On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-07-1563.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2009
Before Judges Axelrad and Sapp-Peterson.
After being indicted for first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3), defendant, in a separate and unrelated indictment, was charged with third-degree eluding, N.J.S.A. 2C:29-2(b), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and second-degree possession of a weapon by a convicted person N.J.S.A. 2C:39-7. As part of a negotiated plea, defendant pled guilty to the first-degree robbery and third-degree eluding charges in the two indictments. In exchange for the guilty pleas to these two offenses, the State agreed to recommend a thirteen-year sentence on the robbery charge with an eighty-five percent No Early Release Act (NERA) period of parole eligibility, along with a five-year period of parole ineligibility and a five-year concurrent custodial sentence on the eluding offense, and the dismissal of the remaining charges contained in the two indictments, together with appropriate fines and penalties.
When defendant appeared for sentencing nearly three months later, his attorney advised the court that he had been contacted by defendant's family, who requested that he make an application to withdraw defendant's guilty plea, which defense counsel believed he ethically could not do, given the likelihood that he would be a witness in any plea withdrawal proceedings. He also advised the court that two different attorneys had reached out to him, one a week earlier and another within two days of the scheduled sentencing. The first attorney told him that a conflict of interest prevented him from filing the plea withdrawal motion, while the second attorney indicated that he wanted to make a request for an adjournment of the sentencing on behalf of defendant but was unavailable to appear in court at that time due to a scheduling conflict. Additionally, defense counsel advised the court that defendant had expressed what counsel characterized as "extreme displeasure with going forward to sentencing today." Defense counsel then requested a two-week adjournment of the sentencing in order to permit defendant's new attorney to appear.
Defendant personally addressed the court and said that he never wanted to plead guilty and had in fact previously announced to the court his desire to go to trial. He explained that his attorney advised him that if he did not "take this deal . . . that [the court] was going to lock [him] up and revoke [his] bail and that's why [he] took the deal." He shared with the court the fact that his wife had just given birth to their child and he was the sole source of support for the two of them. He also reported to the court that on "the day I signed the deal, I hired an attorney right after that, Mr. Leonard, to take the plea back." The State opposed the adjournment request.
The court denied the adjournment request, finding that defendant's objections were nothing "other than a change of mind, the pleader's form of buyer's remorse." The court concluded that defendant pled guilty to the charges knowingly and voluntarily with a full understanding of the consequences of his plea, and proceeded to sentence him in accordance with the plea agreement. The present appeal followed.
Appellant raises the following points for our consideration:
ENTRY OF COERCED PLEA AGREEMENT BY DEFENDANT WITH INADEQUATE LEGAL COUNSELING AND UNDERSTANDING REQUIRES VACATION OF THE PLEA WHERE IT WAS NOT KNOWINGLY AND VOLUNTARILY MADE.
UNDER THE RECENT SUPREME COURT DECISION, STATE V.  SLATER, [198 N.J. 145] (2009)[,] INTERESTS OF JUSTICE AND REQUISITE ANALYSIS REQUIRE VACATION OF PLEA.
In addition to the brief filed on his behalf, defendant filed a supplemental letter brief in which he ...