STATE OF NEW JERSEY v. CHRISTIAN JEFFERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5728-08T45728-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTIAN JEFFERSON,

Defendant-Appellant.

____________________________

Argued May 4, 2010 - Decided August 16, 2010

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 09-01-00013-A.

Carl J. Herman argued the cause for appellant.

Sara A. Friedman, Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Ms. Friedman, of counsel and on the brief).

PER CURIAM

Defendant was charged in Accusation No. 09-01-00013-A with second-degree luring, N.J.S.A. 2C:13-6, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). Defendant waived his right to have his case presented before a grand jury and entered a plea to count two which was amended to second-degree sexual assault, N.J.S.A. 2C:14-2(b).

On April 17, 2009, defendant filed a motion to withdraw his guilty plea. Prior to sentencing on June 9, 2009, the judge heard argument, denied the motion and proceeded to sentence defendant to a term of three years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant now appeals the order denying his motion to withdraw his guilty plea.

The pertinent factual background may be summarized as follows. In June 2008, defendant, who was then eighteen years old, encountered a juvenile, S.S. at the Montclair Public Library. S.S. claimed that, while they were talking, defendant pulled S.S.'s shorts to his knees; S.S. then punched defendant in the chest and ran away to tell his sister what happened. S.S. pointed out defendant to his sister but refused to report the incident to library staff. S.S.'s sister approached defendant, told him about her brother's accusation, and defendant stated that nothing improper had taken place. S.S. and his sister left the library and later called the police.

Defendant was arrested the following day. When interrogated by Montclair police detectives, defendant stated that he and S.S. went into the library bathroom together and he performed fellatio on S.S. The police took a statement from S.S. later that day, in which he stated that he went into the bathroom, defendant followed him and performed fellatio on him.

When giving the factual basis for his guilty plea, defendant stated that he and S.S. were in the library bathroom and while there he touched S.S.'s penis under his clothing. When he was interviewed for his presentence report, defendant told the probation officer that he and S.S. were in the library bathroom talking, S.S. lifted up his shirt and defendant touched S.S.'s undergarments and his "private area[,]" adding that he "felt bad, and thought things didn't add up."

Defendant was interviewed by a psychologist at the Adult Diagnostic and Treatment Center (ADTC) to determine his eligibility for sentencing as a sex offender pursuant to N.J.S.A. 2C:47-1 to -10. Defendant told the ADTC interviewer that he met S.S. at the library, struck up a conversation with him, but did not engage in any sexual activity with him. The ADTC evaluation concluded that defendant was not eligible for sentencing as a sex offender.

Defendant's attorney filed a certification in support of his motion to withdraw his guilty plea, stating that, "[s]hortly after the guilty plea was accepted by the [c]ourt, [defendant] contacted [the attorney] with questions regarding withdrawing his guilty plea[,]" and that defendant "continued to indicate that he wanted to withdraw his plea by phone calls, writings, and through his mother." Counsel further stated that at the hearing, defendant would "assert that he wants to withdraw from the plea agreement and set the matter down for trial."

At that hearing, counsel argued that defendant's "assertion of innocence is more than a blanket bold statement based on the fact that this is something that he . . . alluded to in the presentence report and stated clearly in the [ADTC] report." Counsel asked the judge to voir dire defendant about his reasons for seeking to withdraw his guilty plea. The judge did question defendant briefly, but only as to whether he had entered a knowing and voluntary guilty plea.

In denying defendant's motion, the trial judge reviewed the standards governing requests to withdraw a guilty plea recently set forth by the Supreme Court in State v. Slater, 198 N.J. 145 (2009). The judge found that defendant had not asserted a "colorable claim" of innocence, as he had "confessed to the officers when asked about the charges against him. . . . The only time that . . . [d]efendant denied his role in the crime was during his [ADTC] report . . . ." In assessing the "nature and . . . strength of [d]efendant's reason for withdrawal," the judge recalled defendant's demeanor at the plea which the judge described as "respectful[,]" adding that it "was even more reason why the court was comfortable with [defendant] being comfortable with what he was saying because he did so fluently." The judge then noted that the matter had been resolved by a plea bargain and that defendant had "significant time to consider the offer and . . . the existence of a plea bargain."

The judge found the State's argument that it would be prejudiced if defendant were permitted to withdraw his plea to be "the weakest of the arguments[,]" because the case "was not anywhere near a backlog. So that there was no need for the State to even pursue or to argue that this case go any quicker . . . ." The judge concluded: "Having reviewed all of the arguments [and] evidence presented, I find that the [d]efendant has not provided a sufficiently strong reason to request a withdrawal of this plea . . . ."

On appeal, defendant raises the following contention for our consideration:

POINT I

THE DENIAL OF DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEA WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION. IN THE ALTERNATIVE, A REMAND IS REQUIRED

In support of his request for a remand, defendant asserts that "the trial court's failure to afford [him] the opportunity to present the facts buttressing his contentions requires a remand for an evidentiary hearing." We concur that defendant is entitled to an opportunity to present his reasons for seeking to withdraw his plea and to have the trial judge address those reasons on the merits. We therefore reverse and remand for further argument on this issue.

In Slater, supra, 198 N.J. at 156, the Court noted that motions to withdraw a guilty plea "filed at or before the time of sentencing will be granted in the `interests of justice' R. 3:9-3(e) . . . ." Therefore, the Court advised that "[b]efore sentencing, courts are to exercise their discretion liberally to allow plea withdrawals." Ibid.

The Court held that

trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (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 would result in unfair prejudice to the State or unfair advantage to the accused.

[Id. at 157-58.]

The trial judge addressed these factors in deciding defendant's motion; however, we are satisfied that he did not adequately consider the second factor, namely the "nature and strength of defendant's reasons for withdrawal . . . ." Ibid. As the Court noted, "[t]his second factor focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Id. at 159.

Here, when the judge questioned defendant, he addressed only the voluntariness of his guilty plea, and did not inquire as to defendant's reasons for seeking to withdraw his plea. Moreover, in his decision, the trial judge accorded significant weight to the fact that there had been a guilty plea in this matter, notwithstanding the judge's statement that he "did not give [this factor] any greater weight than any of the other factors . . . ." In Slater, the Court "recognize[d] that the vast majority of criminal cases are resolved through plea bargains and d[id] not suggest that this factor be given great weight in the balancing process." Id. at 161.

Under the totality of circumstances, we are constrained to reverse and remand this matter for further proceedings at which defendant will have an opportunity to address the "nature and strength of [his] reasons for withdrawal . . . ." Id. at 157-58. And, the trial judge will have the opportunity to reassess the weight to be given to the fact that there was a guilty plea.

 
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

Defendant's pre-sentence report states that S.S. was fourteen at the time; at argument on defendant's motion to withdraw his guilty plea, the prosecutor represented that S.S. was twelve years old on the date of incident.

Rule 3:9-3(e) provides: "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."

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