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State v. Stuart


March 30, 2010


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-05-0701.

Per curiam.


Argued January 19, 2010

Before Judges Reisner, Yannotti and Chambers.

Defendant, convicted of one count of first-degree robbery and one count of second degree robbery, N.J.S.A. 2C:15-1b, was sentenced to life in prison without parole under the Persistent Offender Accountability Act (Three Strikes Law), N.J.S.A. 2C:43-7.1a, based on his two prior convictions for first degree robbery.


We summarize the most pertinent evidence. Sandip Kapadia, the owner of Village Stationery, a convenience store located in Clifton, New Jersey, testified that he opened the store at about 5:30 a.m. on January 17, 2004. Richard Hyle and Joseph Szczepanik, who were both frequent customers of the store, entered shortly thereafter. Also present was an elderly woman who Kapadia believed had impaired cognitive functions. There was approximately $250 of cash in the store that morning.

At about 6:30 a.m., a black male approximately six feet tall entered the store. The man was wearing a dark colored hooded jacket, which was covering his face and he wrapped the collar around his mouth. The man first approached the woman and said, "give me the money." Kapadia did not see the exchange between the suspect and the woman, but he saw the woman walk out of the store. The man then approached Kapadia at the store counter and said, "give me the f**kin' money; I have a gun; I'm going to shoot your f**king a**." Kapadia stated that he gave him whatever money was in the store. None of the witnesses saw the gun.

Kapadia testified that the gun was covered by the defendant's clothes. Kapadia reenacted the suspect's gesture, which was described by the trial court. Kapadia pulled the "sleeve of his shirt over the fist of his hand so that his fist [was] inside the sleeve." At one point, the suspect pointed his hand at Kapadia while stating that he had a gun. Hyle testified that the suspect "came in with his hand over his thing. He says this is a holdup; I have a gun . . . he had his sleeve over it, covered like this, hidden." Hyle indicated that the motion was made with the suspect's left hand. Szczepanik testified that he could not see the gun, but the suspect, "had his hand over his . . . head. And he had a coat. . . . You couldn't see . . . anything like that . . . ." He also believed that the weapon was in the suspect's left hand.

Hyle testified that as the incident progressed, he tried to leave the store, but the suspect approached him and said, "I want your money." Hyle, who was eighty-two years old, refused to comply. The suspect struck him in the face knocking him unconscious. The suspect then fled through the store's sole entrance.

Officers Michael Bienkowski and John Klementovich responded to the call at Stationery Village for an armed robbery in progress. When the officers arrived, Hyle was lying on the floor bleeding from the nose area. The officers secured the scene and obtained a description of the suspect from Kapadia.

Nearby, Officer Peter Turano responded to a call near the off ramp for Broad St. on Route 19 North. When he arrived he saw a vehicle facing the wrong way on the exit ramp. The engine was turned on and no one was inside the car. Turano discovered that the vehicle was reported stolen.*fn1 He also discovered that a jacket in the front seat of the car matched the description of clothing worn in a nearby robbery.

Philip Casasanta of the canine unit also responded to the area of the car crash. A dog was dispatched. The dog circled the surrounding area and detected the suspect hiding behind a bush approximately forty-five or fifty yards from the car. Detective John Sloth placed the suspect, who was identified as Michael Stuart, under arrest and advised him of his Miranda*fn2 rights. Stuart responded that he understood his rights. The suspect was complaining of injuries to his ankle and wrist. Based on his injuries, Stuart was transported via ambulance to the hospital.

Officer Stephen Berge, who accompanied Stuart in the ambulance to the hospital, first performed a pat-down search of Stuart. The officer reported observing "assorted currency hanging out of [Stuart's] pocket." The officer pressed the money back into Stuart's pocket and Stuart replied, "that's all of it." Berge immediately read Stuart his Miranda rights and then proceeded to inquire into what he meant by his statement. Stuart replied that "he knows he is f***ked because he's on parole."*fn3 He also informed the officer "that he obtained the cash by robbing an old man." The police eventually seized $250 from Stuart.

Officer Glenn Turba stayed with Stuart while he was in the emergency room and handcuffed to the gurney. Stuart told the officer, "I'm sorry for putting you guys out." The statement was unprompted. In response to the statement, Turba informed him that "there was no reason to apologize" and told him to "not move around too much on the bed." Stuart requested that the handcuffs be loosened because he was in a lot of pain. Turba refused to loosen the handcuffs in accordance with police procedures. Stuart stated that Turba should "be more sympathetic to his injuries . . . ." He continued, "if you had jumped off the side of the bridge and landed hard, you know, you would better understand . . . the bridge was pretty high and hitting the floor, it hurt."

During the trial, Turba testified about the remainder of his encounter with Stuart:

STATE: Did Mr. Stuart make any requests of you?

TURBA: Well, Mr. Stuart asked me at this point how the old man was.

STATE: What was your response?

TURBA: I stated that I didn't know what he was talking about.

STATE: Why didn't you know what he was talking about?

TURBA: I didn't know who was involved or what old man, 'cause I never got to the store.

STATE: Did Mr. Stuart continue to ramble?

TURBA: Well, he said, you know, the old man at the store, the one who attacked me, is he all right? And again I advised him that I didn't know. And then Mr. Stuart stated well, I guess he came after me, you know, for what I did to him, taking his money and all.

STATE: Now at this time he made a few statements to you and he's asked you questions. What did you do?

TURBA: At this point, I advised him that, you know he was given his Miranda warning, it would be in his best interest to exercise that right.

STATE: Did he exercise his right or make any further statements?

TURBA: He did go on at this point, you know? He was stripped of his clothing by the hospital employees 'cause they were prepping him. And I went though the clothing to make sure there was nothing else that may be related as far as evidence. And Mr. Stuart stated, you know, you already got all the money I took, that's it, there isn't anymore. And he said I had to stuff it into my pockets.

Detective Dan Dvorak interviewed Stuart on the evening following the incident. Dvorak recited Stuart's Miranda rights before be began the interview. Stuart indicated that he had pain in his leg and arm and that he had not been "given any pain medication as of yet at headquarters." During the interview, Stuart stated that he drove to the store in a car that he obtained in Paterson, New Jersey. He asked "the owner of the store to give him money," which the owner then did. Stuart denied ever intimating that he had a weapon or gun. Dvorak testified that when Stuart was informed that he was being charged with robbery at the convenience store, he had a surprised reaction, "stating that he had only asked for money." Stuart stated that he "short jabbed" (punched) an elderly man who was interfering in the incident. Stuart relayed that after the incident in the store, he intended to drive towards Paterson, but he became disoriented and got into a one car accident on a ramp coming from Route 19. Stuart fled the vehicle and jumped over a retaining wall and a railing, injuring his ankle and his arm.

At the beginning of the jury charge, Stuart interrupted the judge and continued the disruption, despite repeated warnings, until he was removed from the courtroom. The following is the exchange leading to his removal:

THE COURT: All right. Good afternoon, Everyone. Ladies and Gentlemen of the Jury - -

STUART: Excuse me, your Honor. Ladies and Gentlemen of the Jury, there is evidence here that hasn't been - -

PROSECUTOR: Judge, I object.

THE COURT: Sit down.

STUART: There is proof that - -

THE COURT: Sit down.

STUART: There is proof that I had a wallet. Right here, this is forged by policemen. This is forged by Clifton police officers to obtain my wallet. Please don't - - please don't find me guilty, please.

And this Public Defender told me to go f**k myself in 2005 in the bullpen area - -

THE COURT: Jurors, please go into the jury room.

THE COURT: OKAY, Mr. Stuart, here's the situation - -

STUART: What situation is that?

THE COURT: You listen to me if you want to stay in the courtroom for the moment, 'cause you may not stay longer after that.

STUART: I hope I don't.

THE COURT: You can - -

STUART: This evidence was kept out, Judge.

THE COURT: I don't want - -

STUART: Why was this evidence kept out? Why? I sat here and I have not gotten - -I have not gotten a fair trial. This is not a fair trial.

THE COURT: I'll remove you - -

STUART: This is America. Isn't this America?

THE COURT: I'm going to give you ten seconds to stop.

STUART: Is this America? Is this - -

THE COURT: . . . I'll let you stay in the courtroom. I'm going to give the jury an instruction to disregard what you did.

STUART: No, no, no, no. It's not going to be disregarded, no.

THE COURT: I'll have you - -

STUART: This guy did not present this evidence. This evidence was not presented.

THE COURT: You want to stay in the courtroom or not?

STUART: They heard me already. Doesn't matter to me.

THE COURT: You want to stay or not?

STUART: This is a forgery. This is fraud.

THE COURT: Okay. I'm not going to look at whatever paper you have.

STUART: Look, Detective John Sloth, how did he find out where I was? Can you tell me that?


STUART: How did he get my driver['s] license number and everything - - my driver license

THE COURT: You didn't do - -

STUART: - - and SBI number?

THE COURT: Mr. Stuart, you didn't do yourself any good. Now - -

STUART: What is going on?

THE COURT: Okay, I'm going to give - - Mr. Stuart, if you don't become quiet, you're going to have to be removed from the courtroom - -

STUART: I don't get it; I don't get it.

THE COURT: - - do you understand?

STUART: I don't get it. If I didn't have a wallet, where did all this information come from?

THE COURT: Remove Mr. Stuart from the courtroom.

STUART: Where did all the information come from? Sorry you're out. I want a new Public Defender and new judge.

Shortly after this exchange, defense counsel suggested that the judge allow defendant a brief cooling-off period and then ask him if he wished to return to the trial. However, instead of bringing the defendant back to court, the judge heard a report from the sheriff's officers that defendant was stating that he would keep talking if allowed to return. Instead of consulting with his client or asking that his client be brought back into the courtroom, defense counsel accepted what the sheriff's officers said and did not renew his request that his client be given a further opportunity to be present for the trial. As a result, defendant was absent from the trial during the jury charge, read backs of all of the most critical trial testimony, and the verdict.

An hour after beginning deliberations, the jury sent out a note asking for a read back of testimony. When the judge asked them to clarify what they wanted, they sent back a second note indicating that they wanted a read back of the testimonies of Officers Turba and Berge, Detective Dvorak, and the store owner Kapadia. The jury also asked for a list of the police witnesses who testified, in the order in which they testified. After hearing a read back of Kapadia's testimony, the jury forewoman asked if the jury could return to the jury room to continue their discussions, and the judge permitted them to do so. However, a few minutes later, the jury asked to hear the next read back, which was the testimony of Berge.

The next day, after hearing read backs of the remaining police witnesses, the jury sent out another note asking for "Mr. Hyle's testimony when the suspect entered the store and what was said to him, Mr. Hyle, by the suspect, as well as Joseph's [Szczepanik] testimony of when the suspect entered the store." They then clarified that what they wanted was "Mr. Hyle and Joseph's testimonies from when the suspect entered the store until the suspect left the store, from both the Prosecutor and from the defense." All of that direct and cross-examination testimony, covering the critical issue of what the witnesses saw and heard the robber say and do, was read back.

Very shortly after the read backs, the jury announced that they had reached a verdict. Before taking the verdict, and out of the jury's presence, the judge placed on the record his determination that defendant had waived his right to be present at his trial based on what occurred earlier in the proceedings.

We've had him here. He is down in the bullpen yesterday and today. But I didn't feel it's appropriate for me to solicit him as to whether or not he wants to come back or not.

Instead of asking that his client be permitted to return, or indicating on the record whether he had consulted with his client as to whether he wanted to return to court, defense counsel simply reminded the judge, "But you did ask him once." The judge recalled, "I did ask him once. And the officers indicated to me . . . that he essentially . . . said what he wanted to say."

The judge also indicated that what he did was calculated. He wanted to communicate this to the jury and conduct himself this way so the jury would see it. He accomplished what he wanted.

And I have no intention of trying to inquire of him whether or not he would want to come back in the courtroom anymore. That was my feeling.

So let's bring the alternate in and the jury out and we'll take the verdict.

In remarks to the jury on the record after taking the verdict, the judge further explained that the defendant was not present in court because he chose to waive his right to be present in the courtroom by the way he conducted himself here. . . . And once he did that, he was satisfied and refused to come back to the court. He knows the system. He has two prior first-degree robbery convictions on two prior occasions, so he understands about how the process works better than the average person might.

On October 27, 2006, about five months after the verdict, defendant was sentenced. Immediately prior to the sentencing, the judge decided defendant's new trial motion, which was based on defendant's alleged improper exclusion from the courtroom. At that time, defendant had a new attorney, and the judge did not have the trial transcripts. In opposing the motion, the prosecutor inaccurately represented to the trial judge that the defendant had been allowed to return to the courtroom and was present for the jury deliberations. The motion was denied.


On this appeal, defendant raises the following points for our consideration:









In light of our disposition of this appeal, we need not address Point III B and C, or Point V. Defendant's Point III A and Point IV are without merit and warrant no discussion beyond the following comments. R. 2:11-3(e)(2). Based on our review of the record, we conclude that the State presented sufficient trial evidence to sustain a conviction of first degree robbery for simulated use of a gun. See State v. Reyes, 50 N.J. 454, 458-59 (1967). Prosecution witnesses testified that defendant threatened that he had a gun and would shoot the owner, and he had his hand concealed and pointing at the victim in a manner that suggested he had a gun. If the jury believed that testimony, it would support the conviction for first degree robbery. N.J.S.A. 2C:15-1.

After reading the transcripts of the Miranda hearing and the trial judge's factual findings based on that hearing, we also conclude that defendant's statements to the police were properly admitted in evidence. We affirm the trial judge's Miranda rulings for the reasons stated in his cogent oral opinion placed on the record on February 9, 2006.


We now turn to the issue of defendant's exclusion from the trial. The Constitutions of the United States and of New Jersey guarantee a defendant's right to be present for his trial. State v. Luna, 193 N.J. 202, 209 (2007); State v. W.A., 184 N.J. 45, 53 (2005). Moreover, Rule 3:16(b) requires that "[t]he defendant shall be present at every stage of the trial" unless defendant has waived that right.

"Our system of justice functions best when the accused is present throughout trial. Defendants are able to communicate with counsel, participate in trial strategy, assist in presenting a defense, and aid with cross-examination." Luna, supra, 193 N.J. at 210. In W.A., for example, the Court confirmed the importance of a defendant's "right of presence at every stage of his trial, including sidebar conferences during jury selection." W.A., supra, 184 N.J. at 59.

However, a defendant may waive the right to be present at trial by engaging in disruptive behavior:

[W]e explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. [Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060-61, 25 L.Ed. 2d 353, reh. den. 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed. 2d 80 (1970).]

As in Allen, a defendant excluded for disruptive conduct should be given opportunities to return to the trial on a promise of good behavior:

The trial court in this case decided under the circumstances to remove the defendant from the courtroom and to continue his trial in his absence until and unless he promised to conduct himself in a manner befitting an American courtroom. As we said earlier, we find nothing unconstitutional about this procedure. Allen's behavior was clearly of such an extreme and aggravated nature as to justify either his removal from the courtroom or his total physical restraint.

Prior to his removal he was repeatedly warned by the trial judge that he would be removed from the courtroom if he persisted in his unruly conduct, . . . Allen was constantly informed that he could return to the trial when he would agree to conduct himself in an orderly manner. Under these circumstances, we hold that Allen lost his right guaranteed by the Sixth and Fourteenth Amendments to be present throughout his trial. [Id. at 345-46.]

See also State v. Spivey, 122 N.J. Super. 249, 255-56 (App. Div. 1973) (finding that there was no error in excluding a disruptive defendant from the courtroom where the trial judge brought him back to the courtroom several times and "clearly gave defendant every opportunity to be present in the courtroom"), rev'd on other grounds, 65 N.J. 21 (1974).

Our concern for this defendant's exclusion from the trial turns on the unusual facts of this case. In a statement to the police, defendant admitted that he asked the store clerk for money, but denied that he "announced a robbery." He also denied having a gun or pretending to be armed with a gun during the robbery. The witnesses testified that defendant said he had a gun and threatened to shoot the owner. But those allegations did not appear in any of the reports of the police officers who spoke to those witnesses.

The jury's decision on that issue - whether the victims heard and saw defendant simulate possession of a gun - in turn determined whether defendant would spend the rest of his life in prison without parole. A statement that "I have a gun" would not be enough to sustain a conviction; the jury must be convinced that defendant also made an accompanying gesture simulating possession of a gun. See State v. Chapland, 187 N.J. 275, 290-92 (2006). During two days of deliberations the jury sent out multiple requests for read backs and eventually requested read backs of the most critical testimony, including all of the witnesses to the robbery, and the law enforcement officers to whom defendant allegedly made statements.

Based on one disruptive incident that occurred before the judge charged the jury, defendant was excluded from the courtroom during the court's charge to the jury and for the entire period of deliberations. Despite defense counsel's request shortly after defendant's initial removal, the judge did not bring defendant back to court to address him as to whether defendant was prepared to behave appropriately if allowed to return to the trial. Instead, without hearing from defendant and without defense counsel consulting with his client, the judge relied on statements from the sheriff's officers guarding defendant in a facility outside the courtroom. The officers reported that defendant said he did not want to come back to court and would keep talking out of turn if he did return.

We conclude it was error for both the judge and defense counsel to rely on these statements. We appreciate the trusted role played by sheriff's officers in a criminal courtroom, and their familiarity to the court and the attorneys who regularly appear there. However, these sheriffs' officers were not stand-ins for the judge, nor were they an appropriate substitute for defendant's attorney.*fn4 It would have been a simple matter to have brought defendant into the courtroom outside the presence of the jury and ask him if he was willing to conduct himself appropriately.

At no time during the extended jury deliberations and read backs did the judge make any further attempt to question defendant concerning his willingness to behave appropriately if allowed to return to the courtroom. Nor did defense counsel indicate on the record that he had spoken to his client concerning that issue or that his client had waived his right to be present. Defendant was excluded from the trial during critical read backs which amounted to a virtual replay of the trial. We conclude that depriving defendant of the opportunity to be present was prejudicial error in the context of this case.

We acknowledge that there is precedent to the contrary. In State v. Nardella, 108 N.J.L. 148 (E & A 1931), the Court of Errors and Appeals held that it was not error to have testimony read back to the jury in the defendant's absence:

[T]he trend of authority in this state and other jurisdictions is that it is not error to reread a portion of the testimony or a portion of the judge's charge in the temporary absence of the defendant. The test is whether anything occurred in his absence that was new to the proceeding and in conflict with his right to be confronted by the witnesses, to be represented by counsel, and to maintain his defense upon the merits. [Id. at 153.]

The court relied on the Nardella holding in State v. Auld, 2 N.J. 426 (1949), where the Court found no error in a trial judge giving jurors some additional instructions in defendant's absence.

Conceding the procedure here to be irregular both as to the privy communication of the judge with the jury and the absence of the defendant at some stages of the trial, which we are compelled to do, the sole test is whether such irregularities prejudice the defendant in maintaining his defense on the merits. We conclude it did not. [Id. at 434-35.]

In State v. Zenquis, 251 N.J. Super. 358 (App. Div. 1991), aff'd, 131 N.J. 84 (1993), we explained in greater detail the parameters of a defendant's right to be present for court proceedings:

Of course, we recognize that a defendant has a fundamental right to be present at every critical stage of a trial. Though confrontation means more than being allowed to confront the witness physically, the opportunity to meet the accuser "face to face" before the trier of fact forms the core of the values upon which the confrontation clause rests. Physical presence of the defendant enhances the reliability of the fact-finding process and promotes society's interest in "having the accused and the accuser engage in open and even contest in a public trial."

This much conceded, the right of confrontation is not absolute. The right of the accused to be present must be anchored to the reason for its existence. The right to meet one's accuser face to face is not guaranteed "when presence would be useless, or the benefit but a shadow." The right of confrontation and due process require that a defendant be allowed to be present to the extent that a fair and impartial hearing would be impaired in his absence. It has thus been said that "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." [Id. at 363-64 (citations omitted).]

Likewise in State v. Morton, 155 N.J. 383 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001), the Court found no grounds for reversal where defendant was not present in court for pretrial motions:

Here, however, we hold that the trial court did not commit reversible error in proceeding with the pretrial motions in defendant's absence. Because the motions centered on questions of law, defendant's presence was not constitutionally required.

The traditional justifications underlying defendant's right to be present, specifically the right to assist counsel in his defense, to assist in the cross-examination of witnesses, and to influence the jury psychologically by his presence, were absent. [Id. at 445 (citations omitted; emphasis added).]

However, since then, the Court has taken a more expansive view of a defendant's right to be present, including, in W.A., the right to be present during sidebar jury voir dire. Moreover, in those earlier cases, there was no suggestion as to how defendant might actually have been prejudiced by his absence.

We are convinced that this case is different. Although defendant had confessed to being present in the store and demanding money, the most critical issue the defense could meaningfully contest was whether defendant had pretended to have a gun. This was a live issue because, although the witnesses testified at trial that defendant claimed to have a gun and threatened to shoot them, none of those statements appeared in any of the police reports.

While the jury was re-hearing virtually the entire trial, defendant was deprived of his opportunity "to influence the jury psychologically by his presence." Morton, supra, 155 N.J. at 445. Moreover, we cannot be confident that defendant's continued exclusion from the trial for several days, without any further explanation to the jury during that time, did not prejudice the jury's view of defendant. And while the judge did give the jury a strong instruction to disregard defendant's outburst, the judge omitted those portions of the "Defendant's Absence From Trial" charge which caution the jury about defendant's entitlement to the presumption of innocence regardless of his absence from the trial. Model Criminal Charge, Defendant's Absence From Trial.

In short, in the context of this case, we cannot conclude that defendant's continued exclusion from the trial was harmless error. The jury obviously had questions about the case, as evidenced by its extensive requests for read backs. And the consequence of the jury's verdict could not be overstated. At age thirty-three, defendant faced life in prison without parole. On this set of facts, we conclude that defendant's continuing exclusion from the courtroom, without giving him any further opportunity to repudiate his improper conduct and return to the trial, was plain error mandating reversal of his conviction.*fn5


We next address defendant's claim that he was not given notice, prior to the trial, that the State intended to invoke the Three Strikes Law and hence he did not have a meaningful opportunity to evaluate what he contends was the State's pre-trial plea offer of a fifteen year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Once a defendant is convicted of a third armed robbery, imposition of a life sentence under the Three Strikes Law is mandatory. Neither the prosecutor nor the trial judge has discretion to waive that sentence. See State v. Oliver, 162 N.J. 580, 589 (2000) ("The Three-Strikes Law is mandatory once the offender falls within the scope of the Act."). However, prior to sentencing, the court must hold a hearing to determine whether defendant is subject to the Act, based on the verdict in that case and defendant's prior convictions. Id. at 590.

The court shall not impose a sentence of imprisonment pursuant to this section, unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to the defendant of the ground proposed. The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue. Prior convictions shall be defined and proven in accordance with N.J.S.A. 2C:44-4. [N.J.S.A. 2C:43-7.1d.]

Such a hearing was held in this case prior to sentencing, and defendant does not contest the trial judge's determination that defendant was subject to the Act. Instead, defendant contends that he did not know prior to the trial that the Act might apply to him, and therefore he was not able to fairly evaluate the State's plea offer. Defendant's possible sentencing exposure should have been discussed at the pretrial conference mandated by Rule 3:9-1(e). At that conference, the judge is required to review on the record, in defendant's presence, the State's final plea offer, if any, and "the sentencing exposure for the offenses charged, if convicted."

R. 3:9-1(e)(2). See State v. Taccetta, 200 N.J. 183, 194 n.7 (2009).

It appeared from the transcripts initially provided to us that this pretrial conference was conducted before a judge other than the judge who actually presided over the trial. After oral argument we required defendant to provide us with the transcript of the Rule 3:9-1 pretrial conference and transcripts of all of the other pretrial events in this case. Those transcripts support defendant's claim that, at least on the record, he was not advised of his possible exposure to life in prison without parole. Both those transcripts and later discussions in the sentencing transcript also strongly suggest that neither his counsel nor the judges conducting those proceedings were aware, prior to trial, that defendant could be subject to the Three Strikes Law. In fact, based on the colloquy at the sentencing hearing, the prosecutor may also have been unaware of this issue.*fn6 However, defendant's discussions with his counsel are not of record and would have to be explored in a further evidentiary proceeding.

In State v. Taccetta, 351 N.J. Super. 196 (App. Div.), certif. denied, 174 N.J. 544 (2002), we recognized that an attorney's failure to properly advise a defendant during plea negotiations may constitute ineffective assistance of counsel:

[W]e agree with those jurisdictions that have held that an attorney's gross misadvice of sentencing exposure that prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted constitutes remediable ineffective assistance. [Id. at 200.]

See also United States v. Day, 969 F.2d 39, 43 ( 3d Cir. 1992). We also briefly stated in Taccetta that if defense counsel had rendered ineffective assistance, the proper remedy would not be to allow Taccetta to accept the State's offer nunc pro tunc but rather to order a new trial. Taccetta, supra, 351 N.J. Super. at 201-02.

After proceedings on remand, the trial court ordered a new trial, finding that Taccetta was misinformed by his attorney and otherwise would have accepted the plea offered. We affirmed, but the Supreme Court reversed, because based on his continuing claim of innocence, Taccetta would have had to perjure himself in order to accept the plea offer. Taccetta, supra, 200 N.J. at 186. The Court did not address whether a new trial would have otherwise been the appropriate remedy. We note that in United States v. Day, supra, 969 F.2d at 47, the federal court expressed a different view as to the appropriateness of allowing a defendant to accept a plea bargain in such a case. However, it is premature to address the issue further here.

Because defendant's claim rests in part on facts outside the record, it should be explored at a testimonial hearing. See State v. Preciose, 129 N.J. 451, 460 (1992). Based on the record of that hearing, the court shall determine whether defendant was told at the time of the plea negotiations that he faced a possible life sentence without parole under the Three Strikes Law. If defendant was not so informed, the court shall determine whether defendant would have accepted the State's offer if he had been properly advised that he faced a potential life sentence. If so, the court shall determine the proper remedy.

Because the outcome of the remand hearing may obviate the need for a second trial, see Day, supra, 969 F.2d at 47, the hearing shall be held prior to the trial. We note that, under Taccetta, defendant cannot assert that he was unfairly denied the opportunity to accept a plea bargain if he also asserts his complete innocence; he has no right to perjure himself at a plea hearing. However, in this case, consistent with his multiple statements to the police, defendant could plead guilty to second-degree robbery without admitting to the simulated use of a gun. Such a plea would permit imposition of an extended term sentence of fifteen years subject to NERA.

Reversed and remanded.

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