On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-11-0986.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Axelrad and Ostrer.
Defendant appeals from the denial after an evidentiary hearing of his pre-sentence motion to vacate his plea to two counts of first degree robbery, N.J.S.A. 2C:15-1. He also challenges his sentence as excessive. We reverse and remand.
Defendant and four co-defendants (three male and one female) were charged in a November 2007 indictment with various crimes arising out of a home invasion on July 17, 2007 in Elizabeth, including: second-degree burglary, N.J.S.A. 2C:18-2 (count one); nine counts of first and second-degree robbery that victimized three adult women and six children between the ages of one-and-a-half and twelve years old (counts two through ten); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (count eleven); first-degree kidnapping involving one of the adult women, Susan Madison,*fn1
N.J.S.A. 2C:13-1b (count twelve); and eight counts of second-degree kidnapping involving another adult, Sharon Dimsdale, and the seven child victims, N.J.S.A. 2C:13-1b (counts thirteen through twenty). Two co-defendants were separately charged with fourth-degree obstruction of law, N.J.S.A. 2C:29-1 (count twenty-one).
During the course of a hearing on a motion to exclude outof-court identifications pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), there were significant breaks to allow counsel to explore potential plea agreements. The hearing was still continuing when defendant and the three male co-defendants entered pleas of guilty on February 18, 2009. (The record shows that the indictment against the female co-defendant was dismissed.) No trial date had been set in the case.
Under his plea agreement, defendant pled guilty to two counts of first-degree robbery, one involving Dimsdale and one involving a minor victim (counts two and five). In exchange, the State agreed to seek dismissal of the remaining charges, and to recommend concurrent, custodial terms of fourteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The robbery sentence would also run concurrent with a custodial sentence of three years, with an eighteen-month parole disqualifier, which was pending imposition for two third-degree violations of N.J.S.A. 2C:35 that preceded the robberies and to which he had already pled guilty on December 23, 2008.
Apparently, each co-defendant's plea was, as a practical matter, contingent on the others pleading, but no defendant wished to implicate another. Defendant's plea form did not indicate a promise to cooperate in the prosecution of others, nor was it expressly conditioned upon another defendant's plea. Defendant was the third or fourth defendant who entered a plea. His co-defendants received sixteen-year terms under their plea agreements.
During his allocution, defendant agreed that he had ample time to review his plea with his attorney, who answered all his questions. He stated that he was satisfied with his attorney's services. He also denied that anyone had forced, threatened, or pressured him to plea. He also agreed that he reviewed every line of the plea forms with his attorney, he understood the forms, and his answers were truthful and accurate. The court also established that defendant understood the terms of his sentence, including the consequences of NERA.
With respect to the factual basis, defendant volunteered that he possessed a knife when asked if he or individuals with him showed weapons to the occupants of the apartment he entered on July 17, 2007. He admitted that he displayed a knife to put the victims in fear in the course of committing a theft. The court found that the plea was knowing and voluntary, and supported by a sufficient factual basis, and scheduled sentencing for May 29, 2009.
In defendant's version of the offense in his pre-sentence report (PSI), he stated, "I was on Jefferson and the Police came and locked me up. They took me to a crime scene and the victim told the Police that she knew me." The probation officer also reported in the PSI, "Mr. Julney related that he plead [sic] to the instant offense because he was forced to."
According to the State's version of the offense, as reported in the PSI, the adult victims of the robbery reported that one of the children opened the apartment door after hearing a knock. A man then kicked the door, striking the child in the head, and three other men entered, all with knives, and all wearing white t-shirts with the sleeves cut off. They used the sleeves as face-masks, although one defendant removed his mask, allowing the victims to observe his face. The victims heard a female's voice from the front of the apartment but did not see her. The men seized the victims' cell phones, a wallet, and over $800 in cash.
The State's version also stated that police responded to a 911 call. They arrested one co-defendant fleeing the scene; he was wearing a ripped t-shirt sleeve around his neck. Another co-defendant was apprehended. The police also stopped a silver Chevrolet wagon that "match[ed] the description of the vehicle leaving the crime scene at high speed." The driver was the female later charged, and the passengers were a co-defendant, wearing a white t-shirt with the sleeves ripped off, and defendant, who was wearing a white tank top. The PSI stated that all defendants were positively identified by the victims in show-ups at the scene. However, an officer testified in the Wade hearing that the victims identified only the male defendants. As noted above, defendant's pending motion to suppress the out-of-court identification was abandoned upon entry of his plea.
The May 29, 2009 sentencing did not proceed as scheduled. The attorney who had represented defendant at the plea hearing filed a notice of motion to withdraw defendant's plea, with a certification and brief to follow after receipt of the plea transcript. Defendant obtained substitute counsel sometime thereafter and filed a certification alleging that he entered his plea because his attorney pressured him.
Defendant stated, "When I pled, I pled Guilty not because I regarded myself as guilty, but because my Public Defender was unprepared, unwilling to try the case and unable to provide me with a meaningful defense." He also stated, "I originally agreed to the plea because I felt I had no other choice since my attorney failed to prepare for a Trial."
Protesting his innocence, defendant asserted an alibi:
I was charged with having committed a robbery on July 17, 2007 at 102 Fairmont Avenue, in Elizabeth, New Jersey. I did not commit any robbery on that date or at that place. On July 17, 2007 I was at my house and had gotten into my car. While driving to Walgreens, my car was stopped by the Elizabeth Police Department and arrested.
Defendant's version implied that he was alone in his vehicle, and not in a Chevrolet with two other co-defendants, one of whom was driving.
Defendant asserted that he was a victim of mistaken identification, stating, "Based upon the Discovery I reviewed in this case, the Police were looking for a man wearing blue jeans and a white t-shirt. When I was arrested, I was wearing black jeans and a white tank top. The clothing I was wearing was not the same as the suspect." He asserted that one of the victims was unable to identify him as one of the robbers, although she identified the three other male co-defendants. He also noted the absence of incriminating finger-print evidence. The discovery to which defendant referred was neither attached to his certification nor made a part of the record before us. In a supplemental certification, defendant alleged that none of the stolen items were found in the vehicle in which he was arrested. He also claimed that when the police stopped his vehicle, they did not have a license plate number and had only a general description of the vehicle as a grey Suburban or Caravan.
The testimony of the police witness in the Wade hearing lends plausibility to defendant's claim, and undermines the State's official version of the crime in the pre-sentence report.*fn2 First, the officer testified that as he was proceeding to the scene, officers were chasing two individuals on foot. When he arrived they had one suspect in custody. One might infer therefrom that, at most, three individuals would be found in vehicles. Second, as we have discussed, according to the official version, defendant was arrested while riding in a vehicle, along with the female co-defendant who was driving, and a male co-defendant, another passenger, who was "identified as Barry Porter, [who] had both sleeves ripped off his white t-shirt." Moreover, apparently, only one vehicle was seen leaving the scene, since the official version stated that the Chevy Wagon "match[ed] the description of the vehicle leaving the crime scene." (emphasis added).
However, contrary to the assertion that one vehicle was stopped containing three suspects, the officer testified at the Wade hearing that two vehicles were stopped. In the following line of questioning, the officer testified that one suspect was arrested in a vehicle with a female.
Q And what happened when you got to Augusta Street?
A When I got to Augusta, officers had one person handcuffed in custody and were placing them in ...