On appeal from the Superior Court of New Jersey, Law Division, Essex County, 2002-6-2346.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and C. S. Fisher.
Following the defendant's guilty plea to a single count of endangering the welfare of a child and imposition of a negotiated five-year non-custodial sentence of probation, defendant unsuccessfully moved to withdraw his guilty plea. On his direct appeal following the denial of his motion, we remanded the matter to permit defendant to testify and supplement a certification in which he had claimed to have pled guilty (1) for fear of the charges and sentence he faced as a result of allegations involving the victim, a cousin, and the fact his sister was prepared to testify and give testimony under N.J.R.E. 404(b), and (2) because of "the total lack of preparation for trial" by his attorneys. Defendant now raises 17 point headings in challenging the continued denial of his motion to withdraw on the remand.
We remanded to permit defendant to testify and supplement the certification in support of the motion so that defendant's credibility could be evaluated together with that of the other witnesses at the hearing on the motion. On the remand and before us, defendant continues to insist his attorneys pressured him into pleading guilty, told him he would spend "either 20 or 30 years in jail," and that they were not prepared to present a defense, which resulted in the decision to enter the plea. Defendant testified that if he went to trial with his attorneys, he "didn't have a fair chance of winning the case."
While the motion was made before sentencing, see R. 3:21-1, we now have findings by Judge Giles following the testimony of all witnesses, including the defendant on remand, and we find no abuse of discretion in denying the motion. See State v. Smullen, 118 N.J. 408, 416 (1990); State v. Luckey, 366 N.J. Super. 71, 87 (App. Div. 2004). Our remand opinion did not preclude Judge Giles from doing anything other than hearing from defendant, and irrespective of whether the sister's unavailability two years after the plea is relevant in balancing the factors as they stood at the time of the motion, the judge did not rely on irrelevant facts in denying the motion. Nor did he have to ignore the testimony of trial counsel. The hearing was to be "continued" on the remand, and defendant's testimony was to be evaluated together with the testimony of the other witnesses.
The fact defendant gave the second attorney $15,000 on the eve of trial and stopped payment after the plea, suggests that he didn't want to pay for a trial. The stopped payment does not provide conclusive proof that counsel wrongfully pressured him into pleading guilty, as opposed to defendant so deciding after seeing the victim and his own sister in the courtroom on the day of trial. This would not have been a long or complex trial, and counsel managed to secure a very favorable negotiated plea, after the cut-off date, in light of the fact there were two witnesses present and prepared to testify against him. Defendant asserts that we ordered that only defendant be permitted to testify, but also asserts it is "deafening" that trial counsel did not respond to defendant's testimony or provide discovery requested by his new counsel. Having asserted a claim of ineffective assistance of counsel, his new attorney could have subpoenaed prior counsel. State v. Deutsch, 229 N.J. Super. 374, 389 (App. Div. 1988) (concurring opinion) (citing exception to attorney client privilege). But both prior counsel had already testified on the original motion to withdraw the guilty plea. Mark Fonte, in fact, testified as follows:
Judge, I think it ― it should be clear, the record should be clear. Mr. Della Rosa was Mr. Murphy's client. At the outset, during the course of these proceedings.
Mr. Murphy and I share offices; we are both criminal defense lawyers. Both former prosecutors. I have been practicing criminal law I think 15 years. He's senior to me in terms of age and experience. He has been practicing 20 years ― or more.
So, in terms of the ― what Mr. Krauss calls some type of discrepancy, there's no discrepancy. We are ― we are both criminal defense lawyers, we both came in here on the date of the plea, October 7th, 2003, prepared. We came in prepared to confront the 404B motion and hearing. We came in prepared to pick a jury. That's not in dispute.
On the date ― on that day, October 7th, 2003, Mr. Della Rosa had met with me, had met with me thoroughly, prepared with me before we came in. We came into this courtroom.
Mr. Della Rosa saw the witnesses who flew in from California present in the courtroom. Mr. Della Rosa saw the victim in this case. Mr. Della Rosa knew the state was ...