On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-08-1188.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges Miniman and Waugh.
Defendant Louis Corradi, III, appeals his conviction on one count of third-degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a). The conviction was based upon a guilty plea that he sought unsuccessfully to withdraw prior to sentencing. Because we determine that the motion to withdraw the guilty plea should have been the subject of an evidentiary hearing, we vacate the order denying defendant's motion to withdraw his plea and remand to the Criminal Part for further proceedings.
Corradi was arrested on June 16, 2006, based on allegations that, at some time between December 21, 2004, and March 21, 2005, he engaged in unlawful sexual activity involving a four- year-old girl. The activity was alleged to have taken place at the home of the victim's family while Corradi was a visitor there.
Middlesex County Indictment No. 06-08-1239, returned August 25, 2006, charged Corradi with first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a) (Count 1), and second- degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(b)(4) (Count 2). The indictment was based upon the testimony of the investigating officer, who testified that Corradi had admitted to one instance of sexual assault, and what was apparently a videotape of an interview with the victim, in which she stated that there were multiple instances of sexual contact. The text of the video was not transcribed as part of the transcript of the grand jury's August 18, 2006, session, when the case was first presented to the grand jury, and is not part of the record on appeal.
The matter was presented to a grand jury again on July 26, 2007. We cannot discern from the record why the case was presented a second time, although we note that a reference to the taking of pictures in the second count of the initial indictment is not contained in the superseding indictment and that the second indictment added an additional count. At the July 2007 grand jury session, the assistant prosecutor played something for the grand jury that was described generally as "previously presented testimony." Whether it was the interview with the victim or the recording of the investigator's grand jury testimony from 2006, or both, is not clear from the record.
Middlesex County Indictment No. 07-08-1188, was returned August 2, 2007. It superseded the first indictment and charged Corradi with first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a) (Count 1); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b) (Count 2); and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24- 4(a) (Count 3).
At some point prior to December 4, 2007, the State made a plea offer under which Corradi would plead guilty to count three of the new indictment and the State would recommend a four-year term of incarceration, to be served concurrently with any term for violation of his federal probation. Corradi accepted the offer and appeared in court on December 4, 2007, with his then attorney. As of that date, Corradi's motion to dismiss for speedy trial violations and his motion to suppress his statement pursuant to Miranda*fn1 had not been heard. Those motions are not part of the record on appeal.
The plea judge went over the terms of the plea and questioned Corradi about his understanding of the plea and the various rights he was giving up by pleading guilty. During the course of that discussion, Corradi's then attorney stated: "My client has said if he is incarcerated he is going to commit suicide, Judge." The plea judge responded by pointing out that Corradi had "only a couple of years to go."
The following exchange took place when the plea judge asked Corradi if he understood that he was giving up his right to a jury trial.
[THE COURT]: And by pleading guilty you're not going to have your jury trial. Do you understand that, sir?
[DEFENDANT]: Yes, your Honor.
[THE COURT]: Is that okay with you?
[DEFENDANT]: In light of the circumstances I have to say yes.
[THE COURT]: Okay. Is anyone forcing you to plead guilty?
[DEFENDANT]: No one is forcing me, your Honor, but I'm just making this decision because of the fact that, with all due respect to the Court, I don't believe I would be able to obtain a fair trial, your Honor.
[THE COURT]: Is anyone threatening you to plead guilty?
[DEFENDANT]: No, your Honor.
Immediately following that exchange, the plea judge asked about the factual basis of the plea and the following exchange took place.
[THE COURT]: You're pleading guilty because you are guilty?
[DEFENDANT]: No, your Honor.
THE COURT: All right, so I am not going to be able to get a factual basis.
[DEFENSE COUNSEL]: All right.
Are you pleading guilty because you're guilty?
THE DEFENDANT: I don't know how to --
[DEFENSE COUNSEL]: There is only one way to answer, yes or no, you're entering a plea. So the answer is yes unless you want to go to trial?
THE DEFENDANT: I am aware that I just fully vacated my attorney, but I am just trying to convey the right point to the Court so the Court understands where I'm coming from.
THE COURT: I know you're reluctantly pleading guilty but the thing is if you go to trial and you're found guilty you are going to get a substantial sentence. This sentence is a very -- I mean, the prosecutor here is very fair. The proofs are pretty, are very strong in terms of the statement given which I haven't ruled on and what the little girl said to the mother, to the father and to the investigator. And it is alleged on at least one occasion, right, at least one occasion that you put your mouth near her female private area and that would have to be for sexual gratification.
[ASSISTANT PROSECUTOR]: Yes.
THE COURT: Sexual gratification, so that is what you have to, in other words, if you did that that is ...