NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2012
On appeal from Superior Court of New Jersey, Law Division, Essex Count Indictment No. 09-06-1624.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney
General, attorney for respondent (Frank J. Ducoat Deputy Attorney General, of
counsel and on the brief).
Before Judges Fisher and St. John.
Defendant Calvin Andrews pleaded guilty to third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Following denial of defendant's motion to withdraw his guilty plea, the judge sentenced defendant to an extended eight-year term of imprisonment with a four-year period of parole ineligibility. The sentence was to run consecutively to the sentences defendant was then serving. The appropriate fees, fines, penalties, and assessments were also imposed.
The record discloses the following facts and procedural history leading to the determination under review.
Defendant, an inmate at Northern State Prison, was charged with attempted murder and aggravated assault for causing serious bodily injury to another inmate. Defendant used the empty barrel of a pen wrapped in a bed sheet to stab the victim-inmate in his neck, causing a tear to an artery. Originally, defendant was represented by the public defender's office and his counsel submitted a pretrial memorandum to the trial judge, as well as a notice of self-defense. The matter was later reassigned to a second judge and defendant's case proceeded before that judge. A trial date was set for late March 2010, but before that date, defendant retained private counsel. The second trial judge was unable to begin jury selection on the scheduled trial date and selection was conducted by a third judge. There was no Sands/Brunson hearing held before jury selection.
After the jury had been sworn, the matter was returned to the second trial judge and he held a Sands/Brunson hearing and determined that defendant's prior conviction for aggravated assault would be sanitized under Brunson, but his other convictions, including two robbery convictions, would not be sanitized. After rendering that decision, the judge asked defendant whether he would be interested in accepting a plea offer from the State. After consultation with the State, defense counsel represented to the court that defendant was willing to enter a plea of guilty.
Defendant entered a plea of guilty to third-degree aggravated assault in exchange for the State's recommendation of an extended term of eight years with four years of parole ineligibility. A factual basis was given by defendant, including an acknowledgment by defendant that he was not acting in self-defense when he struck the inmate. Sentencing was scheduled for June 28, 2010.
Prior to that date, defendant wrote to his private counsel stating that he wished to withdraw his plea of guilty. On June 26, defendant filed a pro se notice of motion to withdraw his plea of guilty. In his attached certification, defendant stated his innocence, asserting he had acted in self-defense and under duress. Defendant sought to withdraw his guilty plea so that he could proceed to trial and avail himself of the defenses of duress and self-defense. Defendant contends that counsel had advised him prior to selection of the jury that all his prior convictions would be sanitized. Assuming this was correct advice, defendant did not excuse a juror who had been the victim of a robbery, and who also had a family member who had been shot and paralyzed during a robbery. Once the judge ruled his ...