July 18, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL I. GARFINKEL, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 DEFENDANT: Yes, sir.
THE COURT: At that point in time were you with an individual whose initials are MD?
THE DEFENDANT: Yes, sir.
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 DEFENDANT: Yes, sir.
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 young lady whose initials are MD?
THE DEFENDANT: Yes, ma'am.
MS. MARQUEZ: And did you attempt to have sexual intercourse with her, even though MD was actually passed out from taking pills and actually drinking?
THE DEFENDANT: Yes, ma'am.
MS. MARQUEZ: You attempted to have some form of sexual intercourse with her but were actually stopped by her boyfriend and another young man.
THE DEFENDANT: It didn't lead that far but, yes, ma'am.
Defense counsel then elicited defendant's explicit waiver of an intoxication defense.
MS. MARQUEZ: You were drinking at that time, as well, correct?
THE DEFENDANT: Yes, ma'am.
MS. MARQUEZ: So - but you're waiving any defenses that you may have as to your drinking and what that affect would have on any defenses against this charge, is that correct, by pleading guilty?
THE DEFENDANT: Yes, ma'am.
Counsel then returned to eliciting a factual basis of the offense.
MS. MARQUEZ: And you would admit that the young lady was in the bed, there was no response from her, and she was naked from the waist down?
THE DEFENDANT: Yes, ma'am.
MS. MARQUEZ: And you did attempt to try and have some penetration with her, either through use of your hand or sexually with your penis?
THE DEFENDANT: Yes, ma'am.
The judge then resumed questioning, to satisfy himself that defendant had taken sufficient steps to constitute an attempt.
THE COURT: Okay. In order to constitute an attempt there has to be a purposeful taking of substantial steps that lead one to clearly know what your intention was. You have to tell me how far you got, in other words, what steps you took to accomplish some sort of sexual penetration.
THE COURT: . . . . Did you take substantial steps to somehow penetrate her either with your tongue, your hand, your finger, or your penis?
In his response, defendant then volunteered a detail that apparently had not been reported previously by him, M.D., James or Robert - he had his hand on her buttocks.
THE DEFENDANT: It was my hand, Your Honor, and, yes, I did place my hand on her back side or her butt underneath the blanket, Your Honor, and as her boyfriend was coming in the room.
THE COURT: And you were attempting to have some sort of intercourse with her, whether it be penile, digital, or both?
THE DEFENDANT: Yes, Your Honor.
Defendant then provided a factual basis for the attempt to escape. And the court accepted both pleas as knowing and voluntary. The court did not issue a sentencing date because it was uncertain when the Avenel evaluation would be received.
Defendant was examined at Avenel on October 8, 2009. It appears from the record, the report was not provided to the court until December 1, 2009, which then scheduled sentencing January 8, 2010. The record does not reflect specifically why sentencing did not occur on that date. However, the record does include a letter from defendant to Ms. Marquez, stating, "I am thinking of retracting my plea."
At some point thereafter, a new attorney, Michael H. Schreiber, was appointed to represent defendant through the Office of the Public Defender. With sentencing still pending, Mr. Schreiber filed a formal motion to withdraw defendant's plea on May 3, 2010. The motion was supported by counsel's certification, setting forth his summary of pre-trial discovery, including statements by defendant to police. The State filed its opposition to the motion May 18, 2010. About a week before oral argument on August 21, 2010 before Judge Bernard DeLury, Jr., defense counsel submitted a letter to the court attaching and summarizing numerous letters from defendant to Ms. Marquez both preceding and following his plea.
Most of defendant's pre-plea letters addressed the distress he was experiencing while incarcerated, awaiting resolution of his case. He expressed concern about his daughter, and implored counsel to communicate more frequently with him and to provide him with various discovery. In one letter from March 2009, defendant conceded that he was not entirely candid with Ms. Marquez.
I also want to tell you that I want to withdraw my statement that I made with you here Downstairs[.] Not all of it is Right[.] Nor is it How Do I say Not a lie[.] But Not true in all sences [sic][.] I have left stuff out and Put in other stuff that Doesn't fit just cause I have a problem trusting people and I need to know what is really going on Before I tell the whole Truth.
A subsequent pre-trial letter addressed bail and his defense, "I still can[']t unDerstanD why I can't Be Released to prove my innocents [sic]." However, none of the letters included defendant's own version of what happened in the early morning hours in James's bedroom. The record reflects that defendant appeared in court ten times before he appeared on August 21, 2009 to enter his plea.*fn1
Defendant wrote to counsel four times in November, inquiring about the timing of his sentence and requesting transcripts of his court appearances, the grand jury proceedings, and his plea. Ms. Marquez responded in December 2 that she would order transcripts of the grand jury and his plea, but inquired what defendant's purpose was in seeking other transcripts, as her office would not automatically incur the related expense.
In defendant's December 4, 2009 response, he mentioned for the first time that he was contemplating withdrawing his plea. "I have just received your letter and [I] was requesting the court transcripts for the beginning of an appeal process but now [I] am thinking of Retracting my plea." He then stated that upon retracting his plea, he wanted a bail hearing scheduled, "so that [I] may take care of my family while [I] wait for trial." He then addressed the hardships his family faced while he was incarcerated. "[I] can Not just sit here waiting to go [to] prison for something that [I] did not do." Defendant more firmly expressed dissatisfaction with his plea in a December 18, 2009 letter, in which he stated, "[I] agreed to take a plea agreement that [I] shouldn't have taken." He claimed that he felt the court had pressured him to plea. "When [I] was in court on [A]ugust 4th . . . the judge gave me an ultimatum of 30 years in prison or a plea agreement you didn't give me any direction[.]" He also alluded to a claim that his decision to plea was affected by the psychotropic medications he was taking while incarcerated. He stated, "I plan to prove that the charge brought upon me is false. I do not accept the plea agreement now that [I] am thinking with a clear head and solid thoughts."
In his Avenel interview, defendant reiterated what he told police: he went to sleep on the mattress because he was very intoxicated and woke up with a punch to his head. Defendant also claimed that the police reports of James's and Robert's statements were inaccurate, based on their taped statements.*fn2 In defendant's December 17, 2009 presentence report, the probation officer quoted defendant to say:
I couldn't drive, I could barely walk. The party was still going on and I wanted to sleep. I went upstairs and crashed in one of the bedrooms. I passed out. The reports say it was about 4:15 a.m. when someone woke me up with a punch to the head. I immediately jumped to my feet. I had no idea that anyone else was in the bed. I left the house, jumped in my truck, and went home. Two days later, the police came to my house and said I sexually assaulted the girl. All the tests were negative, but I am still getting charged with this.
Judge DeLury denied the motion without an evidentiary hearing. In a written opinion, the judge reviewed defendant's plea hearing, and the discovery in the case. He then applied the four Slater factors:
It is necessary to perform an analysis of each individual factor to decide whether the motion should be granted in the interests of justice.
A. Whether the Defendant has asserted a colorable claim of innocence.
When evaluating a defendant's claim of innocence, courts may look to evidence that was available to the prosecutor and to the defendant through our discovery practices at the time the defendant entered the plea of guilt. Slater at 159. In some cases, the proffered evidence may serve to rebut the assertion of innocence; in others, it may move a court to vacate the plea to the end that justice be done.
At bar, Defendant does not set forth a claim of innocence. At best, he asserts a defense that he was clearly aware of prior to entering his plea. Defendant unequivocally waived this Defense and was informed of the consequences of waiving the defense during the Court's plea colloquy. More importantly, it is not a claim of innocence; he is alleging a negation of the specific mental state required for the crime. Therefore, Defendant has failed to meet the burden required for the first Slater factor. Moreover, the assertion of voluntary intoxication by the Defendant at this juncture of the case has all the earmarks of "buyer's remorse" rather than a good faith assertion of a colorable claim of innocence or defense.
B. The nature and strength of defendant's reasons for withdrawal.
This second factor focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force. Slater at 160. Our case law has identified a number of reasons that warrant withdrawal of a plea. Some examples follow: (1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea, such as finding defendant was misinformed about whether he would receive concurrent sentences if convicted; (2) the defendant was not informed and thus did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea, (3) defendant's reasonable expectations under the plea agreement were not met, (4) the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense "was forgotten or missed" at the time of the plea.
Defendant ultimately seeks to withdraw his plea to present a defense of intoxication at trial. It is arguable that this may be a valid defense. However, Slater requires the Defendant to show credibly why the defense was forgotten or missed at the time of the plea. He expressly waived any defenses at the time of the plea and Ms. Marquez got him a very favorable plea with the serious charges Defendant was facing. Defendant does not allege that Ms. Marquez did not inform him of this defense. The Court during the plea colloquy explored the issue of intoxication with the Defendant. Therefore, Defendant has failed to meet the burden required for the second Slater factor.
C. Whether the plea entered as part of a plea bargain.
Under our case law, defendants have a heavier burden in seeking to withdrawal pleas entered as part of a plea bargain. Smullen, supra, 118 N.J. at 416-17. Plea bargaining is a legitimate, accepted practice in the administration of criminal justice. The system rests on the advantages both sides receive from it; and it depends on the good faith of both parties in carrying out the agreement struck - provided it is reasoned, fair, and approved by the trial court. The court in Slater suggested this not be given great weight. However, it must be given some weight in the case at hand. Defendant negotiated an adequate term of 7 years subject to NERA on First Degree and Second Degree charges. The plea agreement was extremely favorable to Defendant. With convictions for two separate and distinct offenses, the Defendant faced consecutive sentencing with an aggregate maximum of thirty years. Therefore, Defendant has failed to meet the burden required for the third Slater factor.
D. Whether the withdrawal of the plea result in unfair prejudice to the State or unfair advantage to the accused.
There is no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea. Once again, courts must examine this factor by looking closely at the particulars of each case. Certain facts readily demonstrate prejudice, such as the loss of or inability to locate a needed witness, a witness's faded memory on a contested point, or the loss or deterioration of key evidence. The critical inquiry in those and other situations is whether the passage of time has hampered the State's ability to present important evidence. In addition, courts may consider the State's efforts leading up to the plea and whether it is fair to require the State to repeat them. Neither party has addressed this factor, thus it tips in favor of neither.
Moreover, the State is not required to show prejudice if a defendant fails to offer proof of other factors in support of the withdrawal of a plea. Slater at 162. No prejudice has been alleged; the victim is fully cooperating and would like to speak at sentencing. It also must be noted that the Defendant has a juvenile sexual assault conviction and is already subject to Megan's Law restrictions.
Defendant's appeal was initially heard on our excessive sentencing calendar on June 1, 2011. We ordered full briefing and the case was then scheduled on our plenary calendar.
Defendant asserts on appeal, "DEFENDANT'S MOTION TO WITHDRAW HIS PLEA SHOULD HAVE BEEN GRANTED UNDER STATE V. SLATER, 198 N.J. 145 (2009)."
We recognize, as did Judge DeLury, that "courts are to exercise their discretion liberally to allow plea withdrawals." Slater, supra, 198 N.J. at 156. However, we discern no abuse of the trial court's discretion in denying defendant's motion. See Munroe, supra, ___ N.J. at ____ (Slip op. at 23) (stating the "clear error of judgment" constitutes abuse of discretion in denying motion to withdraw plea) (quotation and citation omitted). We affirm, substantially for the reasons set forth in Judge DeLury's cogent written opinion. We add brief comments regarding the first and second Slater factors dealing with whether defendant presented a colorable claim of innocence, and the nature and strength of his reasons for withdrawal. Id. at 157-58.
We begin by observing generally that absent from the record is any competent evidence to support defendant's claim of innocence or to explain his reasons for wishing to withdraw his plea. Defendant has provided no certification nor does the record reflect that defense counsel sought to call him as a sworn witness. Counsel's certification setting forth the facts and summarizing various documents in discovery was improper. See R. 1:6-6 (stating that certifications must be based on personal knowledge as to which affiant is competent to testify); Pressler & Verniero, Current N.J. Court Rules, comment to R. 1:6-6 (2012) ("Affidavits by attorneys of facts not based on personal knowledge but related to them by and within the primary knowledge of their clients constitute objectionable hearsay.").
Counsel's unsworn letter merely attaching the letters was improper as well. Ibid.
Particularly given defendant's admission in his March 2009 letter to Ms. Marquez that he was untruthful to her, the court was not required to consider, for their truth, defendant's unsworn statements in his letters to counsel, his statements to the Avenel evaluator or the probation officer who prepared the Presentence Report. In order to determine whether a claim of innocence is colorable, the court may look to evidence available through discovery, and must not hold a mini-trial, Slater, supra, 198 N.J. 158-59. But as a threshold matter, there must be an evidentially cognizable claim of innocence, and explanation why defendant seeks to withdraw the plea he solemnly entered under oath.
We recognize that trial courts should not displace the jury in resolving factual disputes. "[T]he motion judge need not be convinced that [defendant has presented] . . . a winning argument because, in the end, legitimate factual disputes must be resolved by the jury." Munroe, supra, ___ N.J. at ____ (Slip op. at 15). In this case, had defendant been permitted to withdraw his plea, the State would have been obliged to prove defendant had the requisite state of mind to attempt to commit aggravated sexual assault, notwithstanding his claimed intoxication. State v. Cameron, 104 N.J. 42, 58 (1986) ("[V]oluntary intoxication is a defense to a criminal charge that contains as an essential element proof that a defendant acted purposefully or knowingly[.]"). The level of intoxication is extreme. It "contemplates a condition by which the mental or physical capacities of the actor . . . are so prostrated as to render him incapable of purposeful or knowing conduct." Ibid. See also State v. Merlino, 208 N.J. Super. 147, 150 (App. Div. 1985) (while "one of the effects of alcohol is the removal of inhibitions or restraints[,]" the court notes "intoxication is a defense only if it is so severe that a defendant cannot form the requisite culpable mental state"), certif. denied, 103 N.J. 460 (1986).
While defendant's intoxication may well have affected his judgment, and reduced his self-restraint, he fails to explain his critical admission in his plea allocution that he placed his hands underneath M.D.'s buttocks with the purpose of penetrating her with his finger or penis. Significantly, at that very point in time, he stated, Robert and James entered the room. Defendant's claim of prostrating intoxication also rings hollow because at the very moment, according to defendant's own version to police, he purposefully got up, told the two men that things were not as they appeared, ran out of the house, and drove away.
A key fact here is that defendant expressly waived the intoxication defense in his plea colloquy. Defendant cannot "credibly demonstrate why that defense was 'forgotten or missed' at the time of the plea," Slater, supra, at 160, because the defense was not overlooked. Ms. Marquez asked, "[Y]ou're waiving any defenses that you may have as to your drinking and what . . . affect [that] would have on any defenses against this charge, is that correct?" Defendant agreed.
In that respect, this case is distinguishable from Slater, supra, and Munroe, supra. In those two cases, the defendants' allocutions were not inconsistent with the defenses later proffered in efforts to withdraw their pleas. See Munroe, supra, ___ N.J. at ___ (Slip op. at 19) ("As in Slater, not a word that defendant uttered in court during his plea colloquy was inconsistent with either the account that he gave to the probation officer who prepared his presentence report or his sworn testimony when he moved to withdraw his plea."). Slater claimed after his plea to second-degree possession with intent to distribute that he was just visiting a motel room where drugs were present, and did not actually possess them. Slater, supra, 198 N.J. at 162-63. Munroe claimed, after his plea to aggravated manslaughter, that he acted in self-defense in shooting the victim, who threatened him with a knife, and pinned Munroe against an area from which he could not retreat. Munroe, supra, ___ N.J. at ___ (Slip op. at 7-9, 18-20).
In this case, defendant expressly waived the intoxication defense that he now presses as the basis for withdrawing his plea. He does not claim he was misinformed, or that he did not understand the defense he was waiving. Indeed, he demonstrated in his colloquy with the court that when he did not understand an aspect of his plea, he personally raised it with the court.