STATE OF NEW JERSEY v. YOSEF A. KOLKO

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YOSEF A. KOLKO,

Defendant-Appellant.

January 6, 2016

Submitted December 14, 2015 Decided

Before Judges Carroll and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-06-01181.

Terry Bruce Stomel, attorney for appellant.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; John C. Tassini, Assistant Prosecutor, on the brief).

PER CURIAM

The Ocean County grand jury returned Indictment No. 10-06-01181, charging defendant Yosef Kolko with first-degree aggravated sexual assault of Y.S., N.J.S.A. 2C:14-2a(1) (count one); second-degree attempted aggravated sexual assault of Y.S., N.J.S.A. 2C:5-1 and 14-2a(1) (count two); second-degree sexual assault of Y.S., N.J.S.A. 2C:14-2b (count three); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count four). In substance, the State alleged that, while employed as a camp counselor, defendant committed multiple acts of sexual assault on Y.S. between September 2007, and February 2009. During that period, Y.S. was less than thirteen years old and entrusted to defendant's care.

On May 13, 2013, after trial had commenced and three of the State's witnesses, including the victim, had testified, the prosecutor advised defense counsel that two other alleged victims had come forward. Defendant then pled guilty to the indictment. In return, the State agreed not to investigate or prosecute the complaints of the two new victims.

Before the trial judge, Francis Hodgson, Jr., defendant acknowledged his understanding of the plea agreement, including all the consequences of Megan's Law and parole supervision for life. Defendant acknowledged that he had adequate time to speak to his attorney, with whom he had reviewed the plea forms, and that he had no questions. The judge engaged defendant in the following colloquy

THE COURT: [Did] [a]nybody make any [other] promises . . . to persuade you to plead guilty?

DEFENDANT: Not by the Court.

THE COURT: Okay. So nobody has made any promises in addition to that in order to force you or persuade you to plead guilty?

DEFENDANT: Not part of the court system, no.

THE COURT: Okay. So there may be something else as far as through religious? Is it something that affects this plea?

DEFENDANT: No.

THE COURT: Okay. Has anybody forced, threatened or coerced you in order to have you take this plea?

DEFENDANT: No.

. . . .

THE COURT: And you are pleading guilty because you are guilty?

DEFENDANT: Yes.

The court then elicited a factual basis during which defendant admitted to the various crimes specified in the indictment. The court found the factual basis sufficient, and that "defendant has freely, knowingly[,] and voluntarily given up his right to trial." Defendant's bail was revoked and the matter scheduled for sentencing.

Prior to sentencing, defendant retained new counsel and moved to withdraw his guilty plea.1 Defendant claimed that his plea was not truly voluntary and that he had been subjected to intense pressure by members of his religious community to plead guilty notwithstanding his professed innocence.

On October 17, 2013, Judge Hodgson conducted a hearing on defendant's motion. After the court denied new counsel's request for an adjournment, four acquaintances and/or members of the religious community testified on defendant's behalf. They uniformly stated that while they tried to convince defendant to plead guilty because it would result in a lesser sentence, no threats were ever used. Defendant adamantly rebuffed their efforts, and steadfastly maintained his innocence.

Defendant's brother testified that he was present in court the day defendant entered his guilty plea. He confirmed that defendant was advised that two new alleged victims had come forward. Defendant then spoke with trial counsel and his rabbi, and elected to plead guilty. Defendant's brother presented a note he claimed defendant wrote that morning, the "basic gist" of which was that defendant "felt pressured into taking the plea and didn't feel it was the right thing to do."

Defendant's trial counsel was called to testify by the State. He likewise stated that, on the morning that defendant pled guilty, the prosecutor had advised him of the two new potential complaints. After counsel imparted this information, defendant's "face turned white" and "[h]is jaw dropped." This disclosure "altered the landscape," and led to the commencement of plea discussions. After conferring with counsel, defendant conferred with his family and his rabbi, and elected to change his plea.

Trial counsel further testified that although there were other members of the religious community speaking with defendant, defendant was never threatened or coerced. Defendant never indicated to trial counsel that he felt pressured to take the plea. Although defendant had previously been adamant that he was innocent, counsel's assessment of the evidence was "overwhelmingly to the contrary." Defendant did not testify at the hearing.

After considering oral argument, Judge Hodgson concluded that defendant's guilty plea was entered knowingly and voluntarily. The judge discounted defendant's contention that others had forced him to plead guilty, stating

Now, I find that they may have been trying to persuade him. But, really, I find from all of the testimony that that was nothing more than friends who cared about a fellow friend seeking to persuade him, in the most comforting terms that they could, to do what was best for him.

The judge then set forth additional detailed findings, including the following

I find that the trial began and he became more upset because the trial was not going well for him. Witnesses whom he expected not to testify appeared.

And I'm not very often asked to remark upon the credibility of a witness who testifies before a jury, but I will in this case because I think it's important. I heard the witnesses testify. And I can say that rarely I've ever seen witness[es] who testified as credibly as the victim and the victim's father did in this case. Not only were they credible, not only was the victim's father [credible], but his testimony was corroborated by a tape. . . .

I think that everyone in the courtroom who witnessed this understood that the evidence was piling up against the defendant. I think the defendant understood it. And I think that accounts for his change of heart, [] as well as his change of demeanor. And I find that.

And I further find that by his actions in penning a note, which he gave the brother the impression was an important piece of evidence, the only proceeding that was left was a motion to vacate. And I am satisfied, and I do find that this letter was penned with the intent of trying to persuade the [c]ourt to allow him to withdraw his guilty plea to get a re[-]do. That at this time he was not successful in having the witnesses not appear. They did appear and they testified credibly. That had he gotten a re[-]do, things might change.

The judge then applied his factual findings to the factors set forth in State v. Slater, 198 N.J. 145, 157-58 (2009). He concluded that defendant failed to present any "colorable claim of innocence," noting that defendant only made a "bare assertion" that he was innocent. The judge also concluded that defendant had not presented any persuasive reason for withdrawing his plea "either by force, threat or coercion." Although there was a plea agreement pursuant to which the State agreed not to prosecute the new charges, from which defendant thus benefited, the judge did not give this factor much weight. Finally, the court found that the fourth factor, unfair prejudice to the State or unfair advantage to the accused, weighed in the State's favor. The judge reiterated that defendant "recognized that [the trial] wasn't going well and he saw an opportunity to get a do-over."

The judge denied the motion and sentenced defendant to an aggregate fifteen-year term of imprisonment with an eighty-five-percent parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was also subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, including parole supervision for life. This appeal followed.

Before us, defendant contends that

POINT I

THE COURT SHOULD HAVE GRANTED THE DEFENDANT'S REQUEST TO WITHDRAW HIS GUILTY PLEA.

POINT II

THE COURT SHOULD HAVE GRANTED DEFENSE ATTORNEY'S REQUEST FOR ADDITIONAL TIME TO PREPARE FOR THE MOTION TO WITHDRAW THE DEFENDANT'S GUILTY PLEA.

POINT III

BECAUSE DEFENDANT/APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL AT SENTENCING, HIS SENTENCE SHOULD BE VACATED AND THE MATTER SHOULD BE REMANDED FOR SENTENCING.

We have considered these arguments in light of the record and applicable legal standards. We find the arguments lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Hodgson in his comprehensive oral opinion. We add only the following brief comments.

In Slater, supra, 198 N.J. at 157-58, the Court identified four factors to be considered in deciding a motion to withdraw a previously-entered guilty plea. The first is whether the defendant has "asserted a colorable claim of innocence. . . ." Id. at 157. Next, the judge should consider "the nature and strength of defendant's reasons for withdrawal . . . ." Id. at 157-58. The third factor is whether the plea was entered pursuant to a plea bargain. Id. at 158. And, lastly, the court must consider "whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Ibid. In all circumstances, the defendant bears the burden "'to present some plausible basis for his request, and his good faith in asserting a defense on the merits[,]'" and the motion is addressed to the trial court's sound discretion. Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)).

Here, the plea was entered after the trial began, and the State established some prejudice in again having to proceed to trial with a young victim who had already appeared and been subjected to cross-examination. "Another important consideration is whether trial has begun. Once a jury has been chosen and sworn, and a plea interrupts the trial, withdrawal should only be permitted in the rarest of circumstances." Slater, supra, 198 N.J. at 161 (citing State v. Herman, 47 N.J. 73, 78 (1966)).

More importantly, Judge Hodgson correctly determined that defendant made no colorable claim of innocence. At the hearing on the motion, defendant's focus was entirely on the pressure allegedly brought to bear on him to plead guilty despite his avowed innocence. The judge correctly evaluated the relevant facts and found no basis for a colorable claim of innocence, including defendant's voluntary, counseled plea. See Slater, supra, 198 N.J. at 158 ("A bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim."). Nor did defendant satisfy the second Slater factor. See id. at 159 ("This 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."). Here, the witnesses' testimony establishes that although they attempted to convince defendant to plead guilty for his own good, their efforts proved unsuccessful. Instead, the record supports the judge's finding that defendant entered his plea, then sought to withdraw it, in hopes that a second trial would proceed more favorably.

Defendant's second and third points also lack merit. Essentially, both points center on defendant's contention that the court erred in denying his counsel's request for an adjournment of the motion and sentence. Defense counsel sought the adjournment on the basis that he had recently concluded a trial in federal court and needed additional time to prepare.

We review a motion for an adjournment under a deferential standard. State v. Miller, 216 N.J.40, 65 (2013), cert. denied, ___ U.S.___, 134 S. Ct. 1329. 188 L. Ed. 2d 339 (2014). "'[W]hether a trial court should grant or deny a defendant's request for an adjournment to retain counsel requires a balancing process informed by an intensely fact-sensitive inquiry.'" Id.at 66 (quoting State v. Hayes, 205 N.J. 522, 538 (2011)). In reviewing a trial court's discretionary determination on a defendant's motion to adjourn, "'there are two conditions which must exist to warrant' reversal of the conviction." Ibid. (quoting Hayes, supra, 205 N.J. at 539). "First, 'the judicial action must have been clearly unreasonable in the light of the accompanying and surrounding circumstances.'" Ibid. (quoting Hayes, supra, 205 N.J. at 539). Second, the decision must have prejudiced the defendant such that "'the defendant suffered manifest wrong or injury.'" Id. at 66-67 (quoting Hayes, supra, 205 N.J. at 537).

Here, the court noted that when it approved the substitution of new counsel it did so with the understanding that no further delay would result. Defendant had already engaged at least four attorneys since his indictment. Additionally, when this final adjournment request was denied, the motion and sentence had already been adjourned twice. Moreover, defendant fails to identify any additional evidence or argument he could have presented at either the motion or sentencing had the adjournment been granted. We thus discern no prejudice to defendant, or abuse of discretion, resulting from the court's denial of the adjournment request.

1 We note that defendant's motion and any supporting certifications are not included in his appendix.