 (quoting Smullen, supra, 118 N.J. at 416)). Defendant must not only make a plausible showing of his defense, but also demonstrate why that defense was not raised at the time of plea. Id. at 160 (quoting State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992)). In analyzing the reasons proffered for withdrawal, courts must not be overly skeptical of the reasons proffered. Slater, supra, 198 N.J. at 160.

A separate inquiry is made as to whether the defendant has consistently asserted "a colorable claim of innocence." Id. at 158. A bald assertion of innocence is not sufficient to warrant a withdrawal of a guilty plea. Ibid. The defendant must show credible facts, in the record where possible, to support his or her motion. Ibid. Once defendants have offered colorable reasons for their plea withdrawal, and sufficiently asserted their innocence, "'arguments against permitting withdrawal of a plea prior to sentencing weaken considerably' absent unfair prejudice or advantage." Id. at 162 (quoting Smullen, supra, 118 N.J. at 417).

Here, in denying defendant's motion to withdraw his plea, the sentencing judge found little credibility in A.O.'s recantation, particularly when made under the added pressure of her parents' arrest in connection with her earlier accusation. The sentencing judge explicitly found:

As far as the sister's recantation is concerned, its weight here must be considered in context. Shortly after revealing her abuse, her entire family was arrested and charged with a crime. She was removed from her home and placed in foster care. In short, her world was turned upside down as a result of her revelation of abuse. It is not surprising that under that circumstance, a recantation would take place, and as in the case of the Defendant, the victim's credibility here suffers from her admission of her dishonesty.

Conversely, a similar factual analysis was not afforded the defendant, whose world was likewise turned upside down as a result of A.O.'s allegations. That is to say, the pressure created by the criminal charges against defendant's parents, may have been motive enough for him to be untruthful in a "voluntary and knowingly entered" plea agreement in an effort to protect his parents from prosecution. The very circumstances which may cast doubt on the sister's recantation, cannot be viewed in a vacuum when one considers the circumstances of defendant's plea agreement.

In his certification dated October 5, 2007, defendant offered the following explanations for his June 21, 2007, guilty plea:

[The prosecutor] informed me through my counsel and my parents' attorneys that he would likely dismiss the charges against my parents if I took the plea.

This was a very strong factor to induce me to take blame in this case so that my parents would be free from prosecution.

The attorneys advised me to take the plea.

I felt pressured and felt that I had to protect my parents.

. . . .

Another reason I plead guilty to the charges was because I thought my sister . . . was not going to recant her statement and tell the truth.

The case was seven months old and to my knowledge my sister still was telling the prosecutor that I was guilty.

. . . .

On the day of the plea, I just felt like there was no hope and I submitted to the pressure to take a plea.

We are mindful of the competing interests and credibility hazards associated with a victim's recantation, particularly against a family member. However, we do not find sufficient evidence in the record to cast such conclusive doubt on A.O.'s recantation. First, A.O.'s placement in foster care took her out of a potentially coercive home environment. Second, her recantation was preceded by other admissible proofs casting doubt upon the prior accusations which she had made against her brother, i.e., her admission in a written journal, admission to her legal guardian, and admission to a co-foster resident. Last, A.O.'s stated motive for accusing defendant of a crime is consistent with the facts and stands without contradiction; the accusation was in retaliation for defendant's failure to assist A.O. in persuading her parents to permit her boyfriend to move into the family residence.

Viewing the totality of the circumstances, we do not find the position defendant was in during plea negotiations to be like "that encountered by any other similarly situated defendant" in considering a proposed plea bargain. Notably, the prosecution of a defendant's parents is not generally a factor upon which the balance hangs in the outcome of a plea offer. We are not of the view that a defendant's concern for his parents, alone, is a valid defense for prompt plea withdrawal. However, the circumstances should be viewed from his perspective as well. We also note that there was no evidence implicating defendant, other than his sister's accusation. Consequently, we appreciate that even though a recantation of the accusation may seriously impair the State's case against defendant, any prejudice or shift in the strength of the State's case is not due to any delay on the part of defendant nor, so far as may be discerned, due to any manipulation on defendant's part. Slater, supra, 198 N.J. at 161.

For these reasons, coupled with defendant's numerous, persistent and contemporaneous assertions of his innocence, we reverse the order denying defendant's motion to withdraw the guilty plea and remand for further proceedings consistent with this decision. We do not retain jurisdiction.

Reversed and remanded.

 

(continued)

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11

A-1828-07T4

RECORD IMPOUNDED

August 12, 2009