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State of New Jersey v. E.M.

February 9, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
E.M.,*FN1 DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-10-03715.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 25, 2012

Before Judges Graves and Harris.

The sole issue presented by this appeal is whether, pursuant to State v. Slater, 198 N.J. 145 (2009), the Law Division erred when it denied defendant Edwin Machado's pre- sentence motion to withdraw his guilty plea to second-degree sexual assault, N.J.S.A. 2C:14-2(b). Accused of engaging in multiple instances of sexual intercourse with his step-daughter when she was between the ages of eight and thirteen, Machado pled guilty to touching her breast for his own sexual gratification. Relying upon three post-plea recantations by the victim, Machado claims he is entitled to withdraw his plea.

The following two contentions are presented for our consideration:

POINT I: THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENDANT TO WITHDRAW HIS PRESENTENCE GUILTY PLEA.

A. THE FACTORS SET FORTH BY THE NEW JERSEY SUPREME COURT IN STATE V. SLATER WEIGH IN DEFENDANT'S FAVOR SUCH THAT HE SHOULD HAVE BEEN PERMITTED TO WITHDRAW HIS PRE-SENTENCE GUILTY PLEA.

B. THE TRIAL COURT PLACED UNDUE WEIGHT ON THE FACT THAT, WHEN DEFENDANT PLEAD GUILTY, HE DID SO UNDER OATH AND PROVIDED A FACTUAL BASIS FOR THE PLEA.

After reviewing the record, we find that Judge Richard F. Wells properly applied the Slater jurisprudence and appropriately exercised his judicial discretion in denying Machado's motion. We affirm.

I.

Pursuant to the plea agreement, Machado pled guilty in exchange for the State's recommendation that he be sentenced to five years incarceration subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the plea allocution on June 21, 2010, after Machado was sworn in, the following exchange occurred:

THE COURT: All right. Thank you, sir. I'm going to ask your counsel . . . if you would please establish a factual basis for the plea. [DEFENSE COUNSEL]: Yes, thank you. [Edwin], as you know, originally . . . we were going to plead to Count 1. Now, we've changed it to Count 7[,] . . . the difference being the Pennsauken address, not the Belmar address. Do you understand that?

MR. [MACHADO]: Okay. [DEFENSE COUNSEL]: Okay. So, . . . between December 1st, 2005, and February 16 of 2008, did you ...


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