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State v. Serrano

Superior Court of New Jersey, Appellate Division

August 30, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JESUS SERRANO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 27, 2013

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-11-3505 and 04-09-3054.

James H. Maynard, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Maynard, on the brief).

John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Anderson, of counsel and on the brief).

Before Judges Harris and Fasciale.

PER CURIAM

Defendant appeals from the denial of his motion to withdraw two guilty pleas. We affirm for the reasons that Judge Joseph C. Cassini, III, expressed in his written opinion dated August 29, 2012.

In May 2005, defendant pled guilty to two counts of third-degree endangering the welfare of a child.[1] At the plea hearing, defendant testified that he touched the breasts of two minors under their shirts. In September 2005, the judge followed the plea agreement and imposed concurrent three-year probationary terms, Community Supervision for Life (CSL) subject to Megan's Law, [2] and the appropriate fines and penalties. Defendant did not file a direct appeal from these convictions.

In July 2010, defendant filed a petition for post-conviction relief (PCR) and contended that he received ineffective assistance from his plea counsel. As part of his PCR petition, defendant sought to withdraw his guilty pleas. In December 2010, Judge Cassini denied the petition for PCR and determined that defendant's request to withdraw his guilty pleas was not a recognizable claim for PCR. We affirmed the denial of the petition without prejudice to allow defense counsel to file a motion to withdraw the guilty pleas. State v. Serrano, No. A-2746-10 (App. Div. Jan. 31, 2012).

In April 2012, defendant moved to withdraw his guilty pleas. In general, defendant argued that he was innocent, the victims recanted their allegations, he pled guilty to save counsel fees, and he did not understand the consequences of pleading guilty because his primary language is Spanish. Judge Cassini conducted oral argument and then issued a written decision. Applying the factors enunciated by the Court in State v. Slater, 198 N.J. 145, 157-58 (2009), Judge Cassini stated that

when defendant pled guilty, he provided a factual basis for this [c]ourt, under oath. He admitted to touching both victims' breasts. The defendant argues that he admitted only to touching the children while "horseplaying" and did not touch them for sexual gratification. However, at the time the plea was taken, this [c]ourt was satisfied with the factual basis provided by the defendant, including the mens rea for both counts of third[-]degree endangering the welfare of a child.
Furthermore, the defendant claims that the two victims' recantations show his innocence. However, the victims were the stepdaughter and daughter of the defendant. It is therefore clear that little weight, if any, should be given to the recantations, based on the familial relationship between the defendant and the victims, especially in light of the fact that the "so-called" recantations come nearly seven (7) years later. Accordingly, the defendant has not shown a colorable claim of innocence.
[D]efendant pled guilty over seven years ago, thus a greater level of scrutiny is needed to evaluate his claim. The defendant claims he only pled guilty because he could not afford his private attorney's trial fee and thought that taking the plea was his only option. The defendant also claims that he did not understand the terms of the plea form because of its "confusing legal language" and because it was only in English while the defendant . . . speaks ...

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