On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 07-05-0171.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2010 - Decided Before Judges Cuff and Fisher.
In this appeal, defendant argues that the trial judge erred in denying
his pre-sentence application to withdraw his guilty
plea. Because a principled consideration of the Slater*fn1
factors highly favored the granting of relief and because
such applications when pursued prior to the imposition of sentence are
to be liberally indulged, we reverse the denial of the motion to
vacate the guilty plea.
On December 16, 2006, defendant was arrested for driving while intoxicated in Raritan Township. While at police headquarters, defendant allegedly spit in a police officer's face and on his chest. Defendant was indicted on May 1, 2007, and charged with fourth-degree throwing bodily fluids at a law enforcement officer, N.J.S.A. 2C:12-13.
On February 25, 2009, the date a jury trial was to commence, defendant entered into a plea agreement that called for the imposition of a probationary term and a maximum custodial sentence of 180 days in the county jail, and pled guilty to the fourth-degree offense as agreed. In responding to the judge's leading questions, defendant acknowledged that the incident in question occurred at the Raritan Township Police Department on December 16, 2006, and the alleged victim was a police officer; defendant also gave the following testimony:
THE COURT: And [the indictment] goes on to allege that at that time and place you did purposely subject [the officer] of the Raritan Township Police Department to contact with a bodily fluid while the officer was in uniform and acting performance of his duties. Is that accurate? [DEFENDANT]: Yes.
THE COURT: And more specifically the allegation is that you spit onto the officer at that time and place, is that correct? [DEFENDANT]: Yes.
Taken literally, the plea colloquy does not contain defendant's admission of the conduct alleged but only his acknowledgement that the indictment alleged that he "spit onto the officer."
Less than two months later, and prior to the date scheduled for sentencing, defendant moved to vacate his guilty plea, asserting that as a result of the pressure of the situation, he decided to plead guilty pursuant to the terms of a plea agreement rather than take his chances at trial. Defendant also asserted, with the support of medical records, that he has an asthmatic condition and, for years, has suffered from various side effects, including, among other things, "sneezing, stuffy nose, sinus pain or inflammation, cough." He claimed that rather than what was alleged in the indictment, the following occurred:
I was heading home when I was pulled over. I was exhausted and had a cold with a sore throat. I was using throat lozenges that I had in my car to relieve the symptoms. The officer said that he smelled alcohol. He must have mistaken the odor of the lozenges for alcohol. The officer administered field sobriety tests. I told him I had surgery on both knees and wouldn't be able to perform the tests well. He wanted me to try anyway. He then arrested me for DWI. At the police station, after I told [an officer] that I had a cold and sore throat, I asked for a drink of water. He said no and then left the room. When he came back he demanded to know where the drugs were. He was screaming in my face. I told him that I didn't know what he was talking about. He was yelling at me to stop lying and grabbed my arms to pull up my shirt sleeves. He was looking for needle marks but there weren't any. Frustrated, he then left the room. I was shocked. I was so overwhelmed and startled that I started having trouble breathing, having been sick with a cold and a sore throat and having asthma which was beginning to act up. I had throat lozenges in my pocket and took one to help relieve my symptoms due to the fact that my prescription medication was left in my car. [The officer] came back in the room and demanded that I remove the lozenge from my mouth, which I did. He then left the room again. Still having trouble breathing, I placed another lozenge in my mouth. [The officer] came back in the room and demanded that I spit out the lozenge again. He then attempted to remove the lozenge himself with his nightstick. Due to my asthma I was unable to adequately give breath samples to [the officer's] satisfaction. After only two attempts he charged me with refusal. I did ask if I could try again but was told no. I even offered blood and urine samples but was told that they don't do that there. I was being escorted out by two other officers, one at each arm, to meet my wife who was there to take me home. It was at this time that [the officer] rushed up to me and put his face to mine nose to nose. I was already suffering an asthma attack which was compounded by a cold and sore throat. I was startled by [the officer's] actions and due to my condition, I involuntarily coughed or sneezed.
By the time this motion was filed, the judge who presided over the plea hearing had retired. Another judge heard defendant's motion to withdraw his guilty plea, denied it by way of a written opinion, and imposed a two-year probationary term conditioned upon defendant's service of 180 days in the county jail and other obligations and monetary penalties and fees.
Defendant appealed,*fn2 raising the following arguments for our consideration:
I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO ...