On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-02-0253.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
Defendant appeals an order of the Law Division, Hudson County, dated December 10, 2007, denying his motion to withdraw his guilty plea. That motion was filed prior to sentencing. For the reasons which follow, we reverse the order denying the motion and remand for further proceedings.
This matter involves an accusation of sexual assault made by a minor against her brother and the subsequent recantation of that accusation. Prior to December 2006, defendant and his younger sister, A.O., lived with their biological parents in West New York, New Jersey. At the time of the reported incident, defendant was twenty-one years old and employed as a police officer with the New York City Police Department. A.O. was sixteen years old.
The following facts are alleged by defendant, and corroborated by A.O., their parents, and other credible evidence in the record. Sometime prior to December 2006, A.O. asked defendant to support her in persuading their parents to let A.O.'s boyfriend move into the family residence. Defendant refused to help, and A.O. became angry with him. The following morning, she reported to a school counselor that her brother had forced her to have sex with him. As a result of the accusation, A.O. was immediately placed in foster care, and on December 2, 2006, defendant was arrested on charges of aggravated sexual assault, endangering the welfare of a child, and sexual assault. A.O.'s parents were also arrested on charges of neglect under Title 9, a fourth-degree offense. A Hudson County Grand Jury returned Indictment No. 07-02-0253 against defendant and both of his parents, inexplicably joining all charges in one indictment. All defendants entered not guilty pleas.
At a scheduled pretrial hearing on June 21, 2007, defendant met with his counsel, his parents, and co-counsel to discuss the plea offers extended by the State. Defendant alleges the State offered to dismiss the charges against his parents if he would plead guilty to count four of the indictment, second-degree sexual assault, N.J.S.A. 2C:14-2c. This offer was not placed on the record and is not memorialized by a writing. However, defendant did agree to plead guilty in the upcoming hearing and his parents' cases were adjourned for that day. Defendant proceeded to plead guilty on the record in open court and the matter was listed for sentencing. Charges against the parents were subsequently dismissed.
A short time following the entry of the plea, prior to sentencing, defendant contacted his attorney and expressed a desire to withdraw the guilty plea as he was "innocent of the crime charged." Counsel prepared the withdrawal request, we are led to believe, before A.O.'s recantation, to be submitted prior to the date set for defendant's sentencing. In July 2007, defendant attended his pre-sentence interview, during which he once again asserted his innocence to the interviewing probation officer. On August 17, 2007, defendant was required to undergo a Sex Offender evaluation conducted by a licensed psychologist, Mark Frank, Ph.D. Again, defendant asserted his innocence to the psychologist.
In September 2007, A.O. left her foster home without permission. On September 17, 2007, a private journal, kept by A.O., while in the foster care of A.P., was found by A.P. along with other articles A.O. had left behind. A.O. had written in her journal that her allegations against defendant were entirely baseless and merely fabricated in retaliation for the argument with him over her boyfriend. A.O. also told a co-foster female resident living in A.P.'s home that she had made false accusations against her brother and gave the same retaliatory reasons for doing so. A.O. alleges that early on, she repeatedly admitted to her law guardian that the accusations against her brother were baseless. She continued to assert this for months, but her law guardian indicated that he did not believe her.
On September 21, 2007, defendant appeared before the court and advised of his intent to file a motion to withdraw his plea. The matter was carried.
On October 1, 2007, Lisa Reed, an investigator hired by A.O.'s parents, took recorded statements of the foster mother, A.P. and the co-foster female resident, corroborating the aforementioned facts. On October 5, 2007, Reed located A.O. and recorded her statements regarding the journal entries and A.O.'s prior allegations against defendant. A.O. corroborated the aforementioned facts and further offered to submit to a lie detector test to prove the veracity of her recantation.
On October 19, 2007, defendant's motion to withdraw the guilty plea was heard and denied. Defendant was then sentenced on count four of the indictment for second-degree sexual assault, N.J.S.A. 2C:14-2c, as a third-degree offender for sentencing purposes, and was ...