On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 05-04-0301.
The opinion of the court was delivered by: Coleman, R. B., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2007
Before Judges Wefing, Parker and R. B. Coleman.
Defendant J.J. appeals from a judgment of conviction entered on April 5, 2005. He was charged under Essex County Accusation No. 05-04-0301 with three counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a), three counts of second degree sexual assault, N.J.S.A. 2C:14-2b(3)(a), and two counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Pursuant to a negotiated plea agreement, on April 5, 2005, defendant entered a plea of guilty to two counts of endangering the welfare of a child, as amended to third degree, N.J.S.A. 2C:24-4(a). The State agreed to recommend a non-custodial probationary term with Megan's Law requirements and to move to dismiss all remaining counts.
Prior to the date fixed for sentencing, defendant discharged his attorney and hired new counsel. Defendant's new counsel filed a motion to withdraw the guilty plea because defendant believed he had not been advised of all the penal consequences of the plea and because the victim, defendant's daughter, had recanted her accusation against defendant. In his motion, defendant also requested a hearing under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), and claimed ineffective assistance of prior counsel. After hearing oral arguments on November 18, 2005, the Law Division judge denied defendant's request to withdraw his plea but concluded that defendant was entitled to a Brady hearing. The judge did not directly rule on the ineffective assistance of counsel issue.
On December 14, 2005, defendant moved to recuse the judge. The judge denied that motion, conducted the Brady hearing and determined that no Brady violation had occurred. Therefore, in accordance with the negotiated plea agreement, the judge proceeded to sentence defendant, to concurrent five-year terms of probation and compliance with Megan's Law. See N.J.S.A. 2C:7-1 to -19.
In the factual statement given by defendant at the April 5, 2005 plea hearing, defendant admitted under oath that he had engaged in sexual intercourse with B.Y., his biological daughter. However, in support of his motion to withdraw the plea, defendant proffered evidence that tends to contradict his admission of guilt.
Defendant was divorced from B.Y.'s mother, who had custody of the child. Beginning in August 2003, B.Y. lived with defendant periodically. B.Y. had consistent behavioral problems, and she moved back and forth between her parents' residences several times. In the summer of 2004, she moved back with defendant and his fiancée. According to defendant, his relationship with B.Y. was strained during that time. B.Y. began bringing her boyfriend to defendant's home, violating defendant's house rule against her having boys in the house. In addition, when defendant announced that he was going to marry his fiancée, the child became upset and told a friend she did not want him to marry. On September 11, 2004, defendant refused to give B.Y. money for new shoes, and when he sat down with B.Y. to discuss their problems and to discuss school issues, B.Y. reacted negatively.
On September 12, the child telephoned her mother and informed her that defendant raped her. The mother took B.Y. to the police department to make a statement. Thereafter, the child was transported to the hospital, but she left before a physician could examine her. No rape kit examination was conducted. B.Y. returned to the hospital on September 13, and the tests performed on that date were negative for evidence of genital and rectal trauma. Defendant was arrested on September 15, 2004, and as a result of B.Y.'s accusations, he was charged with the offenses included in the instant accusation.
In November 2004, B.Y. recanted her accusation against defendant. She told her mother that she had fabricated the story because she was mad at defendant. When she informed the prosecutor's office of her alleged fabrication, she was told she would be charged with perjury and that she would go to jail.
Defendant learned of the recantation in February 2005 and informed his prior counsel of this development. According to defendant, counsel did not further investigate this situation, and defendant contends he was led to believe the recantation was of no legal significance. On April 5, 2005, in spite of his knowledge that B.Y. had retreated from her ...