On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 05-07-1598.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on December 3, 2008
Before Judges Rodríguez and Waugh.
Defendant Hjalmar Pinto appeals his conviction, after a guilty plea, for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and :15-1, as well as the resulting eight-year sentence of incarceration with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We reverse and remand to the trial court for further proceedings consistent with this opinion.
We discern the following facts from the record, primarily from Pinto's testimony at the plea hearing on February 6, 2006.
On March 12, 2005, Pinto went for a ride to Asbury Park with four individuals: Anthony Pate, Luis Morales, German Lopez, and Carlos Rosajio.*fn1 Of the four, Pinto was acquainted only with Rosajio. According to Pinto, Rosajio told him that he needed his assistance in construction repair.
Rosajio told Pinto that he knew of a brothel and recommended a Cuban woman there. Pinto, Rosajio, and the others drove to the brothel. Rosajio directed Pinto to call him on his cell phone to let him know whether the Cuban woman was at the brothel. Pinto determined that she was not there, but decided to use the brothel's services. After he called Rosajio, Pinto went "into one of the rooms with one of the women."
While still inside the room, Pinto heard a lot of noise. When he came out of the room, he saw that the men who had brought him there were inside the brothel, wearing masks, and carrying guns. According to Pinto, he did not know about their plan to rob the brothel until after he came out of the room.
Pinto saw the four men trying to control the brothel owners and patrons by tying their hands with plastic, putting duct tape on their mouths, and confiscating their cell phones. He then observed Lopez take the owners to the second floor. The robbers threatened the owners with blow torches and guns to force them to disclose the location of their cash.
Morales, Rosajio, and Pate began fighting with a patron who resisted them. As a result of the fight, there was a lot of blood on the living room floor. Rosajio directed Pinto to clean up the blood. Pinto complied with his direction. Rosajio then ordered Pinto to watch the door to ensure that no one entered. Pinto again complied with the direction.
On July 13, 2005, Pate, Morales, Lopez, Rosajio, and Pinto were indicted and charged with: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and :15-1 (count one); seventeen counts of first-degree robbery, N.J.S.A. 2C:15-1 (even-numbered counts two through thirty-four, inclusive); seventeen counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (odd-numbered counts three through thirty-five, inclusive); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count thirty-six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count thirty-seven); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count thirty-eight); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count thirty-nine).
On February 6, 2006, Pinto agreed to plead guilty to a single count of second-degree conspiracy to commit robbery, with the understanding that the State would dismiss the remaining counts and recommend eights years of incarceration with an eighty-five percent period of NERA parole ineligibility. Pinto agreed that he would testify "truthfully" if called at any trial involving the co-defendants.
At the plea hearing, Pinto had an interpreter. He testified that he had attended some medical school in Bolivia. He was questioned extensively as to the voluntariness of his decision to accept the plea, his understanding of its terms, including the sentence, and his understanding of his right to a trial. Although he denied any prior knowledge of the ...