STATE OF NEW JERSEY v. DURVEN A. REID

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2556-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DURVEN A. REID,

Defendant-Appellant.

_________________________________________________

December 9, 2010

Submitted December 1, 2010 - Decided

Before Judges Fisher and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-12-02168.

Wilens & Baker, attorneys for appellant (Ricardo J. Rodriguez, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, defendant argues that the trial judge erred in denying his pre-sentence application to withdraw his guilty plea. Because defendant has failed to demonstrate that any of the Slater1 factors favored the granting of relief, we find no abuse of discretion in the denial of the motion and affirm.

Defendant was indicted and charged with: one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The record on appeal reveals that on September 15, 2009, defendant was offered an agreement that called for his guilty plea to second-degree endangering with the State's recommendation that he be sentenced as a third-degree offender. After being questioned at length in open court by Judge Donald R. Venezia, defendant rejected the offer. The next day, defendant agreed to plead guilty to second-degree endangering with the State's recommendation that defendant be sentenced to a flat seven-year term. Again, Judge Venezia engaged in a very thorough examination of defendant to ensure that defendant knowingly and voluntarily entered into the guilty plea and that there was an adequate factual basis for his plea.2

On the day scheduled for sentencing, defendant orally moved to withdraw his guilty plea. His counsel argued that when defendant was interviewed at the Adult Diagnostic and Treatment Center in Avenel on October 5, 2009, he asserted his innocence. As stated in the Avenel report, defendant then claimed his lawyer "let me plead guilty to a crime I didn't commit"; he also exclaimed at that time: "[w]ith God as my witness, I'm innocent." For reasons expressed in an oral opinion, Judge Venezia rejected defendant's motion and sentenced him to a seven-year prison term.

In appealing, defendant presents a single argument for our consideration:

THE TRIAL COURT ERRED IN DENYING MR. REID'S PRE-SENTENCE MOTION TO WITHDRAW HIS PLEA, WHERE MR. REID SATISFIED THE STANDARD SET FORTH . . . IN STATE V. SLATER AND WITHDRAWAL WAS IN THE INTERESTS OF JUSTICE.

We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

In Slater, supra, 198 N.J. at 156, the Court held that whether a plea may be set aside is a matter resting in the exercise of the trial court's discretion. When the request is made prior to sentencing, "courts are to exercise their discretion liberally to allow plea withdrawals." Ibid. (citing State v. Smullen, 118 N.J. 408, 416 (1990)). Notwithstanding that liberal standard, "'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.'" Ibid. (quoting Smullen, supra, 118 N.J. at 416). In other words, "'[l]iberality in exercising discretion does not mean an abdication of all discretion.'" Id. at 157 (quoting Smullen, supra, 118 N.J. at 416).

In considering whether to permit a withdrawal, judges are to "consider and balance . . .: (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. We find no abuse of discretion in the judge's denial of defendant's motion.

As noted above, Judge Venezia carefully examined defendant at great length at the plea hearing. Defendant continually acknowledged throughout that hearing that he understood what he was waiving and the potential consequences of his guilty plea. Defendant also presented a thorough factual basis for his guilty plea. In contrast, in seeking withdrawal of his guilty plea, defendant provided no sworn testimony or sworn statement and relied only on an unsworn hearsay statement contained in the Avenel report. Even if the vehicle in which this argument was sufficient, defendant's apparent change of mind, without further elaboration, does not present an adequate basis for a withdrawal of a guilty plea. Id. at 157.

The facts relating to the second Slater factor also do not support defendant's argument. Although defendant asserted in the trial court that he was frightened by the consequences when he accepted the plea agreement, he repeatedly acknowledged throughout Judge Venezia's thorough voir dire on September 16, 2009, that his attorney answered all his questions, that he was satisfied with his attorney's services, and that he was not forced, threatened or coerced. Again, defendant's unsworn claim of fear is insufficient to sustain defendant's burden in seeking withdrawal when compared to the judge's painstaking voir dire, during which defendant repeatedly insisted he was freely and voluntarily pleading guilty.

The third Slater factor also tilted in favor of denial of the request to withdraw because the guilty plea was a product of an agreement with the State that was of great benefit to defendant because it spared him the risk of a far greater prison term if convicted.

And application of the fourth factor further weighs against permitting withdrawal because of the victim's age, the circumstances of the crime, and the passage of time. Here, the victim was abused when she was between the ages of five and seven, she was first interviewed about the crime when she was nine, and she is now fourteen-years old. The State's case might very well be negatively-impacted by the passage of time and the tendency of memories to fade.

1State v. Slater, 198 N.J. 145, 157-58 (2009).

2In later proceedings, the judge noted that the voir dire that took place on September 16, 2009, lasted for fifty-two minutes.