On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-05-0520-1.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2008
Before Judges Parrillo and Baxter.
Following a one-count indictment charging fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(3), defendant, Roberto Jimenez, pled guilty to the charge. On the scheduled date for sentencing, without benefit of a formal motion, defendant sought an adjournment in order to allow recently retained new counsel to review discovery and determine whether further application for withdrawal of his guilty plea was indicated. The court denied the verbal request and sentenced defendant, in accordance with the plea agreement, to a two-year non-custodial probationary term, subject to supervision under Megan's Law, N.J.S.A. 2C:7-1 to -21. Defendant appeals, and we affirm.
Briefly, by way of background, at time of guilty plea on June 27, 2006, thirty-year old defendant admitted under oath that on October 23, 2005, while at home, he attempted to engage in non-consensual sexual contact with N.D., who was sixteen years old. According to defendant, he got on top of her on the bed and tried to touch her breasts against her will. N.D. tried to push defendant away and she eventually succeeded. Defendant acknowledged his actions were degrading to the victim and occurred while N.D. was under his care and supervision, since the girl's mother was in the hospital and her father was out-of-state.
In addition to providing a factual basis for the guilty plea, defendant acknowledged that he had sufficient time to consult with his attorney, was satisfied with his services, understood the proceeding, and entered his guilty plea freely and voluntarily. Following his guilty plea, defendant also admitted his guilt to the probation officer preparing his presentence report.
Approximately four months later, on October 20, 2006, the day before his scheduled date of sentencing, defendant retained new counsel. The following day, at sentencing, defendant, through new counsel, and without benefit of either a formal motion or a proffer, requested an adjournment to allow his attorney to review discovery and the transcript of the guilty plea hearing in order to further determine the propriety of moving to withdraw defendant's guilty plea. In support of the oral request, counsel claimed there was a witness, to whom he had not yet spoken, who supposedly could provide information favorable to the defense.
In requiring some minimal proffer, the judge allowed a brief intermission for counsel to confer with defendant. During the ensuing two-hour "lunch break," defendant apparently told counsel he had been pressured into pleading guilty. Also, according to counsel, a witness, Madeline Durante, who had previously accompanied the victim to the police station on November 23, 2005 to report the crime, may have relevant information. Supposedly, this witness was now denying the incident could have occurred and alleging the victim had coerced the testimony of another child to support her accusation against defendant. However, despite the opportunity afforded counsel, he was still unable to offer anything more specific than the vague, generalized allegations reported. Counsel failed to provide any details about the witness' version and, therefore, could not ascertain the credibility thereof. Nor did he or the witness ever review the victim's statement in the matter. In fact, counsel not only failed to appear in court after the lunch break, but apparently represented that defendant's original counsel would handle defendant's sentencing.
In ultimately rejecting the adjournment request, the judge noted:
This is completely vague and I can't even follow it, especially you, Mr. Fernandez [(new counsel)]. You don't have a lot of information. I can't even follow you.
The court continued, reiterating its conclusion that there were no grounds for withdrawal of the plea, even if a formal motion had been made:
Quite honestly, and I'm not being critical of Mr. Fernandez, I know he's in a difficult position and didn't have discovery, but it was basically relying on what defendant may be ...