On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 09-01-00013-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and LeWinn.
Defendant was charged in Accusation No. 09-01-00013-A with second-degree luring, N.J.S.A. 2C:13-6, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). Defendant waived his right to have his case presented before a grand jury and entered a plea to count two which was amended to second-degree sexual assault, N.J.S.A. 2C:14-2(b).
On April 17, 2009, defendant filed a motion to withdraw his guilty plea. Prior to sentencing on June 9, 2009, the judge heard argument, denied the motion and proceeded to sentence defendant to a term of three years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant now appeals the order denying his motion to withdraw his guilty plea.
The pertinent factual background may be summarized as follows. In June 2008, defendant, who was then eighteen years old, encountered a juvenile,*fn1 S.S. at the Montclair Public Library. S.S. claimed that, while they were talking, defendant pulled S.S.'s shorts to his knees; S.S. then punched defendant in the chest and ran away to tell his sister what happened. S.S. pointed out defendant to his sister but refused to report the incident to library staff. S.S.'s sister approached defendant, told him about her brother's accusation, and defendant stated that nothing improper had taken place. S.S. and his sister left the library and later called the police.
Defendant was arrested the following day. When interrogated by Montclair police detectives, defendant stated that he and S.S. went into the library bathroom together and he performed fellatio on S.S. The police took a statement from S.S. later that day, in which he stated that he went into the bathroom, defendant followed him and performed fellatio on him.
When giving the factual basis for his guilty plea, defendant stated that he and S.S. were in the library bathroom and while there he touched S.S.'s penis under his clothing. When he was interviewed for his presentence report, defendant told the probation officer that he and S.S. were in the library bathroom talking, S.S. lifted up his shirt and defendant touched S.S.'s undergarments and his "private area[,]" adding that he "felt bad, and thought things didn't add up."
Defendant was interviewed by a psychologist at the Adult Diagnostic and Treatment Center (ADTC) to determine his eligibility for sentencing as a sex offender pursuant to N.J.S.A. 2C:47-1 to -10. Defendant told the ADTC interviewer that he met S.S. at the library, struck up a conversation with him, but did not engage in any sexual activity with him. The ADTC evaluation concluded that defendant was not eligible for sentencing as a sex offender.
Defendant's attorney filed a certification in support of his motion to withdraw his guilty plea, stating that, "[s]hortly after the guilty plea was accepted by the [c]court, [defendant] contacted [the attorney] with questions regarding withdrawing his guilty plea[,]" and that defendant "continued to indicate that he wanted to withdraw his plea by phone calls, writings, and through his mother." Counsel further stated that at the hearing, defendant would "assert that he wants to withdraw from the plea agreement and set the matter down for trial."
At that hearing, counsel argued that defendant's "assertion of innocence is more than a blanket bold statement based on the fact that this is something that he . . . alluded to in the presentence report and stated clearly in the [ADTC] report." Counsel asked the judge to voir dire defendant about his reasons for seeking to withdraw his guilty plea. The judge did question defendant briefly, but only as to whether he had entered a knowing and voluntary guilty plea.
In denying defendant's motion, the trial judge reviewed the standards governing requests to withdraw a guilty plea recently set forth by the Supreme Court in State v. Slater, 198 N.J. 145 (2009). The judge found that defendant had not asserted a "colorable claim" of innocence, as he had "confessed to the officers when asked about the charges against him. . . . The only time that . . . [d]efendant denied his role in the crime was during his [ADTC] report . . . ." In assessing the "nature and . . . strength of [d]efendant's reason for withdrawal," the judge recalled defendant's demeanor at the plea which the judge described as "respectful[,]" adding that it "was even more reason why the court was comfortable with [defendant] being comfortable with what he was saying because he ...