On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 02-08-1757 and 02-09-1887-B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012
Before Judges Payne and Hayden.
Defendant, E.W., pled guilty on June 2, 2003 to Count 2 of Indictment 02-08-1757 charging second-degree sexual assault against his housemate, R.D., N.J.S.A. 2C:14-2c and to the single count of Indictment 02-09-1887-B, charging third-degree sexual penetration of K.W. by a diseased person, N.J.S.A. 2C:34-5b. Intercourse with K.W. had been consensual; however, she was not made aware that, at the time of the act at issue, defendant had been HIV positive for approximately ten years, and he was under treatment.
Following denial of defendant's motion to vacate his plea, based on allegations that he had not understood its terms or his sentencing exposure, both of which allegedly had been inadequately explained by trial counsel, on October 24, 2003, defendant was sentenced for the second-degree crime to six years in custody, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent five-year sentence for the third-degree crime. Prior to sentencing, defendant had been found ineligible for sentencing under the purview of the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10.
Defendant appealed, raising arguments that included:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEAS BEFORE SENTENCING.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE TRIAL COUNSEL FAILED
TO ADVISE DEFENDANT FULLY OF THE CONSEQUENCES AND MEANING OF THE PURPORTED PLEA AGREEMENTS, RESULTING IN THE ABSENCE OF KNOWING, INTELLIGENT, AND VOLUNTARY PLEAS. (Partially Raised Below).
DEFENDANT SUFFERED A BRADY VIOLATION AND VIOLATIONS OF THE RULES OF COURT REGARDING DISCOVERY FROM THE ALLEGED VICTIM, R.D. (Not Raised Below).
On an earlier appeal in 2006, we affirmed the convictions that we have set forth but reversed a conviction and sentence for contempt, entered by the judge as the result of derogatory and profane statements made in court by defendant at sentencing. Additionally we remanded the matter for resentencing in light of State v. Natale, 184 N.J. ...