STATE OF NEW JERSEY v. EDGARDO E. CUEVAS

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3518-16T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

EDGARDO E. CUEVAS, a/k/a
WILLIAM GRACIA, JOSE
MALDONADO, JOSE RIVERA,
and WILLIAM GARCIA,

     Defendant-Appellant.
_____________________________

                   Submitted October 31, 2018 – Decided December 12, 2018

                   Before Judges Koblitz and Currier.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No.15-09-0751.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Al Glimis, Designated Counsel, of counsel
                   and on the brief).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Ali Y. Ozbek, Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Edgardo E. Cuevas appeals from his convictions for second-

degree robbery,  N.J.S.A. 2C:15-1(a)(1); third-degree aggravated assault,

 N.J.S.A. 2C:12-1(b)(7); and fourth-degree criminal mischief,  N.J.S.A. 2C:17-

3(a), after pleading guilty without a plea agreement on the first day of jury

selection. We reverse because defendant was denied effective assistance of

counsel, causing his original attempt to plead guilty with a plea agreement to be

rejected.   We reverse and remand to the judge.        A new attorney shall be

appointed to represent defendant. If defendant chooses to plead guilty, his

maximum exposure shall be eight years, subject to the No Early Release Act

(NERA),  N.J.S.A. 2C:43-7.2, as previously offered by the State.

      On April 21, 2015, at approximately 4:00 p.m., defendant entered Tony's

Jewelers in Clifton, New Jersey and stole gold chains.          A fight between

defendant and the store owner ensued where defendant punched the owner

several times and jumped onto a glass countertop, breaking it. Defendant left

the store with at least two stolen necklaces, which were later found on his person

with hypodermic needles.




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                  I. The November 10, 2015 Guilty Plea Attempt

      A private attorney appointed by the Office of the Public Defender to

represent defendant (pool attorney) appeared on behalf of defendant. 1

Defendant came before the judge to plead guilty to second-degree robbery. The

remaining counts in the indictment were to be dismissed by the State. The State

had agreed to a maximum term of eight years, subject to the NERA eighty-five

percent parole disqualifier. During a sidebar discussion, however, defense

counsel informed the judge that defendant refused to sign the guilty plea forms.

When the judge asked defendant if he rejected the plea offer, defendant

responded:2

              THE DEFENDANT: No, I didn't reject the offer.
              All I said to my lawyer, I talked to my lawyer, but every
              time I talk to him it's a big deal. And when I came
              Friday and I talked to him, and I say can I talk to the
              Judge because I would like to change my lawyer,
              because I feel like he not giving me a fair one, because
              every time we go to the court -- I know I commit a

1
   The Public Defender shall "[m]aintain one or more trial pools of lawyers who
shall be available to serve as counsel on a case basis as needed"; and "[e]ngage
counsel from said trial pools on a case basis as may be necessary for the proper
performance of the duties of the office and compensate them for their services
. . . ." N.J.S.A. 2A:158A-7(c) to (d). It must "divide the case workload of the
office between the professional staff and the trial pool or pools." N.J.S.A.
2A:158A-9.
2
  Throughout this opinion, we reproduce the transcript precisely as written,
without modification, except where indicated.
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            crime. I did something that I was not supposed to do.
            I admit that. I'm not saying I'm innocent.

            THE COURT: Okay.

            THE DEFENDANT: But I ask him, can you help me
            get my lawyer, because the crime I commit is not that
            serious to get 8 years 85. But I'm not he[re] telling
            people to do what they've got to do. But they got to do
            their job. Every time --

            [DEFENSE COUNSEL]: Judge, you know what?

            THE DEFENDANT: Every time that I talk to him--

            [DEFENSE COUNSEL]: Mr. Cuevas --

            THE DEFENDANT: -- it's like I don't get nothing.

Defense counsel stopped defendant and detailed on the record his efforts:

            I visited this man multiple times in the jail. In fact, first
            blush he said that he was acting in self defense. I was
            able to retrieve copies of the video, four different
            angles inside the jewelry store, and each time it looks
            like my client is trying to be a customer, and when the
            -- the owner turns his back to open a case behind the
            counter, my client is seen lunging across the countertop
            reaching and grabbing a handful of what looks like
            some necklaces, at which point the store owner reaches
            over, sees him and hits his arm down, and then a fight
            ensues. Trays get knocked over, et cetera.

            I explained to my client all the State has to do is roll
            that video tape and by using force in a theft, perpetrated
            upon this owner of the store, it qualifies for a second-
            degree robbery. And I've gone over this with my client
            multiple times and he has a prior record.

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              Now, this is the first time I'm hearing that he wants a
              new lawyer. If he wants a new lawyer --

The following exchange then took place between defendant and defense counsel:

              THE DEFENDANT: I told you that Friday.

              [DEFENSE COUNSEL]: Well, then you never went
              to --

              THE DEFENDANT: And you came and told me, no --

              [DEFENSE COUNSEL]: Sir, I'm --

              THE DEFENDANT: -- you're going to go to trial.

              [DEFENSE COUNSEL]: -- speaking now.                I'm
              speaking and you hold your tongue.

              THE DEFENDANT: I'm not your son --

              [DEFENSE COUNSEL]: You're not my son, you're my
              client. And if you want a new lawyer --

              THE DEFENDANT: That is clearly --

              [DEFENSE COUNSEL]: If you want a new lawyer, go
              hire one.

Defense counsel then informed the judge that while filling out the plea forms,

defendant accepted his guilt; however, defendant would not agree on the form

that he was satisfied with defense counsel's work.

      Defense counsel expressed on the record his frustrations in dealing with

his client:

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Lastly he, and I told him, when I had spoken to him
numerous times about this case, he doesn't understand
why he can't get a 5 with 85. And I've explained to him,
I've asked numerous times to the prosecutor. And
whether the Court would consider that. And I told him
again today, that notwithstanding a good deal of the 8
with 85, I would still ask for the 5 or 6 or lower at
sentencing. But he just doesn't, you know, quite
honestly, he doesn't listen. He thinks he can dictate and
tell the prosecutor what he wants and I've been trying
to tell him that's not the way it works. I've been
assigned to him. If he doesn't like my work, and I've
got to tell you anybody that has been assigned to me,
and this Court knows, from my experience and is signed
in the jail, they love having me because I fight hard for
my clients.

This client doesn't seem to get it. He likes to cast
aspersions on everybody else, except what he did. I am
limiting his exposure. If he goes to trial and loses on
this case, he's guaranteed at least a 20 with an 85
percent which makes 16 years in jail, for what he
considers nothing as terrible as trying to take jewelry
from a store owner, a hardworking man who has a right
to make a living.

So, he just doesn't fathom that he broke the laws of the
State of New Jersey. Now, I'm willing to put this Plea
Form through, but the way his actions are, if he wants
another attorney, he doesn't need to get representation
by the public defender. He has every right to hire one,
but he better do it immediately, because I know he
hasn't tried, he claims he has an attorney in mind, but
no one will take him. And you know what will happen?
They'll call me, and they'll ask me about them and I'll
tell them quite honesty, he's a very difficult man to deal
with because he doesn't see the forest from the trees.


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            But if I'm still his lawyer and I have to try his case, I
            will do the best I can, but I see him getting convicted.

            Now, this is a good plea offer, but if he says he's not
            satisfied with my services then, and the Public
            Defender will not reassign it, if you want to serve, try
            this case on your own, what they call pro se, I will sit
            next to you throughout the whole trial, and you do your
            own defense. That's your option.

The judge explained to defendant that he had the right to a private attorney, the

Public Defender's Office would not assign a new pool attorney, and defense

attorneys have no control over the plea agreements offered by the State.

Acknowledging that defendant and defense counsel "may not get along, [and]

may have some difficulty understanding each other . . . because [they] both have

strong personalities," the judge encouraged defendant to continue working with

defense counsel.

      The judge told defendant:

            So, at this point, you're stuck with whether or not you
            want to take the 8 or not. Now, if you are not satisfied
            with your lawyer, I cannot take your plea bargain, sir.
            I know everything that I have told you, I know [defense
            counsel] has told you before.

            So, here we are. The only other thing I can do is
            schedule you for trial, Mr. Cuevas, which you are
            entitled to. So, now you have to tell me, which one do
            you want, sir? Understanding that you are not going to
            get a new public defender.


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Defendant replied, "I never say no to the plea. Or he asks me a question, then I

said no. That's what I told him." The judge indicated that she understood but

reiterated that she could not accept his guilty plea if he was not satisfied with

counsel and would have no choice but to set a trial date. Defendant responded,

"Yeah, I understand. But I never say nothing due to the plea." Defense counsel

added, "When you told me you're not satisfied with the work I've done for you,

then I can't in good conscience put this plea through."         Defense counsel

continued:

             Because I don't know if you understand this, but I did
             go to school for this, and my license is on the line. So,
             a person like you says you don't want, you don't like the
             work I did but I put a plea through, I could be subjected
             to misconduct charges. I am not going to do that for
             you. You wanted the plea, we're filling out the forms,
             but you think you're so cute because, oh, I'm not
             completely happy with your work here, because you're
             not getting what you want. So, therefore, you just
             boxed yourself into a trial because you think you're
             trying to be cute.

             You have 14 prior convictions, five felonies. Five,
             including one armed robbery. So, you know what the
             law is and you know how it happens and what goes on.
             So, once you've made that known, now you can change
             your mind and say if you're satisfied, but I don't know
             if the Court will accept your plea today, from what's
             going on, because you seem to be wanting to always
             manipulate the system for yourself. You had ample
             opportunity to get a new lawyer and you've done
             nothing to do so. I don't see any family here with you,

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           someone you communicate with to get a lawyer, and
           quite frankly, I don't believe any lawyer would -- you
           would be able to hire a lawyer, because if you came to
           me privately, you wouldn't have enough money to pay
           me. And that's the bottom line.

           So, right now the pretrial memo was filled out last
           week, which you refused to sign. I handed it to the
           Court, I signed it and the prosecutor signed it. Now all
           the Judge has left to do is put this into the trial bank and
           give us a trial date. And that's your doing.

     The judge informed defendant that she was not going to accept his guilty

plea. The following exchange then occurred:

           THE DEFENDANT: But I was going to take the plea,
           Your Honor.

           THE COURT: No, no, no, Mr. Cuevas. I don't think
           you understand. You understand that this is not
           something that you are going to be forced into doing.

           THE DEFENDANT: No, no. I was not forced.

The judge then spoke to defendant:

           (In Spanish) I'm speaking. I am telling you I cannot
           force you to take a plea. I can't take your plea after
           you're telling me that you're dissatisfied with your
           lawyer. You understand? I can't do it. Because when
           we're done, what you're going to turn around and do is
           file an appeal and say that you're not happy with the
           sentence and that the judge overlooked the fact that you
           had indicated that you were unhappy with your plea.




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            So, in fact, I don't want to do this case twice, Mr.
            Cuevas. One time. So, the law obligates me to give
            you a trial date, okay?

The judge then informed defendant that if convicted at trial, he would face a

lengthy prison term.

      Defendant started speaking in Spanish and the judge and defense counsel

responded as follows:

            THE COURT: Okay, but you need it in English.

            [DEFENSE COUNSEL]: You have to speak English.

            THE DEFENDANT: When he asked me that --

            THE COURT: You need to speak to me in English, or
            you need an interpreter.

Defendant then stated, in English, "When he asked me if I was unsatisfied, when

I was in a table I say that. But I would never say that when I took the plea

. . . ." The judge, however, agreed with defense counsel that "his [law] license

[was] on the line" and reiterated her hesitancy to accept a guilty plea when

defendant indicated that he was not satisfied with defense counsel. The judge

tried to clarify defendant's reason for being dissatisfied:

            THE COURT: Mr. Cuevas, listen, I need to understand,
            when you said that you're dissatisfied, are you
            dissatisfied because you didn't get the plea bargain you
            wanted? Is that why you're --


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                                       10
            THE DEFENDANT: Nah.

            THE COURT:          Are you dissatisfied with his
            representation of you?

            THE DEFENDANT: No, not really. It was a lot of
            things is did I ask and something I don't understand, but
            I never mean it to tell him something like that, to go to
            court and say in court, when he asked me that.

            THE COURT: But he has an obligation to do that, Mr.
            Cuevas. Do you understand?

            [DEFENSE COUNSEL]: Yes.

            THE DEFENDANT: I understand that.

      Defense counsel added:

            So, quite frankly, Mr. Cuevas, I think you opened your
            mouth and really hurt yourself by saying that you're not
            satisfied with my work. My suggestions to you would
            be to get another lawyer, hire one, if that's the case.
            Because the public defender is going to keep me with
            you. Or you can try this case on your own and I will sit
            next to you as the law allows. But then you're on your
            own, asking your own questions and answers. So, it's
            your call. The judge is ready to give us a trial -- a trial
            date.

The judge asked defendant what he wanted to do, and defendant responded:

"Take the plea." The judge then asked to see counsel at sidebar, stated she was

unsure whether it would be appropriate to accept defendant's guilty plea, and

asked counsel if the matter should be adjourned to allow defendant time to "think


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about it." The State stated, "We're going back to . . . nine [years] after today,

Judge. He's been jerking us around . . . for lack of a better term, for a number

of days." Back on the record, the following exchange took place:

              THE COURT: Mr. Cuevas, you know what? I just
              want to clarify something with you. I'm very concerned
              about taking this plea today. If you have some sort of
              equivocation as to why, which was the discussion that
              we had earlier, why you were unhappy with the services
              given to you by [defense counsel]. I need some
              clarification from you, because if it has anything to do,
              other than the fact that you didn't like the number that
              you got, then I don't want to take this plea from you.
              Do you understand? Because I don't want it to be
              forced. I don't want there to be any indication that you
              were unhappy with his services, because all that is
              going to mean is that there is going to be a motion after
              you take a plea to withdraw, or a PCR [3] after you're
              convicted or an appeal. And we're going to be right
              back here again.

              So, I would prefer that you clarify for me what you
              meant by that. Do you understand my question?

              THE DEFENDANT: I understand your question.

              THE COURT: Okay.

              [DEFENSE COUNSEL]: So, you are unhappy with the
              number that's being offered; is that what it is, Mr.
              Cuevas?




3
    Petition for post-conviction relief.
                                                                          A-3518-16T1
                                           12
            THE DEFENDANT: One minute you had speak, I
            never could understand a lot of the things. That was the
            problem.

      Defense counsel then proceeded to clarify the confusion surrounding

defendant's dissatisfaction by establishing on the record—and defendant

agreeing—that (1) defendant received all of the discovery and discussed it with

defense counsel "multiple times"; (2) defense counsel negotiated with the State

and was able to reduce the plea offer from nine to eight years; (3) at defendant's

request, defense counsel asked the State for five years, but the State said

"absolutely not"; (4) defense counsel explained to defendant that if found guilty

after trial, defendant would face an extended term of twenty years in prison with

an eighty-five percent parole disqualifier; (5) "based upon all of the work [he

had] done" for defendant, defense counsel recommended that defendant plead

guilty; (6) at sentencing, defense counsel would ask the judge for a sentence of

less than eight years, but the ultimate sentence is within the judge's discretion;

and (7) given defendant's criminal history, defense counsel found it unlikely that

the judge would sentence defendant to less than eight years. Defense counsel

explicitly asked defendant about his satisfaction:

            [DEFENSE COUNSEL]:            So, therefore, you're
            unhappy, not with the proofs in understanding what's
            going on here, because you know what happened,
            you're unhappy because you didn't get what you felt

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                                       13
was a good plea offer, other than what you're pleading
guilty to today; is that correct?

THE DEFENDANT: Yeah.

[DEFENSE COUNSEL]: And you understand that
today was the last day to take the eight, otherwise it's
off the table and you have to go to trial, which I
suggested to you was not a viable option; do you
understand that?

THE DEFENDANT: Yeah.

[DEFENSE COUNSEL]: So, the only dissatisfaction
you have with my services is that you could not – I
could not get you lower than an eight-year term of
imprisonment; is that correct?

THE DEFENDANT: Yeah.

[DEFENSE COUNSEL]: You've gone over all the
proofs with me, you understood same, and yet, have no
questions about what the State will prove to show that
you're guilty of the charge; do you understand that?

THE DEFENDANT: Yeah.

[DEFENSE COUNSEL]: You would prefer having a
lower number, so would I, but it's not in the cards right
now. So, therefore, you know that you're voluntarily
accepting this plea to plea to eight years with 85
percent; is that correct?

THE DEFENDANT: Yeah.

[DEFENSE COUNSEL]: Has anybody forced you or
threatened you to want to enter into this plea?


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                          14
           THE DEFENDANT: No.

           [DEFENSE COUNSEL]: You're doing so of your own
           free will?

           THE DEFENDANT: Yeah.

           [DEFENSE COUNSEL]: And you're doing so, you
           know that your exposure is so great that you want to
           limit your exposure in jail; is that correct?

           THE DEFENDANT: Yeah.

           [DEFENSE COUNSEL]: So, therefore, are you now
           satisfied with the explanations I've given you towards
           this plea?

           THE DEFENDANT: Yeah.

           [DEFENSE COUNSEL]: Are you satisfied this is the
           right thing for you to do concerning your livelihood; is
           that correct?

           THE DEFENDANT: Yeah.

           [DEFENSE COUNSEL]: And are you satisfied now
           with the services I've rendered to you?

           THE DEFENDANT: Yeah.

Defense counsel believed this clarified the confusion, however, the judge

disagreed. She explained:

           I don't feel comfortable taking his plea. I just asked
           him a few minutes ago . . . if it had anything to do with
           the number, and he said, no, we just didn't understand


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             each other. I still think that this is, you know, ripe for
             appeal, and I'm concerned about taking his plea.

The State, while reiterating that an eight-year plea offer was "coming off the

table today," suggested that the pretrial conference be adjourned to a later date

since defendant "[would not] sign the pretrial forms . . . ."

      The judge held another sidebar discussion out of defendant's presence and

again expressed that she was uncomfortable accepting defendant's guilty plea.

While discussing whether adjourning the matter would be worthwhile, the judge

asked the State to leave eight years "on the table." The State responded: "Judge,

I'm not leaving the eight on the table. The eight is coming off the table today."

      Contrary to his client's expressed wishes, defense counsel advised the

judge at sidebar: "Just give us a trial date. . . . Just reject this, give us a trial

date, that's all." The judge replied, "All right."

      Back in open court, the judge explained to defendant:

             Mr. Cuevas, I understand what you just -- the
             questioning that you just went through with your
             attorney, and your desire to take the plea. My problem
             is, is that you are equivocating about why you're not
             happy with your lawyer, and for that, it's completely
             understandable, it's your choice. You're telling --
             you're telling the Court how you feel, but based on that,
             I'm not satisfied that I can take this plea at this time
             based on that.



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                                        16
             So, I'm concerned about the fact that you are
             equivocating. And I don't want to force you into doing
             anything. I don't think it's appropriate, and based on
             that I'm just going to go ahead and give you a trial date,
             Mr. Cuevas, all right?

Defendant did not appear to understand why the judge was giving him a trial

date, saying: "So that mean that I can't take my plea?"

      Defense counsel repeatedly told defendant on the record that he now had

to go to trial, adding:

             [DEFENSE COUNSEL]: So, now you have to go to
             trial. And if you're going to hire another attorney, the
             attorney is bound by the trial.

             THE DEFENDANT: I wanted to take the plea.

             [DEFENSE COUNSEL]:             But the Judge is not
             accepting it. The Judge has a right not to accept a plea,
             and it's basically because of what you said.

             THE DEFENDANT: I didn't know that. I ask you that
             because I understand a few things. It was not because
             the plea.

             [DEFENSE COUNSEL]: No, you -- we tried to clear it
             up for you and the Judge is not satisfied.

The judge asked defendant if he was still refusing to sign his pretrial

memorandum because she wanted him to sign and understand the contents of

the document. Defendant remained confused:



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THE COURT: Mr. Cuevas, are you still refusing to
sign the document? Or are you going to sign it?

THE DEFENDANT: (Speaking in Spanish) plea.

THE COURT: You can't take the plea. Let me just
clarify for the record, and although I have translators in
the room, he's indicating --

THE DEFENDANT: (Speaking Spanish).

THE COURT: One second, sir. One second.

[DEFENSE COUNSEL]: Speak English.

THE COURT: He said to me in Spanish "why can I not
take my plea?" And then he said, "I didn't understand
that. I didn't know that." So, now I'm going to respond
to you, Mr. Cuevas.

I explained to you that once you indicate that you are
not satisfied with your lawyer, it's a very important part
of the plea. That's why it's a question inside your Plea
Form.

THE DEFENDANT: Yeah, but I didn't mean it like
that, Your Honor. I didn't mean it like that.

THE COURT: But I just gave you a second op --

THE DEFENDANT:           It was because I couldn't
understand a few things.

THE COURT: Mr. Cuevas, I gave you a second
opportunity to clarify that. I asked you, is it that you
are unhappy with him based on the number that you got,
and you said no. It's that we talked about things and we


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                           18
               don't understand each other about a lot of things; is that
               not what you said?

               THE DEFENDANT: (Speaking in Spanish).              And I
               couldn't understand too much.

               THE COURT: Do you want to do me a favor and
               translate for him, please? Because you keep switching
               back and forth. You said -- repeat yourself again for
               me, Mr. Cuevas.

               THE DEFENDANT: (Speaking in Spanish).

Defendant stated, "When I'm asked the question in English, I understand but I

don't understand very well." An interpreter was finally sworn in to translate for

defendant.      The judge then questioned defendant about his need for an

interpreter:

               THE COURT: All right, Mr. Cuevas, you have never
               asked for a Spanish interpreter, right?

               THE DEFENDANT: No.

               THE COURT: Okay. But today you're telling me that
               you didn't understand what you were talking about with
               your lawyer?

               THE DEFENDANT: Because there are things I
               understand well, but there are some things I do not
               understand.

Defendant tried to clarify that he wanted to plead guilty and was satisfied with

defense counsel's work: "So, you can't take my -- you can't take the plea that I


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                                          19
wanted to take because I don't want to go to trial. When I said that I wasn't

satisfied, I didn't understand a couple of things. It wasn't because of the job that

he was doing."

      The judge then decided to adjourn the matter "for a couple of weeks" to

allow defendant and defense counsel to review the pretrial memorandum with

an interpreter present to ensure defendant "underst[ood] everything clearly."

Defendant again stated, "When I said I wasn't satisfied, I wasn't referring to the

job that he was doing, rather just some words that he was using that I didn't

understand." The judge reiterated to defendant that the eight-year plea offer was

"off the table," and again, defendant indicated he often had difficulty

understanding defense counsel. Defendant repeated, "I'll do it. I'll repeat it.

The plea is being taken away because of misunderstanding that I had?" Defense

counsel also tried to clarify any confusion:

            Judge, in all my times dealing with Mr. Cuevas, the first
            thing I asked was do you need an interpreter. He said
            no. I visited him multiple times in the jail with
            availability to have an interpreter through a phone
            bank, he never asked me nor required me to do so. I
            don't speak Spanish, and he clearly understood my
            questions and answers based upon my conversations
            and notes.          So, maybe there was some
            misunderstanding as to the question, I don't know. But
            I've been trying very hard to negotiate the numbers
            down, and as the Court is aware so is the prosecutor.


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                                        20
            So, I think it more was aligned with the numbers, as
            opposed to the proofs and my explanation of same to
            my client.

            So, I think under that, I think the Court can take this
            plea, because it's purely the numbers that he was quite
            annoyed at, not the -- not the legal review of the file.

The State argued that "[c]learly, there is no knowing and voluntarily intelligent

plea that can come from this defendant today, because he does not understand

things that are going on." The State then recommended that a pretrial conference

be adjourned and an interpreter be ordered for that hearing. The judge adjourned

the matter until December 7, 2015.

                 II. The December 7, 2015 Pretrial Conference

      At the pretrial conference, with the assistance of an interpreter, the judge

reviewed defendant's sentence exposure. Defendant tried to understand why the

plea offer was withdrawn:

            THE DEFENDANT: So, what happened last time is
            when I was here, I was about to take the plea and then
            he asked me something and then when I answered, then
            the plea offer was taken away, I want to know why.

            THE COURT: Right. Because remember when we
            talked about it back then that it's -- the Court can't take
            a plea when you're indicating that you're dissatisfied
            with your representation by your attorney. You
            understand? Remember we talked about that?



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THE DEFENDANT: Yeah, I understand. Well, then if
you're taking the plea away, why are you taking me to
trial? I never asked to be taken to trial.

THE COURT: Because that's the only other recourse
that the Court has. I can't just leave you sitting in inside
the jail, right? I can't accept your plea when you
indicate that you're dissatisfied with your lawyer,
because what will happen is, Mr. Cuevas, as soon as
you hit the jail after you take your plea, you have the
right to appeal. The Court is going to have to take back
that plea, because you indicated on the record that you
were dissatisfied with your lawyer. It's an automatic
appealable issue, you understand? So, there is no point
in me taking a plea from you when you're saying that
your rights are being violated. Because you're not
satisfied with your lawyer. You understand what I'm
saying?

THE DEFENDANT: (In Spanish).

THE COURT: Okay. So, my choice as the Court is to
do two things: If I can't take your plea because it's not
appropriate and it's not legal, the only other thing I can
do is schedule the case for trial.

I know you think that the Court is somehow punishing
you, but I'm not. I don't have a choice.

THE DEFENDANT: But how can you say that if I was
about to take the plea that was given to me?

THE COURT: You can't take a plea when you're saying
you're dissatisfied with your lawyer.

THE DEFENDANT: I explained to you that the reason
that was -- there were some words -- I do understand


                                                               A-3518-16T1
                           22
            English but there were some words that I did not, and
            that is why I said what I said.

            THE COURT: I absolutely remember that, Mr. Cuevas.
            And we were speaking English the whole time and then
            you told me you didn't understand some words and with
            that you went into -- and we went through it with the
            interpreter, and you know what? You told me the same
            exact thing, that you were still dissatisfied. You told
            me in English and you told me the same thing in
            Spanish. Do you remember that?

            THE DEFENDANT: Yeah.

            THE COURT: Okay, so, legally --

            THE DEFENDANT: I understand what you're saying.

            THE COURT: Momento. Momento. [using Spanish]
            One second. Legally I cannot accept your plea, sir. I
            know you are looking at me confused and you think that
            the Court is somehow punishing you. I am not. I am
            trying to protect your rights. Because you have advised
            me that you are unhappy with your lawyer.

            THE DEFENDANT: I understand, but what I don't
            understand is why am I being sent to trial? Because at
            trial they might give me a lot more time than was on the
            plea.

                       III. The September 13, 2016 Plea

      On September 13, 2016 the parties started selecting a jury. Defendant,

with the assistance of an interpreter, after signing the guilty plea forms, pled

guilty to all charges in the indictment, without any agreement from the State.


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                                      23
He was represented by the same pool attorney who had represented him

previously.

                                  IV. Sentencing

      At sentencing, defense counsel opposed the State's motion for an extended

prison term. Defense counsel also emphasized the dramatic difference between

the maximum term the State initially offered defendant and the extended term

the State was seeking. The State responded that previous negotiations were not

relevant to whether the judge should grant the discretionary extended-term

motion.

      The judge went through the statutory factors,  N.J.S.A. 2C:44-3, for an

extended-term sentence and, finding that defendant's prior robbery, aggravated

assault and burglary convictions qualified him, sentenced defendant as a

persistent offender.

      Defense counsel then spoke about sentencing:

              This was a non-negotiated plea. The Court has just
              gone over my client's prior history and, quite frankly,
              this Court knows me too well. I cannot even attempt to
              ask for a mitigating factor. None whatsoever. I -- in
              all honesty, I wouldn't even burden the Court to try to
              make a stretch. I can't. And I know the aggravating
              factors are overwhelming.




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                                       24
Defense counsel then asked the court to sentence defendant to ten years in

prison. The court sentenced defendant to an aggregate sentence of fifteen years

in prison, subject to NERA.

      Defendant raises the following issues on appeal:

            POINT I: THE COURT BELOW ERRED IN
            FINDING THAT IT WAS PRECLUDED AS A
            MATTER OF LAW FROM ENTERING MR.
            CUEVAS' GUILTY PLEA BECAUSE HE TOLD HIS
            ATTORNEY, WHEN FILLING OUT THE GUILTY
            PLEA FORM, THAT HE WAS NOT SATISFIED
            WITH COUNSEL'S REPRESENTATION.      THE
            COURT ABUSED ITS DISCRETION IN REFUSING
            TO ALLOW MR. CUEVAS TO ENTER A GUILTY
            PLEA.

            POINT II: THE COURT BELOW ABUSED ITS
            DISCRETION BY FAILING TO APPOINT A
            SPANISH-SPEAKING      INTERPRETER     TO
            TRANSLATE FOR MR. CUEVAS. THE COURT
            FAILED TO APPOINT AN INTERPRETER DESPITE
            THE    FACT THAT     MR.   CUEVAS   WAS
            ADDRESSING THE COURT IN SPANISH AND THE
            COURT WAS SPEAKING SPANISH TO MR.
            CUEVAS. BECAUSE THE COURT REFUSED TO
            ALLOW MR. CUEVAS TO ENTER A GUILTY PLEA
            BASED ON HIS STATEMENTS WITHOUT AN
            INTERPRETER, MR. CUEVAS WAS DENIED HIS
            CONSTITUTIONAL     RIGHTS   UNDER   THE
            FEDERAL AND NEW JERSEY CONSTITUTIONS.

            POINT III: TRIAL COUNSEL'S CONDUCT AFTER
            MR. CUEVAS SAID HE WAS DISSATISFIED WITH
            HIS REPRESENTATION CONSTITUTED PER SE
            INEFFECTIVE ASSISTANCE OF COUNSEL.

                                                                       A-3518-16T1
                                     25
            TRIAL COUNSEL'S FAILURE TO WITHDRAW AS
            MR. CUEVAS' ATTORNEY AND THE COURT'S
            FAILURE TO APPOINT AN UNCONFLICTED
            ATTORNEY TO REPRESENT DEFENDANT
            DEPRIVED HIM OF HIS FEDERAL AND STATE
            CONSTITUTIONAL RIGHTS TO COUNSEL, DUE
            PROCESS AND A FAIR TRIAL.

            POINT IV: ALTERNATIVELY, THE SENTENCING
            COURT       IMPROPERLY       CONSIDERED
            DEFENDANT'S PRIOR RECORD BOTH IN
            IMPOSING AN EXTENDED TERM SENTENCE
            AND IN DETERMINING THE LENGTH OF THE
            SENTENCE; THE COURT'S SENTENCE IS
            EXCESSIVE.

                      V. Ineffective Assistance of Counsel

      We review a defendant's claim of ineffective assistance of counsel under

Strickland v. Washington,  466 U.S. 668, 687 (1984) and State v. Fritz,  105 N.J.
 42, 58 (1987) (adopting the Strickland test in New Jersey). Under the Sixth

Amendment of the United States Constitution and Article 1, Paragraph 10 of the

New Jersey Constitution, the right to counsel entitles a defendant to the effective

assistance of counsel during criminal proceedings. Strickland,  466 U.S. at 685-

86; Fritz,  105 N.J. at 58. To establish a violation of the right to effective

assistance of counsel, a convicted defendant must satisfy the two-pronged test

articulated in Strickland by showing that (1) counsel's performance was




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                                       26
deficient; and (2) counsel's deficient performance prejudiced the defense.

Strickland,  466 U.S. at 687-88; see also Fritz,  105 N.J. at 52-53, 58.

      Under the first prong of the Strickland test, in order to show that counsel's

performance was deficient, a defendant must show that counsel's representation

was not objectively reasonable. State v. Pierre,  223 N.J. 560, 578 (2015) (citing

Strickland,  466 U.S. at 687-88). A defendant "must allege facts sufficient to

demonstrate counsel's alleged substandard performance." State v. Cummings,

 321 N.J. Super. 154, 170 (App. Div. 1999). Once a defendant has done so, an

appellate court will then view the facts asserted in the light most favorable to

the defendant. See State v. Porter,  216 N.J. 343, 353 (2013).

      A defendant must also satisfy the second prong of the Strickland test. See

State v. Parker,  212 N.J. 269, 80 (2012). A defendant must "affirmatively prove

prejudice" by showing a "reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Pierre,  223 N.J. at 583 (quoting Strickland,  466 U.S. at 693-4). "A reasonable

probability is a probability sufficient to undermine confidence in the outcome."

Strickland,  466 U.S at 694. Even if defense counsel's error is "professionally

unreasonable" a criminal judgment will not be set aside if the error had no effect




                                                                          A-3518-16T1
                                       27
on the outcome of the case. State v. Paige,  256 N.J. Super. 362, 377 (App. Div.

1992) (quoting Strickland,  466 U.S. at 691-92).

      Typically, claims of ineffective assistance of counsel are not brought on

direct appeal "because such claims involve allegations and evidence that lie

outside the trial record." State v. Preciose,  129 N.J. 451, 460-61 (1992). Though

claims of ineffective assistance of counsel "are more appropriately raised in

collateral, post-conviction relief proceedings," we may hear such a claim on

direct appeal when there is "an adequately developed record upon which to

evaluate [a] defendant's ineffective assistance of counsel claim."      State v.

Johnson,  365 N.J. Super. 27, 34 (App. Div. 2003).

      Here, defendant argues that such an adequately developed record exists

because defense counsel had a conflict of interest. We agree. Defense counsel's

conflict of interest, and his subsequent ineffectiveness, arose at the November

10, 2015 plea hearing when defendant stated he was dissatisfied with counsel's

representation. Defense counsel placed his conflict of interest on the record

when he expressed concern that he could face "ethics charges." Defense counsel

told the judge that defendant was manipulating the system and recommended to




                                                                        A-3518-16T1
                                      28
the judge, out of the hearing of his client,4 that defendant should not be allowed

to plead guilty to the favorable plea agreement.

      Counsel's representation at the sentencing hearing is another example of

the objectively inferior job he performed on behalf of his client. Counsel

represented to the court that no mitigating factors existed and "the aggravating

factors are overwhelming." The duty of defense counsel is to be a "zealous

advocate" on behalf of his or her client. Brundage v. Estate of Carambio,  195 N.J. 575, 602 (2008).     To behave as an auxiliary prosecutor is far below

acceptable standards. Thus, because defense counsel had a conflict of interest

and argued against his own client's expressed interests, the record clearly

supports Strickland's first prong in determining ineffective assistance of

counsel.


4
   We see no need for bench conferences on the record out of the hearing of the
defendant when no jury is present. See State v. W.A.,  184 N.J. 45, 48 (2005)
(holding that a defendant's constitutional right to be present at every stage of his
or her trial includes the right, when requested, to be present at voir dire sidebar
conferences); see also State v. Davenport,  177 N.J. 288, 309 (2003) (holding
that a defendant's exclusion from a sidebar conference does not violate his or
her right to self-representation "so long as the exclusion does not deprive the
defendant of meaningful participation in the content of the sidebars through his
[or her] standby counsel representative"). If the judge here had determined that
"legitimate security concerns" precluded defendant's presence at the three bench
conferences that took place during the November 10, 2015 hearing, such
concerns should have been "detailed clearly on the record." Davenport,  177 N.J.
at 309-310.
                                                                           A-3518-16T1
                                        29
      Defendant was offered a plea agreement with a maximum of eight years

in prison. Instead, he received fifteen years in prison after pleading guilty on

the first day of jury selection; a sentence that appears dangerously close to a

penalty for going to trial. See  N.J.S.A. 2C:44-1(c)(1) (stating that a guilty plea

or failure to plead guilty "shall not be considered in withholding or imposing a

sentence of imprisonment"). But for counsel's performance, the judge may well

have accepted a plea of guilty with a maximum exposure of eight years. This

satisfies the "different result" likelihood of the second Strickland prong.

                       VI. Insufficient Use of Interpreter

      Complicating the picture was the failure to provide an interpreter to

defendant at the initial hearing. Before a judge begins to speak to a defendant

in Spanish, the proceedings should be stopped until an interpreter is appointed.

"It is a self-evident proposition that a defendant who is unable to speak and

understand English has a right to have his trial proceedings translated so as to

permit him to participate effectively in his own defense." State v. Kounelis,  258 N.J. Super. 420, 427 (App. Div. 1992). A defendant does not waive "the

constitutional right to a defense interpreter . . . by mere acquiescence or

nonverbal conduct . . . ." Id. at 427-28; see also Daoud v. Mohammad,  402 N.J.

Super. 57, 59-60 (App. Div. 2008) (finding that defendant tenant "was deprived


                                                                          A-3518-16T1
                                       30
of a full and fair opportunity to be heard as a result of not having had a court -

approved interpreter from the outset").

      Finally, the judge did not allow defendant to plead guilty with an eight-

year exposure without an interpreter, but accepted a guilty plea with the same

defense counsel, and an interpreter, to a plea with no sentencing restriction ,

apparently because defendant finally signed the plea forms. Defendant received

an additional seven years in prison because he had poor representation, or

because he did not originally have an interpreter, or perhaps because the

prosecutor and defense counsel thought defendant was "trying to be cute": none

of these reasons is valid.

                             VII. Rejection of Plea

      The judge should not have rejected defendant's original plea of guilty.

This court reviews a trial court's refusal to accept a plea agreement for an abuse

of discretion. State v. Daniels,  276 N.J. Super. 483, 488 (App. Div. 1994). A

trial court abuses its discretion when, for example, it rejects a plea agreement

because it believes a defendant could be found guilty of a greater offense. See

State v. Madan,  366 N.J. Super 98, 110 (App. Div. 2004). A trial court must

exercise "sound discretion" when deciding to reject a plea agreement. Id. at 108

(quoting State v. Brockington,  140 N.J. Super. 422, 427 (App. Div. 1976)).


                                                                         A-3518-16T1
                                       31
Where defense counsel turns on his client in order to defend counsel's own

reputation, and the defendant has some language difficulty, the trial court should

ensure that a new lawyer is appointed, an interpreter is utilized, and the

defendant then has the opportunity to accept the plea agreement as formulated.

Although the State has wide discretion in offering a plea agreement, see, e.g.,

State v. Cengiz,  241 N.J. Super. 482, 496 (App. Div. 1990), annoyance with a

defendant who has some difficulty with English and a falling-out with his lawyer

is not a valid reason to withdraw an offer.

      Although the judge was clearly trying to safeguard the integrity of the

proceedings, her unwarranted rejection of the guilty plea gave the State the

opportunity to withdraw the proffered plea and subjected defendant to many

additional years in prison. We recognize that the judge was urged by defense

counsel, out of the hearing of his client, to reject the original plea, but counsel's

lack of undivided loyalty to his client was clear and the judge should not have

acceded to this urging.

      The only way to ensure defendant does not suffer from his initial lack of

an interpreter as well as ineffective counsel, is to reverse the conviction and

remand the matter so that new defense counsel may be assigned. If defendant




                                                                            A-3518-16T1
                                        32
then decides to plead guilty, he must be sentenced within the bounds of the eight-

year post-indictment plea offer.

      Reversed and remanded for further proceedings.          We do not retain

jurisdiction.




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                                       33