April 4, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
M.K.B.,  Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 8, 2012
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-05-0533.
Miles Feinstein argued the cause for appellant.
Marc A. Festa argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent; Mr. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes, Graves, and Harris.
Pursuant to a negotiated agreement with the State, M.K.B. pleaded guilty to one count of third degree endangering the welfare of a child under the age of sixteen, N.J.S.A. 2C:24-4(a). The victim was defendant's biological sister, who alleged defendant began to sexually molest her when she was approximately four years old. The molestation continued until she was approximately twelve years old. Consistent with the plea agreement, the trial court sentenced defendant to a term of four years and ordered that he submit to lifetime community supervision under N.J.S.A. 2C:43-6.4 and register as a convicted sex offender pursuant to N.J.S.A. 2C:7-2.
While awaiting sentence, defendant filed a motion to withdraw his guilty plea pursuant to Rule 3:9-3(e). The motion was supported by letters from the victims recanting their prior accusations. Defendant's sister claimed that she had "lied about all these things" against her brother because she blamed him for causing the family to relocate from Hawthorne to Mahwah. Defendant submitted a certification claiming he was "extremely pressured and coerced" to plead guilty by his attorney.
After considering the evidence presented and applying the standard of review established by the Court in State v. Slater, 198 N.J. 145, 150 (2009), the trial court denied defendant's motion. Defendant appeals from the order denying his motion. We affirm. The following facts will inform our analysis.
On October 24, 2005, Passaic County Prosecutor's Office Special Victims Detectives Mathew Gallup and Emil Trione received a referral from the Hawthorne Police Department involving the sexual molestation of a minor. The detectives responded to the home of then-fifteen-year-old B.B. to investigate her claims that she had been sexually molested by her older brother, who was then thirty years old. B.B. also told the detectives that her older cousin K.C. had also been molested by defendant. After some preliminary investigation and discussion, the detectives transported B.B., her parents, and defendant to the offices of the Passaic County Special Victims Unit so that they could give formal sworn statements regarding the allegations.
Detective Trione interviewed B.B., who at the time resided with her parents and four brothers; defendant is the oldest of the four brothers. Her earliest recollection of defendant's molestation dates back to when she was between four and five years old. She shared a bedroom with three of her brothers; the room contained two sets of bunk beds; she slept in the bottom bunk of one of the sets.
As reported by Detective Trione, B.B. told him that she remembered defendant coming into the bedroom one night. He "unzipped her pajamas and touched the inside of her vagina with his hands and mouth." Although she pretended to be a sleep during the molestation, she attempted to "squirm" away from defendant. B.B. was twelve years old the last time defendant sexually abused her. The incident occurred while she was using her grandmother's bedroom who was visiting family in Turkey at the time. Although the room had a deadbolt lock, defendant was able to gain entry. The following account of the event is taken from a summary of B.B.'s formal statement prepared by Detective Gallup:
After he entered the bedroom, [defendant] proceeded to touch the inside of [B.B.'s] vagina with his hand. During this incident, [defendant] didn't say anything to [B.B.] as [she] pretended to be asleep. But [B.B.] did attempt to squirm away during this incident. [B.B.] commented to Detective Trione that [defendant] would touch her routinely; in fact it happened too many times to count. [B.B] advised Detective Trione that [defendant] felt her breast and made her touch his penis on one occasion. [B.B.] recalled that she was sleeping in the bunk beds closer to the window one night [and when] she woke up and she had [defendant's] penis in her hand. When she awoke she remembered [defendant] telling her that he loved her.
Defendant was arrested on October 24, 2005, and charged with first degree aggravated sexual assault and second degree sexual assault, involving his sister B.B.; with respect to his cousin K.C.,  defendant was charged with third degree aggravated sexual contact, criminal sexual contact, and endangering the welfare of a child. He was released on $200, 000 bail bond secured by the family residence. Defendant was indicted on these same charges on May 2, 2006.
Defendant appeared before the trial court on August 13, 2007, with his attorney, who announced to the court that defendant was prepared to plead guilty pursuant to a negotiated agreement with the State. At the time, under count three of the indictment, defendant was charged with second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), which provides in relevant part as follows:
Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child . . . is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.
[(Emphasis added) (internal citations omitted).]
As explained by the prosecutor, the State agreed to amend count three of the indictment to remove the language emphasized above, thus permitting defendant to plead guilty to third degree endangering the welfare of a child. This would allow the trial court to sentence defendant to a custodial term of no less than three nor more than five years in state prison. N.J.S.A. 2C:43-6(a)(3). By contrast, the range for a second degree offense, as the indictment originally charged, authorized a sentencing range of no less than five and no more than ten years. N.J.S.A. 2C:43-6(a)(2). The State agreed to dismiss the remaining counts in the indictment.
The trial judge questioned defendant directly to verify the terms of the agreement and to satisfy himself that defendant was acting freely of his volition, without pressure or promises not otherwise reflected in the terms of the plea agreement. In this respect, defendant answered "yes" to all of the trial judge's questions concerning his understanding of the plea agreement and his willingness to plead guilty to third degree endangering the welfare of a child (his sister) freely and without coercion of any kind. The judge also emphasized to defendant that, in the judge's opinion, defendant was receiving "two major benefits" under the plea agreement:
[THE COURT]: [O]ne count of aggravated criminal sexual assault is being dismissed. That's a first degree offense. On that offense, if you were found guilty, if you had gone to trial and if you were found guilty, you faced up to 20 years in State Prison with 85 percent before parole eligibility, do you understand that?
[DEFENDANT]: Yes, I do.
[THE COURT]: And even the lowest I could have gone would have been 10. So with no prior record, depending on the circumstances, if I gave you 10 [years] with 85 [percent parole disqualifier], that's eight years, five months, two days that you would have actually had to serve in State Prison before you were even eligible for parole, do you understand that?
[DEFENDANT]: Yes, I do.
[THE COURT]: And needless to say, if I gave you 20 [years], you would have to serve 17 years in New Jersey State Prison [under NERA] before you were even eligible for parole, you understand that?
[DEFENDANT]: Yes, I do.
[THE COURT]: All right. So your lawyer . . . I know he's been working - - he worked his fingers to the bone off on this, these are very, very difficult cases in our system. And this looks like a fair resolution of this for everybody for the family, yourself especially. Instead, under the plea agreement, instead of facing that kind of time, and even just on this endangering, the endangering is being downgraded to a third degree.
The trial judge also explained that defendant was benefiting from avoiding the possibility of consecutive sentences if found guilty of the offenses charged in the indictment.
In addition to the standard plea form required to be completed and signed by defendant with the assistance of his attorney, the record before us also contains the supplemental plea forms required to be completed and acknowledged by a defendant who pleads guilty to a sexual offense. Defendant also completed the form acknowledging his understanding of the process required under the Sex Offender Act, N.J.S.A. 2C:47-1, and his obligation to cooperate with the psychobiological examination administered at the Adult Diagnostic and Treatment Center (ADTC). In addition to these documents, the trial judge addressed defendant directly on these issues. The transcript of the plea hearing reflects defendant's verbal acknowledgment of his understanding of and willingness to abide by the consequences of all of these legal requirements.
After all of these preliminary matters were thoroughly explained and reviewed, defendant gave the following factual basis in support of his guilty plea:
Q: Mr. [B], between 1994 and 2002 you were living in the Borough of Hawthorne, New Jersey, correct?
A: That's correct.
Q: And living with you was someone who's initials are [B.B.],  correct?
A: During parts of that time period, yes.
Q: And [B.B.] was your younger sister, correct?
A: She still is.
Q: [B.B.] is your younger sister, right?
A: Yes, she is.
Q: And [B.B.] between 1994 and 2002, on more than one occasion, you placed your fingers inside of [B.B.'s] vagina?
Q: And the reasons you did that was for you own sexual gratification, correct?
Q: And you understand that doing by that, you impaired or debauched her morals, you understand that?
[DEFENSE COUNSEL]: Sufficient?
[PROSECUTOR]: The State's satisfied, Judge.
THE COURT: All right.
After placing on the record his findings concerning defendant's ability to understand the proceeding and his willingness to waive his rights to trial and give up his presumption of innocence after having had the opportunity to confer with and receive the advice of competent counsel, the trial judge accepted defendant's guilty plea and set a tentative sentencing date of January 4, 2008.
The Division of Youth and Family Services (DYFS) took physical custody of fifteen-year-old B.B. in 2006 and removed her from her home family in Mahwah. DYFS referred B.B. to the Bergen Family Center (the Center) for psychological counseling and treatment as a victim of sexual abuse. The pre-sentence investigation required under Rule 3:21-2 included copies of a series of letters or reports written to the DYFS caseworker by the licensed clinical social worker (LCSW) assigned by the Center to treat both B.B. and her family. These letters memorialize the counseling sessions conducted from September 2006 through October 2007.
These letters described the enormous family pressure asserted against B.B. by her mother. In the first letter dated February 16, 2006, the LCSW stated as follows:
[B.B.] appears to feel like she is being "punished" and can [only] benefit from the support of her [other three] brothers. The important source of [B.B.'s] emotional pain is based on her mother's overt rejection of her. To complicate matters for [B.B.] is her sense that her mother is giving her mixed messages, by claiming she loves [B.B.], but not believing her about her brother's long-standing abuse.
This theme of rejection, blame, and isolation felt by B.B. and caused by her mother is constant throughout the one-year period covered by these reports. After B.B.'s recantation came to light, the LCSW wrote a report to the DYFS caseworker dated September 25, 2006, expressing her doubts about the voluntary and truthful nature of this act by B.B.: "It is the sense of this therapist that [B.B.] recanted in order to return home to her family." When [B.B.] returned home, her mother was asked by DYFS to remove herself from the residence. Mrs. B.'s access to her daughter was also restricted to supervised visitation.
In a report to DYFS dated March 13, 2007, the LCSW indicated that Mrs. B. "continues to remain loyal to her son, and protective of him, and expresses her sadness at his current situation, living alone without transportation in South Jersey, while awaiting a court appearance in Passaic County." In the last report to DYFS, dated October 15, 2007, the therapist concluded: "Up to this date, [Mrs. B.] is adamant that nothing happened and the allegations were not true."
On September 16, 2008, more than a year after the plea hearing, defendant filed a motion to retract his guilty plea. Represented by a different attorney, defendant argued that he was entitled to withdraw his plea based on three reasons: (1) B.B.'s recantation of her previous statements to the prosecutor accusing him of sexually molesting her; (2) his assertion of innocence; and (3) his claim that his former counsel pressured and coerced him into pleading guilty. Defendant's motion also included certifications from his parents and three brothers asserting his innocence and undermining B.B.'s credibility by emphasizing that they never saw or heard anything untoward or sexually inappropriate between defendant and his younger sister. All of the affiants also criticized defendant's prior counsel for "abandoning" defendant and betraying the trust defendant and his family placed in him.
After considering the arguments of counsel, the trial court judge denied defendant's motion, setting forth his reasons in a memorandum of opinion dated April 24, 2009. On that same day, the prosecutor moved to revoke defendant's bail because the State considered him a "flight risk." The prosecutor noted that the family had been against the victim since the revelations of the abuse came to light. He argued that DYFS records showed the great psychological pressure the family exerted against B.B. to urge her to recant. The prosecutor argued that, under these circumstances, defendant was "a danger to the victim."
Finally, given the trial court's ruling denying defendant's motion to withdraw his guilty plea, the State believed the family may take action to assist defendant to leave the jurisdiction. The prosecutor noted that, while on bail, defendant had gone to Turkey with the financial support of his family. Although the trial court denied the State's motion, the judge noted that defendant had failed to report to the ADTC for a psychological evaluation. This alone was a violation of the conditions of his bail and constituted sufficient grounds for its revocation. The trial judge accepted defense counsel's representation that he mistakenly advised his client not to report to the ADTC until the motion to withdraw his guilty plea was decided.
Defendant now appeals the trial court's decision denying his motion to withdraw his guilty plea raising the following argument:
THE COURT BELOW ERRED IN DENYING THE DEFENDANT'S MOTION TO RETRACT THE GUILTY PLEA PURSUANT TO R. 3:21-1 AND R. 3:9-3(e); THE INTERESTS OF JUSTICE AND DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW MANDATE A REVERSAL AND VACATION OF HIS PLEA; AT THE VERY LEAST, AN EVIDENTIARY HEARING MUST BE HELD.
We reject defendant's argument and affirm. A defendant may withdraw his guilty plea before the imposition of sentence if the trial court "determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel." R. 3:9-3(e). A defendant's desire to withdraw his plea must be balanced against the State's "'important interest of finality to pleas, '" Slater, supra, 198 N.J. at 155 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)), as well as the victim's interest in "end[ing] the suffering, " Smullen, supra, 118 N.J. at 418.
This determination lies within the sound discretion of the trial court, and will be reversed "only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999) (citing Smullen, supra, 118 N.J. at 416); see also Slater, supra, 198 N.J. at 156. "As an appellate court, we are required to give great deference to those findings of the trial [court] [that] are substantially influenced by [its] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 445 (internal quotations omitted) (alterations in original).
If, as here, the motion to withdraw a guilty plea is filed before sentencing, trial court judges are encouraged to "exercise their discretion liberally to enable withdrawal of the plea and a trial on the merits, " State v. Deutsch, 34 N.J. 190, 198 (1961). However, a defendant does not have an "absolute right" to withdraw his guilty plea. Simon, supra, 161 N.J. at 444. A defendant's admissions of criminality made at a plea hearing are entitled to great respect. A defendant has the burden of showing "'some plausible basis for his defense, and his good faith in asserting a defense on the merits.'" Slater, supra, 198 N.J. at 156 (quoting Smullen, supra, 118 N.J. at 416).
To determine whether a defendant has met this burden, our Supreme Court established the following four-factor test:
(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of the defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
[Id. at 150.]
Here, the trial judge applied the Slater factors and concluded that defendant was not entitled to the relief sought. The judge explained his analysis in his April 24, 2009 memorandum of opinion. Without restating his analytical process, we agree with the judge that defendant did not present a compelling case in favor of withdrawing his guilty plea.
First, as noted by the trial judge, there is nothing in the record of the plea hearing that indicates defendant did not understand the nature of the proceedings. He was responsive to every question posed to him and gave no indication of being dissatisfied with his counsel's representation. As to the factual basis, the description of the crime defendant admitted committing against his sister was significantly more serious than third degree endangering the welfare of a child. Without question, defendant's admission of culpability at the plea hearing coincided with the emotionally harrowing description of what B.B. told the investigators she endured as a prepubescent child at the hands of her brother, who is fifteen years her senior.
Defendant asserted his claim of innocence only after BB's cryptic recantation dated June 3 2006 which read in its entirety as follows:
I [BB] falsely accused my brother [MKB] of sexually abusing me on more than one occasion while we were both living in Hawthorne NJ
I am not a child abuse or sexual abuse victim and I no longer wish to be treated as such I want to return to my home in Mahwah
Under these circumstances the trial judge had a sufficient basis to question defendant's colorable claim of innocence The enormous pressure asserted against BB by her family coupled with her removal from her home undermines the reliability of her recantation See N.J. Div of Youth & Family Servs v HB 375
N.J.Super. 148 184-85 (App Div 2005) Without more the trial judge correctly found that the facts did not satisfy the first factor under Slater
We incorporate by reference the remainder of the trial judge's analysis and affirm substantially for the reasons expressed therein