On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Mercer County, Indictment No. 05-04-0317.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 27, 2008
Before Judges C.L. Miniman and Lihotz.
Defendant Angel Cartagena appeals from his conviction and sentence on a plea of guilty to first-degree aggravated manslaughter in connection with the death of his two-month old son. We affirm.
The Mercer County Grand Jury returned Indictment No. 05-04-0317 charging defendant with murder, contrary to N.J.S.A. 2C:11-3(a)(2), and second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). Pursuant to a plea agreement, defendant appeared on September 28, 2005, and pled guilty to Accusation No. 05-09-0727 charging him with first-degree aggravated manslaughter in connection with the death of his infant son. The Prosecutor agreed to dismiss the indictment and recommend a sentence not to exceed twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with five years of parole supervision upon release.
At defendant's plea hearing, the judge examined defendant with respect to his understanding of the plea and its consequences. He testified that he understood the same and all of the paperwork in connection with it and testified that his plea was knowing, voluntary, and made only in exchange for the agreement placed upon the record. Defendant testified that he understood the rights that he was waiving by pleading guilty and the consequences of NERA sentencing. He was then placed under oath and testified to the following facts.
During the months of October and November 2004, defendant, his wife, and their infant son were residing with defendant's sister-in-law and her family. Between October 24, 2004, and November 13, 2004, defendant was in charge of caring for his son and during that time he shook and squeezed his baby to the extent that his son was taken to a doctor for medical attention. His son was then returned to his care. On November 13, 2004, defendant was under the influence of cocaine and Percocet and the baby woke up crying. Defendant shook his son on two occasions and then threw him onto a futon. The baby hit his head and neck where he landed. Defendant admitted at that point he may have passed out and fallen on his son, partially smothering him and causing him further injury. Thereafter, someone called 911 and defendant's son was taken to the hospital where he died. Although defendant was under the influence of drugs, he admitted that he knew what he was doing and appreciated the consequences of his acts.
Before sentencing took place, defendant moved to withdraw his guilty plea. Defendant's new counsel informed the court on March 17, 2006, that defendant had a long-standing history of treatment for psychiatric and psychological issues and that he wanted to have defendant evaluated to determine whether he had a psychiatric defense to the charge of aggravated manslaughter. He also asserted that he believed there were some communication issues between defendant and his former counsel that led defendant to believe that if he did not accept the plea offer that day any further plea negotiations would be cut off. Counsel also represented that defendant asserted that the factual basis for the plea was inaccurate and, in any event, counsel argued that the factual basis did not support a plea to aggravated manslaughter because it did not show an extreme indifference to the value of human life.
The judge noted that there was no medical documentation of a psychiatric condition and no affidavits to support vacating the plea on that basis. She then considered the sufficiency of the factual basis for the plea. First, she concluded under State v. Smullen, 118 N.J. 408 (1990), that in a case such as this asking the defendant leading questions to establish the factual basis for the plea was not impermissible. She then found that defendant's responses to those questions were made with knowledge of the charge and the significance of the plea bargain. The judge continued:
I had questioned him myself prior to getting into the factual basis and I note that [in reviewing] the plea transcript . . . he was . . . asked if he was forced or pressured, asked if he read the plea papers, asked if he had the opportunity to review them with his counsel and if his counsel answered all his questions to his satisfaction. . . . I recall, although it's not reflected in the transcript . . . at the time the plea was taken, or towards the end of it, Mr. Cart-agena was wiping tears from his eyes at one point. I do recall that. I believe that he did know what he was admitting to at the time . . . . I understand that [defense counsel] has cited State v. Huntley, he is aware that if the burden is on the defendant seeking to withdraw a plea then he must first present some plausible basis for the request. And second, he must present a good-faith basis for defense on the merits.
A plausible basis for the request, I just don't find that it exists here. Again, if the argument is because these were leading questions and he didn't know what he was saying, I don't find that that is the case and I rely on Smullen.
If their good-faith basis for the defense on the merits is that Mr. Cartagena was under the influence of mind-altering substances at the time of the incident, specifically cocaine and Percocet, again, I don't understand the argument that he could be convicted of reckless manslaughter because that requires . . . consciously disregarding the risk of death.
I also note Mr. Cartagena's response to the specific question of even though he was under the influence of cocaine and Percocet did he still appreciate the consequences of his act, was he so much under the influence that he did not ...