On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-02-0353.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2012
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from the trial court's denial of his presentence motion to withdraw his plea of guilty to attempted aggravated sexual assault. Discerning no error in the court's application of the principles set forth in State v. Slater, 198 N.J. 145, 157-58 (2009), and recently reviewed in State v. Munroe, ___ N.J. ___ (2012), we affirm.
Defendant was indicted in February 2009, charging that on November 1, 2008, he committed first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7) (count one), and second-degree attempt to commit the same offense, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(7). Defendant was later charged in a July 2009 indictment with third-degree attempt to escape detention, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:29-5a (count one), second-degree possession of a implement for escape, a metal towel hook and sharpened eyeglass arm piece, N.J.S.A. 2C:29-6 (count two), third-degree possession of a weapon for an unlawful purpose, that being the hook and eyeglass piece, N.J.S.A. 2C:39-4d (count three), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four). Following his arrest for the aggravated sexual assault, he was also charged in November 2008 with his second violation of probation, which he had been serving after conviction for fourth-degree failure to register as a sex offender. The registration requirement was imposed as a result of juvenile adjudication of what would have been sexual assault if committed by an adult.
The pre-trial discovery included a police report of statements of M.D., the victim of the aggravated sexual assault; M.D.'s boyfriend James, and his friend, Robert. James told police that he and M.D. attended a Halloween party at his house which extended until the early hours of November 1. M.D. had been drinking and was intoxicated. James and M.D. had sexual intercourse in his bedroom after which M.D. passed out. James said he covered her with a blanket. She wore a long black sleep shirt. James periodically checked in on M.D., while continuing to socialize with guests.
At around 4:00 a.m., James heard noises from his bedroom. Accompanied by Robert, he pulled back the curtain that covered the entrance to his room, and saw a man, later identified as defendant, lying on top of M.D., who was on her back and naked except for a bra. In his statement, Robert confirmed the scene, adding that defendant was "humping" M.D. James became enraged and began hitting defendant, stating, "What are you doing that is my girlfriend." Defendant fled the residence.
According to defendant's statement to police, he entered the bedroom because he was too intoxicated to drive home; he did not see anyone in the room; and then passed out. He awoke to being struck several times in the head. He yelled, "It's not what it looks like I will leave man!" Defendant explained that he made that statement because as he was leaving he saw a female lying on the same bed as he was.
M.D. reported the incident to police later on November 1, 2008, stating she believed she had been sexually assaulted because she realized that when she awakened, she was completely naked except for her bra. Intoxicated with both alcohol and medication, she did not remember anything after having sex with James, until the commotion that awakened her.
On August 21, 2009, having been incarcerated continuously since his arrest on November 2, 2008, defendant entered a plea before Judge James E. Isman that resolved the two pending indictments, and limited the impact of the pending violation of probation. He was represented by Assistant Deputy Public Defender Nellie Marquez. Under the plea agreement, defendant agreed to plead guilty to second-degree attempt to commit aggravated sexual assault, for which the State would recommend a seven-year term under NERA; and to third-degree attempt to escape, for which the State would recommend a concurrent three-year term. It was also agreed that any resentence following the violation of probation would also run concurrent to the new sentences.
Before setting forth a factual basis, defense counsel reviewed in detail the plea forms, including those specific to a sexual offender and NERA. Counsel stated she visited him at the jail and reviewed plea forms two days in advance of his plea in court. Defendant admitted that he reviewed the plea forms, including the various special forms for sexual offense with his attorney. He expressed satisfaction with his attorney. Reflecting that his responses to the court were not rote, he personally inquired regarding a detail of the parole that was imposed, discussed his tiering as a Megan's Law offender, and inquired about the delay in obtaining an evaluation from the Adult Diagnostic and Treatment Center at Avenel.
He then provided a factual basis for the attempt to commit aggravated sexual assault:
THE COURT: In any event, were you in the City of Absecon on or about the 1st of November of 2008?
THE COURT: At that point in time were you with an individual whose initials are MD?
THE COURT: This alleges that you purposely attempted to commit an act of sexual penetration upon MD when MD was a person whom you knew or should have known was either physically helpless, mentally defective or mentally incapacitated. Is that true?
The judge then asked defense counsel to continue the questioning, given her familiarity with the facts.
MS. MARQUEZ: Certainly, Your Honor. Mr. Garfinkle, were you at a party on the 31st?
THE DEFENDANT: Yes, Ma'am.
MS. MARQUEZ: And at that party around 4:00 in the morning on November 1st did you enter into a room where there was a ...