On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Shebell, Havey and Skillman. The opinion of the court was delivered by Shebell, J.A.D.
Defendant, William Muller, appeals from a May 30, 1990 order of the Law Division purporting to reject defendant's guilty plea to Passaic County Indictment No. 88-10-1768-1 which charged defendant with second degree manslaughter (N.J.S.A. 2C:11-4b(1)). The order directs
that the Passaic County Prosecutor's Office re-present this matter to the Grand Jury and that the Passaic County Prosecutor's Office include in the re-presentation all evidence of previous acts of violence and hostility between the defendant and the victim which would be relevant to the defendant's state of mind at the time of the killing of the victim.
Defendant's September 6, 1989 guilty plea was a retraxit plea pursuant to a plea bargain wherein the State's only agreement was that it would not speak at sentencing and would not seek a period of parole ineligibility. At the conclusion of the plea hearing, the Law Division judge stated:
I'm satisfied the defendant's offer to plead is voluntary in all respects. I'm further satisfied he fully understands the nature and consequences of the plea and I am satisfied that there is a factual basis according to his recitation of the facts.
Therefore, I'll accept the plea subject to the presentence report and presentence investigation and I'll set down October 13th for sentence.
On October 13, 1989, defendant appeared for sentencing; at that time, the court adjourned the matter for one week after receiving letters from the decedent's friends and family which he felt should be made available to both counsel. Apparently, however, the next proceeding in open court was not held until May 4, 1990, at which time the judge indicated that he was "not pleased with the indictment" and that defendant "should have been indicted possibly for a homicide [murder] or aggravated manslaughter where he would have had a much greater exposure." The court discussed the case on the record with the prosecutor, but concluded, "I'm still dissatisfied with this indictment. It should have been an aggravated manslaughter or a homicide [murder]."
It appears that between October 13, 1989 and May 4, 1990 the judge had contacted the prosecutor and requested that an investigation take place to see if the prosecutor could substantiate the allegations contained in letters which indicated that the defendant had acted violently towards his wife, the homicide victim, prior to the date of her death by strangulation. The judge explained:
I ordered the prosecutor to reinvestigate these letters because I received them after the plea. I was not privy to this before.
And when I received them, I wanted it investigated because I wasn't going to go along with a ten year sentence when this man should be facing a thirty ...