On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-02-0120.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2011 - Decided Before Judges Cuff and Sapp-Peterson.
In this appeal, defendant seeks to withdraw his guilty plea to second-degree robbery, N.J.S.A. 2C:15-1. Immediately after pleading guilty to the charge in accordance with a plea agreement, defendant wrote to the court seeking to withdraw the guilty plea on the ground that he did not receive discovery until the day he entered his plea and had he been provided the discovery earlier, he would not have entered the guilty plea. The trial court denied the motion and sentenced defendant to a five-year custodial term with an eighty-five percent No Early Release Act (NERA), N.J.S.A. 2C:43-7, period of parole ineligibility. We affirm.
The guilty plea arose out of defendant's robbery of the Pennsville National Bank in Oldsman Township. Defendant entered the bank, approached a teller, handed the teller a bag, and then directed her to give him money. The teller turned over $1,340. The incident was captured on the bank's video system.
Defendant claims that it was not until the plea hearing that he was first given a copy of the discovery. He did not have time to review the discovery at that point. However, when he returned to his cell and reviewed the materials, he discovered that the description of the perpetrator provided by one witness was of a different racial and ethnic background than himself, thereby, in his opinion, seriously undermining the accuracy and reliability of the identification. Defendant contends that had he known that at least one of the State's witnesses identified the perpetrator as someone other than himself, he would not have pled guilty to the charge.
On appeal, defendant raises one point: "The trial judge erred by failing to allow [him] to withdraw his plea prior to sentencing." We disagree.
In State v. Slater, 198 N.J. 145 (2009), the Supreme Court set forth the four factors that trial courts must analyze when considering a motion to withdraw a guilty plea:
We hold that trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. [Id. at 157-58.]
These factors apply whether the motion is made prior to or subsequent to sentencing, but trial courts are to employ an "interest of justice" standard in reviewing motions to withdraw a guilty plea filed prior to sentencing. Id. at 158. "'[T]he burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)).
In this matter, there is not even a suggestion of innocence advanced by defendant. Rather, defendant's motion is predicated upon one witness' purported faulty identification of the perpetrator. This is not an assertion of a "colorable claim of innocence," but a challenge to the proofs upon which the State may have relied had the matter proceeded to trial. Moreover, Rule 3:13-3(b) requires that defense counsel, not the defendant, obtain copies of the discovery no later than "28 days after the return or unsealing of the indictment." Further, Rule 3:9-1(c) requires that the court, at a defendant's arraignment, "confirm that defendant has reviewed with counsel the indictment and the discovery." (emphasis added). Hence, although, as defendant contends, the plea hearing conference may have been the first time he was provided with a copy of the discovery, that does not mean defense counsel failed to review the discovery with him prior to the entry of the guilty plea. Defendant does not claim that defense counsel failed to review discovery with him in advance of the entry of his guilty plea.
Finally, defendant's claim that the court erred in denying his motion to withdraw his guilty plea is not premised upon a claim that the plea was involuntary or lacked an adequate factual basis. Indeed, during the plea colloquy, defendant interrupted defense counsel to explain that he robbed the bank because he needed money, and when defense counsel gave the approximate amount of money taken as "between 12 and 13" hundred dollars, defendant responded by giving what he believed to be the exact amount, "$1340." Therefore, unlike in Slater, the record lacks any evidence that defendant was coerced into pleading guilty.
In short, our independent canvass of the record confirms that defendant failed to present "a colorable claim of innocence," he failed to provide strong reasons for the withdrawal of his guilty plea, and his plea was part of a negotiated agreement. Under these circumstances, the first three Slater factors dramatically favor the State, and thus there was an insufficient ...