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State v. Bush

March 31, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERRY P. BUSH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-03-0120.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2010

Before Judges Wefing and LeWinn.

On March 7, 2006, defendant was indicted on two counts of endangering the welfare of a child, one in the first-degree and the other in the second-degree, N.J.S.A. 2C:24-4(b)(3); and one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b). The conduct described in this indictment consisted of defendant photographing his stepdaughter in sexually suggestive poses for his own gratification, on or about January 2005 and August 2005.

On May 12, 2006, pursuant to a negotiated plea agreement, defendant pled guilty to the second-degree endangering count; the State recommended a six-year sentence and agreed to dismiss the remaining two counts of the indictment. As a result of his plea, defendant was referred for evaluation and examination at the Avenal Diagnostic and Treatment Center pursuant to N.J.S.A. 2C:47-1 to -10; sentencing was adjourned pending receipt of that report.

On December 8, 2006, defendant filed a motion to withdraw his guilty plea on the grounds that he had learned of the State's intent to pursue new charges against him based upon his stepdaughter's claims, revealed in July 2006, that defendant had engaged in sexual activity with her in addition to taking the photographs. Defense counsel certified that, "[h]ad defendant known at the time of his guilty plea that just two months later [his stepdaughter] would accuse him of sexual assault, allegations which he vehemently denies, he never would have entered a guilty plea to the taking of the photographs."

Sentencing was held on January 26, 2007. At the outset of that hearing, the judge heard argument on defendant's motion to withdraw his plea. It appears that defendant had given his attorney a letter for the judge to read. Defense counsel, however, stated that he had advised defendant that it was "against [his] interest to release this letter to the [c]court and the prosecutor . . . ." Defendant thereupon stated that he would not give his letter to the judge. Counsel represented that, in his letter, defendant "assert[ed] his innocence of the charges which he pled guilty to . . . ." Counsel also noted that defendant had foregone a possible motion to suppress evidence pertaining to the photographs which, he claimed, were seized in a warrantless search.

In denying defendant's motion, the judge found that "[d]efendant made a knowing[], intelligent[], and voluntar[y] guilty plea." The judge concluded that, "[t]here [was] no plausible showing of a valid defense[,]" and denied defendant's motion. The judge thereupon proceeded to sentence defendant to a term of six years of imprisonment.

On June 19, 2007, defendant was indicted for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), based upon the new allegations by his stepdaughter. The timeframe during which this conduct allegedly occurred was "on or about October 2003 and on or about August 2005 . . . ."

Defendant appealed his sentence pursuant to Rule 2:9-11. On November 20, 2008, we entered an order determining that "this matter is not ready for disposition on oral argument without briefs," and therefore ordered that "this matter [be] postponed until a later date for disposition after full briefing on a regular calendar." This appeal ensued.

On appeal, defendant contends:

THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA, CONTRARY TO PRINCIPLES OF FUNDAMENTAL FAIRNESS, AND REASONABLE EXPECTATIONS UNDERLYING THE GUILTY PLEA. U.S. Const. amends. V, VI, ...


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