STATE OF NEW JERSEY v. CARLOS CANAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2890-03T42890-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS CANAS,

Defendant-Appellant.

_______________________________

 

Submitted November 7, 2005 - Decided

Before Judges Alley and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, 00-04-102-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General of New Jersey, attorney for respondent (Lora B. Glick, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant pled guilty to the attempted murder of his girlfriend, N.J.S.A. 2C:11-3 and 2C:5-1, Count One, and was sentenced to a ten-year term of imprisonment, eighty-five percent to be served without eligibility for parole. The other charges were dismissed. We affirmed his sentence on September 16, 2003, on the Excessive Sentence Oral Argument Calendar.

The background was as follows:

On November 27, 1999, at approximately 11:30 p.m., police arrived at North Main Street, near the Hunter Hills Apartment complex in Flemington, to investigate a report of a domestic dispute involving weapons. When the police arrived, they saw defendant, a thirty-five-year-old male, standing next to a sport-utility vehicle (SUV) with his hands over his head, saying, "I stabbed my girlfriend; it's me you're looking for." The police observed blood on defendant's jacket, and noted he was not drunk or on drugs. The SUV's driver side window was shattered, and there was blood inside and outside of the vehicle. The police arrested defendant.

After the arrest, defendant admitted to investigators that he had lain in wait for Irene Borkin (Borkin), his nineteen-year-old girlfriend, after he learned she had attended a wedding earlier that evening and would be at the Hunter Hills Apartment complex. Defendant was angry because Borkin allegedly had an abortion and had been intimate with another man, which he stated was disrespectful. When Borkin entered the complex in her vehicle, defendant stepped into the road and approached her driver's side window in an attempt to speak with her. When she rolled down the window, she refused to talk to him but threw a cigarette in his face. He broke the window with a pipe or iron bar, causing it to shatter. Borkin crawled to the passenger seat when defendant opened the driver's door. Defendant found a bottle inside her vehicle and began to hit her repeatedly in the head with it; he also had a knife. He continued to attack her with the bottle on the pavement, continuing to hit her with the bottle's jagged edges after it had broken.

When the police arrived, Borkin was in a nearby apartment. She was observed with stab wounds, lacerations, injuries to her head, left arm, and face, blood covering her face, puncture wounds on her arm, ripped clothing, and only one shoe. Borkin went to the Hunterdon Medical Center for treatment. While at the hospital, Borkin told investigators defendant attacked her after he smashed in the window of her vehicle, beat her over the head with a bottle while holding a blade in his other hand, and stabbed her arm and tried to slit her throat. Borkin pretended to be dead so defendant would stop.

The iron bar and knife were subsequently recovered at defendant's residence. Specifically, the knife handle found at his residence was a match to the knife blade found at the crime scene, and lab results showed the blood on the blade was a match to Borkin.

In this appeal, defendant contends as follows:

POINT I: THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S CLAIM AT THE MOTION TO WITHDRAW GUILTY PLEA THAT HIS PLEA WAS NOT KNOWING AND VOLUNTARY BECAUSE HE RELIED ON MISINFORMATION AND DID NOT UNDERSTAND THE NATURE OF THE CHARGES AGAINST HIM.

POINT II: THE TRIAL COURT ERRED BY DENYING DEFENDANT'S CLAIM AT THE MOTION TO WITHDRAW GUILTY PLEA THAT HIS PLEA LACKED A FACTUAL BASIS.

Additionally, defendant further contends in his pro se brief as follows:

POINT I: THE STATE FINALLY ADMITS THAT "THERE WAS NO SLASH WOUND ACROSS THE VICTIM'S THROAT" - THE REASON FOR THE ENHANCED TERM.

POINT II: DEFENDANT OBJECTS THAT APPEAL ATTORNEYS OMITTED A PORTION OF HIS APPENDIX GERMANE TO THE CASE AND REQUIRED BY COURT RULE.

Furthermore, he asserts on page two of his brief:

Defendant's claims for relief remains the same:

(1) The Presentence Report was prepared without defendant's input.

(2) The finding of fact upon which the guilty plea is based is wholly unsupported as to result in a denial of justice.

(3) The Judge and the Prosecutor was involved in ex parte communication.

(4) The State's answer that a challenge to the preparation of the presentence report was not made in a timely manner is without merit.

(5) The State's answer that there was a factual basis for the plea is without merit.

(6) The State's answer that the defense was served the papers sent to the judge is not true.

We turn first to defendant's claim that the trial judge erred in denying his contention that the plea was not knowing and voluntary. Defendant claims he relied on "misinformation" to accept the plea and did not understand the charges against him, particularly Count One, attempted murder.

According to R. 3:9-2, a trial court should not accept a guilty plea unless it: (1) addresses defendant personally, and (2) determines by inquiry of defendant and others, in the court's discretion, that the plea is made (i) voluntarily and without any threats, inducements, or promises not on the record, and (ii) with understanding of the charge and the consequences of the plea. Among other things, this means that the judge must make sure defendant understands the possibility that a stated period of parole ineligibility may be part of the sentence. State v. Kovack, 91 N.J. 476, 484 (1982). The judge must also determine that there is a factual basis for the plea. R. 3:9-2.

If the record shows that the judge either failed altogether to ask the required questions, or that the answers elicited failed to show voluntariness, understanding of the charge and its consequences, and a factual basis, we can remand for trial or new plea. See State v. Rhein, 117 N.J. Super. 112, 118 (App. Div. 1971). We can refuse to remand if we find that the failure to comply with any of the requirements of R. 3:9-2 is harmless.

We consider a claim that the judge erroneously accepted a guilty plea to be "tantamount" to a request to withdraw a plea after sentencing, when a reversal is warranted in the event of a "manifest injustice." R. 3:21-1 requires a motion to withdraw to be made before sentencing, but allows it after sentencing to correct a manifest injustice.

A motion to withdraw a plea before sentencing should be liberally granted. State v. Deutsch, 34 N.J. 190, 198 (1961). The burden is on the defendant to show why the plea should be withdrawn. State v. Huntley, 129 N.J. Super. 13, 17 certif. denied, 66 N.J. 312 (1974). The trial court has considerable discretion in deciding such a motion, although the judge should take into account the State's interests. State v. Bellamy, 178 N.J. 127, 139 (2003); State v. Luckey, 366 N.J. Super. 79, 87 (2004).

But where the plea is part of a knowing and voluntary plea bargain, defendant's "burden of presenting a plausible basis for his request to withdraw . . . is heavier." State v. Huntley, supra, 129 N.J. Super. at 18. A voluntary plea should generally not be vacated absent "some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). Of course, a motion to withdraw a plea after sentencing should be granted only to correct a manifest injustice. R. 3:21-1; State v. Fischer, 38 N.J. 40, 48 (1962); Deutsch, supra, 34 N.J. at 198.

Here, defendant seeks to withdraw his guilty plea because allegedly he was unaware of certain information, namely, that medical records failed to establish that Borkin's throat was cut. Instead, defendant argues that he relied upon the State's misinformation that Borkin's throat was cut in accepting a plea. He states he would not have pled guilty if he knew the evidence did not support a claim that Borkin's throat was cut or slashed. Moreover, defendant contends that his testimony illustrates he did not understand the attempted murder charge, but thought he was pleading to aggravated assault.

Defendant also contends that the trial judge did not "fully explore" the record of the plea hearing to determine whether defendant understood Count One at the time of his plea. In particular, defendant refers this court to Dr. Rhonda Rapps's psychological evaluation of defendant, which indicates he has an auditory processing problem:

While conversational English is fairly good, it became quickly apparent that his responses were often tangential or unrelated to the questions being asked. This difficulty was obvious even after I reworded and simplified the questions. Mr. Canas continued to have problems and experienced confusion even when questions were translated into Spanish. At times, it was still necessary to reword Spanish questions several different ways.

Expressive language is definitely better than receptive, and I suspect that he suffers from an auditory processing problem. Also, Mr. Canas has trouble reading both English and Spanish. This may be related to the fact that he has very little formal education and/or that he has a learning disability.

Furthermore, at the plea hearing defendant testified he did not remember everything about the incident. He stated that he "was very angry at her for what she had done, but at one time I tried to harm her." Also, defendant contends that his reluctance to enter a plea indicates his plea was not knowing and voluntary, but rather a product of his confusion.

The State, on the other hand, first notes that defendant did not raise the above issues in his motion to withdraw his guilty plea, and it claims that his failure precludes him from raising them now. See R. 1:7-5; R. 2:10-2. The State contends that defendant's request for clarification of Count One undermines the assertion he did not understand the plea, rather than providing support for the contention that he was confused. It is well-settled in New Jersey that a plea must be entered into knowingly and voluntarily. State v. Simon, 161 N.J. 416, 443 (1999) (quoting State v. Crawley, 149 N.J. 310, 318 (1997)). This proposition is codified in R. 3:9-2, which states, in part:

A defendant may plead only guilty or not guilty to an offense. The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea. In addition to its inquiry of the defendant, the court may accept a written stipulation of facts, opinion, or state of mind that the defendant admits to be true, provided the stipulation is signed by the defendant, defense counsel, and the prosecutor . . . . Before accepting a plea of guilty, the court shall require the defendant to complete, insofar as applicable, and sign the appropriate form prescribed by the Administrative Director of the Courts, which shall then be filed with the criminal division manager's office.

[R. 3:9-2 (emphasis added).]

Defendant contends that he was unaware of possible exculpatory information. If the prosecutor withholds exculpatory evidence, a plea may be considered involuntary if it is likely that the defendant would not have entered a guilty plea. Pressler, Current N.J. Court Rules, comment on R. 3:9-2 (2006); State v. Parsons, 341 N.J. Super. 448, 457-58 (App. Div. 2001). Moreover, the hearing judge need not be aware of all possible exculpatory information before accepting a voluntary and intelligent guilty plea, and counsel's failure to so inform the judge does not constitute ineffective assistance. Pressler, Current N.J. Court Rules, comment on R. 3:9-2 (2006); State v. McIlhenny, 357 N.J. Super. 380, 384-85 (App. Div. 2003), certif. denied, 176 N.J. 430 (2003).

The State has a strong interest in the finality of plea agreements. State v. Taylor, 80 N.J. 353, 362 (1979). As already indicated, a withdrawal of a guilty plea will only be granted upon a showing of manifest injustice: "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." R. 3:21-1. The court must balance public policy, which favors the finality of plea agreements, and policy considerations that disallow the deprivation of liberty except upon conviction after a fair trial or the entry of a truthful, voluntarily, and intelligent guilty plea. State v. Herman, 47 N.J. 73, 76-77 (1966). Additionally,

If a defendant represented by counsel were permitted to withdraw a guilty plea which he voluntarily and knowingly entered after his trial had started, as the defendant in this case is trying to do, the efficient and orderly administration of justice would be impeded. Criminal calendars would become increasingly congested and the State's efforts to effectively prosecute lawbreakers would be seriously hampered by the delays. It is a difficult task at best for the State to assemble its witnesses and prepare its case for a trial on a specified date; it is neither fair nor just to compel the State to repeat this procedure as to the same defendant when the first trial is terminated by the defendant's own guilty plea given freely and understandingly.

[Herman, supra, 47 N.J. at 78-79.]

This court should also note that in general, a defendant's statements made at plea hearings regarding voluntariness of the plea create a "formidable barrier" the defendant must overcome before he can withdraw his plea. Simon, supra, 161 N.J. at 444 (citing Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). "'Solemn declarations in open court carry a strong presumption of verity." Ibid.

Here, the record supports the conclusion that there has not been a manifest injustice. Defendant appeared before Judge Bartlett on September 26, 2001 to enter his guilty plea, and he signed a plea agreement and a supplemental plea form for NERA cases. Defendant's attorney noted that defendant asked him several questions before the hearing, and that he believed "it is going to be a knowing and voluntary plea." Judge Bartlett ensured that defendant's counsel explained the NERA provisions to defendant, and counsel indicated they had "discussed what it means and what the consequences are . . . ." Notably, defendant's counsel informed the judge that the plea agreements were read in English and Spanish to defendant.

Next, the court interrogated defendant directly:

Q: Is it true that you wish to plead guilty?

A: (In English) Yes, Your Honor.

Q: How old are you?

A: (In English) Thirty-six.

Q: And did you have the entire plea form interpreted for you, did somebody read it to you or explain it to you in your native tongue?

A: (In English) Yes, Your Honor.

. . . .

Q: Do you believe that you understand each provision of the plea form?

A: (In English) Yes, yes.

Q: Did you understand the questions that were asked of you in the plea form?

A: (In English) Yes.

Q: Do you understand that you're giving up your right to have a trial by jury?

A: (In English) Yes, yes.

Q: And did you provide answers that you believe were correct?

A: (In English) Yes.

Q: Do you understand that you're giving up the right to be presumed innocent unless proven guilty beyond a reasonable doubt?

A: (In English) Yes.

Q: Do you understand that you are giving up the right to testify on your own behalf or to remain silent in your trial?

A: (In English) Yes.

Q: Okay. And you're giving up the right to confront witnesses who testify - who would testify against you and to bring in your own witnesses to testify for you?

A: (In English) Yes.

Q: Okay. Do you understand that you're being charged with attempted murder, that's the charge to which you are now pleading guilty?

A: (In English) Can I ask a question?

Q: Yes, you may ask a question.

A: How come in the charges against me, is there 12, 3, 11 - 2C:11-3, that means death? I haven't killed anyone.

[Defendant's attorney]: Judge, if I may, maybe I could frame the question.

. . . .

[Defense Attorney:] My client is questioning - tell me if this is right or wrong, Carlos - that he's being charged with 2C:11-3, which is the murder statute. He is wondering why that is in Count 1, and I've explained to him that he's also being charged with 2C:5-1, which is the attempt statute. And he's being charged with attempt to cause death of another person, which is under 2C:11-3. I think he's going to ask you the same question. I think that's the understanding of the way the question that - he wants to know that - whether or not that's the proper charge for an attempted murder.

Q: Okay. Mr. Canas, you understand that nobody died as a result of your act, right?

A: (In English) Yes, yes.

Q: So, you are not being charged with murder because murder involves death. You are being charged with an attempt to murder, which is a combination of two laws. The murder law defines what you are attempting and the attempt law defines what an attempt means. Do you understand that you are being charged with attempted murder, not murder?

A: Well, now that you say it, yes, I do. Because everybody kept telling me that I killed someone, but I haven't killed anyone.

Q: No. And everybody acknowledges that there was no death involved in this case. The murder statute talks about what elements are necessary to prove murder, but combined with the attempt statute, the attempt statute defines what an attempt is. Do you understand?

A: (In English) Yes.

Q: And you're being charged with attempted murder. Do you understand that your maximum exposure under this charge is 20 years prison, plus a maximum fine, potential fine, of $200,000? Do you understand that that is your maximum exposure?

A: (In English) Yes.

Q: And has your attorney explained to you the No Early Release Act?

A: (In English) Yes, he did.

Q: And do you understand that you would not be eligible for parole under that Act until after eight and one-half years?

A: (In English) Yes.

Q: Okay. I have four pages of a plea form. They all appear to have been signed by you. The words "Carlos Canas" appear on each form. Did you sign each page of this four-page form?

A: (In English) Yes, ma'am.

Q: And does your signature signify that you agree with the contents of the form?

A: (In English) Yes.

Q: Have you had adequate opportunity to have your attorney answer all of your questions about the contents of the plea form?

A: (In English) Yes, yes.

Q: And are you satisfied with your attorney's services?

A: (In English) Yes.

Q: Did you sign the plea form voluntarily?

A: (In English) Yes.

Q: Are you under the influence of any medication today or any other substance that would impair your judgment?

A: (In English) No, no, no.

Q: Okay. So, you believe that you have a clear mind today, making this decision to plead guilty?

A: Yes.

Lastly, Judge Bartlett accepted the plea and found that defendant understood the nature of the charges and the consequences of pleading guilty. "He has had the advice of counsel, and he is pleading guilty voluntarily. He is voluntarily waiving his right to a jury trial, and he is pleading guilty without any threats having been made nor promises made to him other than those in the Plea Agreement." Consequently, the guilty plea was entered.

There was no manifest injustice because defendant indicated he understand the plea agreement, evidenced by his signatures on the forms and statements in court. These declarations are presumed to be truthful. Simon, supra, 161 N.J. at 444 (citing Blackledge, supra, 431 U.S. at 74, 97 S. Ct. 1621, 52 L. Ed.2d 136). Defendant was provided with a Spanish interpreter, who explained the plea to him in both English and Spanish. Defendant questioned Judge Bartlett about Count One, specifically, the murder statute, and indicated to her that "now that you say it, yes, I do [understand]." Consequently, it did not constitute a "manifest injustice" for Judge Bartlett to find that his plea was entered knowingly, voluntarily, and intelligently. There is no reason to disturb the finality of this plea agreement.

Instead, defendant regards his questioning of Judge Barlett as "confusion," which was "compounded by his problem with the English language and an auditory processing problem." (Db6). Defendant, however, made "solemn declarations" to the court that he understood the plea. Simon, supra, 161 N.J. at 444 (citing Blackledge, supra, 431 U.S. at 74, 97 S. Ct. 1621, 52 L. Ed.2d 136). Interestingly, defendant has not supported his own argument about his confusion and auditory processing when he submitted a pro se brief to this court, which further illustrates that he understands and speaks English.

Particularly, defendant raises the possible auditory processing problem indicated in his psychological evaluation, but the record does not reflect that his competency to plead was ever raised. Judge Bartlett's interrogation of defendant illustrated that he understood he was forfeiting certain constitutional rights, and that he had a "clear mind." Moreover, defendant stated that he was satisfied with his attorney and had been counseled about the plea agreement. The Judge asked him if anybody had threatened him to plead guilty, and defendant responded, "No, no, but I was counseled."

Additionally, defendant claims that "because he was unaware that the proofs in his case did not support that the victim's throat was cut, he could not enter a knowing and voluntary plea. The medical records do not support that the victim's throat was cut or slashed." The State, on the other hand, submits that information about Borkin's injuries are immaterial to a true assessment of the nature of the charges and the consequences of defendant's plea. The State contends that Borkin's medical records indicate she suffered serious bodily injuries that satisfy a charge of attempted murder. See N.J.S.A. 2C:11-3(a)(1), (2); N.J.S.A. 2C:5-1(a)(1), (2).

In State v. McQuaid, 147 N.J. 464, 487 (1997), the Supreme Court of New Jersey stated that, "[m]isinformation provided to a defendant that is not material to the decision to plead guilty does not render a plea involuntary." The Court noted that if a defendant does not "'correctly assess every relevant factor entering into his decision', this will not automatically render his plea involuntary or unintelligent." McQuaid, supra, 174 N.J. at 488 (quoting Brady v. United States, 397 U.S. 742, 756-57, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970)).

Admittedly, the State indicates that "the record reveals that no discussions were held regarding the specificity of the victim's injuries." Defendant, however, indicated to the Assistant Prosecutor at the hearing that he intended to kill Borkin.

Q: Mr. Canas, you said that early on that at some point you were very angry at Irene when this incident occurred, is that right?

A: (In English) Yes.

Q: And at some - and you said at some

point, you were angry enough - I think you said you were angry enough that you were - it was your purpose to kill her if you could, but you didn't.

A: I - yes, at the moment - at the

time, yes, because I was in great pain for the child we have lost.

Q: So, there was a moment, at least, during that time when you wanted to do that, right?

A: Yes, I was feeling terribly and I'm human. It was a wrong judgment.

Clearly, although the medical records do not support the claim that Borkin's throat was cut, the absence of such evidence does not mean that defendant's plea was not knowing and voluntary. Defendant indicated his intent to kill, and regardless of whether Borkin's throat was cut, defendant acknowledged that a bottle or pipe could have caused death.

Q: [D]uring that moment you were using a weapon of some sort, whether it was the bottle or the pipe, you were using the weapon. You don't remember using the knife, but you were using some weapon that could have caused death, but it didn't.

A: I left the bar and went to see her. And my intention, yes, it was that. But, then it changed.

Q: But, at the point when you were angry enough to kill her, you were using a weapon and you did hurt her.

A: Well, when the two of us fought, what you called a weapon, it was broken.

Q: The bottle? Right, and you agree that that's a deadly weapon, that could kill somebody, couldn't it? And you were using it on her.

A: As I said, we were arguing.

Consequently, we agree with the State's contention that the "mere fact that the knife and bottle defendant used in attacking the victim did not actually cut her throat is of no moment in light of defendant's causing these other serious injuries." Instead, defendant's criminal intent is critical to the determination of whether the State can support the charge of attempted murder. The specificity of injuries does not, however, determine whether a crime is aggravated assault or attempted murder. Borkin suffered serious injuries and defendant admitted his intent to kill. In other words, this alleged "misinformation" is immaterial to defendant's decision to plead guilty; thus, his plea cannot be considered involuntary.

We thus affirm in light of the determination that defendant's plea was entered voluntarily and knowingly. The evidence of whether Borkin's throat was slit was immaterial to defendant's decision to plead guilty and there was no manifest injustice in accepting his plea. Thus, there is no reason to disturb the finality of this plea agreement; defendant stated in open court that he understood the nature of the charges against him and the consequences of his plea.

Defendant further argues that his guilty plea lacked a factual basis so the trial court erred by denying his motion to withdraw the plea. We also reject that assertion.

Defendant submits that it was hard for him to remember the events in question and it was difficult to answer questions about it because he was very drunk during the incident. Defendant contends that the State's questions were leading, phrased such as "would you agree" or "would you acknowledge."

The State submits that there was an adequate factual basis to accept defendant's guilty plea because defendant admitted his purpose was to kill Borkin. Furthermore, the State references the colloquy between defendant and his counsel to illustrate counsel elicited an adequate factual basis.

As we have indicated, R. 3:9-2 states, in part, that the court shall not accept a guilty plea without determining whether there is a factual basis for the plea. Protective due process considerations ensure that the trial judge must elicit, knowingly and voluntarily, a factual basis from the defendant sufficient to establish all elements to support a conviction for the crime. State ex rel. T.M., 166 N.J. 319, 330 (2001); Pressler, Current N.J. Court Rules, comment on R. 3:9-2 (2006).

A defendant who pleads guilty waives constitutional protections, so the sufficient factual basis is a touchstone requirement deeply rooted in our case law that must be satisfied. State ex rel. T.M., supra, 166 N.J. at 325-26. The trial judge has an affirmative obligation to reject a guilty plea when the court is not independently satisfied that the requirements of R. 3:9-2 are not met. Id. at 326. Importantly, the requirement of a factual basis protects the defendant who pleads knowingly and voluntarily, "but without recognition that his or her conduct does not fall within the charge." Ibid.

The factual basis should be on the record for appellate review if the plea is later challenged, so this court can evaluate the conditions under which the plea was entered. Ibid. The Supreme Court of New Jersey has adopted the expression that the trial court must be "'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" Id. at 327 (quoting State v. Stefanelli, 78 N.J. 418, 439 (1979) (Schreiber, J., concurring)). This determination should be made in consideration of all surrounding circumstances and in examination of the entire plea colloquy. Id. at 327.

An examination of the factual basis, in the context of the entire plea colloquy, allows a defendant to furnish the adequate factual basis as a result of leading questions. State v. Smullen, 118 N.J. 408, 415 (1990). The Supreme Court has noted that people do not like to admit their criminal acts, but an extensive discussion between the court and defendant, along with the written plea agreement signed by defendant after consultation with counsel, provides an adequate factual basis for a guilty plea. Ibid.

Here, Judge Ashrafi heard defendant's motion to withdraw his guilty plea, and found that this claim was "frivolous."

The judge, the prosecutor, and defendant's own counsel all stated on the record at the plea hearing that such a basis was satisfactorily established. Sworn statements made by defendant and reproduced from the transcripts in his own brief constituted this basis. His assertion of the defense of renunciation is untimely, and more important, implausible given the facts submitted on the record. Also, he admitted that he had the intent at one point to kill his girlfriend and that he attacked her with deadly weapons.

An examination of the plea colloquy between defendant and his counsel illustrates that Judge Bartlett had an adequate factual basis to accept defendant's plea. R. 3:2-9. Judge Bartlett stated, "At this point, I need to know the factual basis that makes you guilty of the charge to which you are pleading today, and I'm going to ask your attorney to elicit the factual basis."

Q: Okay. Carlos, do you recall the events of November 26th and 27th of 1999?

A: Partly.

Q: And do you recall seeing Irene Borkin that night?

A: Of course, it was - it's my girlfriend.

Q: And you had an argument with her that night, is that correct?

A: Yes.

Q: And you were feeling bad about things with your family and with your personal situation with Irene?

A: Of course, yes.

Q: And you were drinking that night, also?

A: Yes.

Q: And, nevertheless, you understood - you remember things even though you were drinking, correct?

A: Some things, yes.

Q: And did you, on that date, intend to cause the death of Irene Borkin, or intend to attempt to cause the death of Irene Borkin?

A: I was very angry at her for what she had done, but at one time I tried to harm her.

Q: So, the answer is, yes, at one time?

A: Yes, at the beginning.

Q: Okay. And you would agree at that point that you also attempted to cause serious bodily injury by using a weapon on her?

A: That is a very difficult question because I was very drunk, but I believe so.

Q: Do you believe that you used a bar on her at some point or on her automobile?

A: In the car, yes.

Q: You tried to hit the window where her head was next to, correct?

A: (In English) Yes.

Q: And you also agree that you used a bottle - a broken bottle at some point during an attack of Irene, on her, correct?

A: (In English) Yes.

Q: You also have reviewed discovery with me and photographs that were given to us by the State, do you recall doing that with me?

A: (In English) Yes, I did.

Q: And you recall reviewing - the discovery was police reports, lab results, and other documents that were given to me by the State?

A: (In English) Yes.

Q: And you would agree, won't you, that the State is - or would you acknowledge that the State is alleging that you used three different deadly weapons against Irene?

A: Yes.

Q: And those weapons, again, the State is saying you used were a bar, a broken bottle, and a knife. Would you agree that that's what the State is saying?

A: I do agree with the bottle, the bar, but the knife I don't completely agree.

Q: But, you agree that the State is saying that you used it? How would you remember, Carlos?

A: (In English) Yes.

Q: That's yes?

A: (In English) Yes.

Q: And you will also acknowledge that the State is saying that the knife and the bar were removed from your residence?

A: (In English) Yes.

Q: And you will also agree that the State is saying that the knife, while it was found in two pieces, meaning the handle and the knife - blade portion apart, was found to be a match?

A: (In English) Yes.

Q: And the lab results show that that knife, you'll agree, does say that Irene Borkin's blood was on it?

A: I didn't know much about that, but according to what my lawyer has said, yes.

Q: And that's based on the lab results that I reviewed with you?

A: (In English) Yes.

Q: And you've also reviewed reports and photographs concerning the wounds that Irene Borkin suffered as a result of the incident on November 26th and 27th?

A: (In English) Yes.

Q: And you saw the wounds in the photographs also, correct?

A: (In English) Yes.

Q: Would you agree that the wounds that Irene displayed in the photographs, as well as what was discussed in the reports, are consistent with wounds that would be suffered from a knife?

A: No. I think those happened with a container, with a broken bottle.

Q: Okay. So - because you don't remember using the knife, correct? But, again, if - the State is alleging that both the bottle and the knife were used, you understand that, right?

A: I do understand that, yes.

Q: And you have no reason to dispute at this point, because we don't have any other evidence controverted, that the injuries are consistent with a bottle, a knife, or both?

A: Well, I haven't discussed that much with my lawyer until now, but according to the evidence he has shown me today, I believe it could happen that way.

Q: So, it's yes?

A: I will have to accept it.

Q: Okay.

Then, at the conclusion of the prosecutor's questions, Judge Bartlett found there was an adequate factual basis for the plea and accepted it. We agree with the trial court. Defense counsel, along with the prosecutor, elicited an adequate factual basis from defendant. Although some questions were leading, defendant illustrated that he understood the proceedings and the questions. For example, defendant described his anger and articulated he had certain discussions with his counsel. Defendant revealed that at one moment he had the intent to kill Borkin and agreed that the injuries were consistent with a bottle and a knife. Also, he understood that the State alleged he used a knife as well, although he did not remember specifically using it.

There is no indication that defendant's plea lacked an adequate factual basis; there is no reason to vacate the sentence and remand for a new trial as defendant seeks. In sum, after an examination of the entire plea colloquy, and consistent with the State's interest, we find that R. 3:9-2 was satisfied.

We have carefully considered, in light of the record and the applicable law, each of defendant's remaining contentions on appeal. Because we are satisfied that none of those contentions is of sufficient merit to warrant discussion in a written opinion, we affirm without further written opinion. R. 2:11-3(e)(2).

 
Affirmed.

Later, defendant stated to investigators that he was intoxicated at the time of the incident, that he had been drinking at a nearby bar, and could only remember some of the incident.

Defendant does not recall using the knife during the attack.

(continued)

(continued)

30

A-2890-03T4

November 29, 2005