NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2078-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWIN ESTRADA,
Defendant-Appellant. _________________________________
Submitted September 12, 2016 – Remanded September 26, 2016 Resubmitted May 14, 2018 – Decided June 12, 2018
Before Judges Sabatino, Nugent and Currier.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-03-0444.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the briefs).
Dennis Calo, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, on the brief; Annmarie Cozzi, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
This matter returns to this court following a remand we called
for in our September 2016 unpublished opinion. State v. Estrada,
("Estrada I") No. A-2078-14 (App. Div. Sep. 26, 2016), motion for
leave to appeal denied, 228 N.J. 500 (2017). Our opinion vacated
an order nullifying a negotiated plea agreement and directed the
trial court to consider the nullification issue anew, using
appropriate legal standards. Id., slip op. at 16. On remand, a
different judge in the trial court reconsidered the issues and
independently concluded the plea agreement should be set aside.
For the reasons that follow, we vacate the trial court's May
15, 2017 nullification order, reinstate the original negotiated
guilty plea, and remand the matter for sentencing.
I.
We substantially incorporate by reference the factual and
procedural background described in our September 2016 opinion. We
supplement and update that background as follows.
In March 2011, defendant Edwin Estrada and his co-defendant,
Andrew Abella, were charged in a thirteen-count indictment, the
first eleven counts of which pertained to Estrada. Count one
charged defendant with conspiring with Abella to commit burglary.
Counts two and three charged both men with burglary. Count four
2 A-2078-14T3 charged defendant with murder, count five with burglary, count
seven with robbery, counts six and eight with felony murder
predicated on the burglary and robbery counts, respectively, count
nine with credit card theft, and counts ten and eleven with weapons
offenses.
As its most serious count, the indictment accused defendant
of murdering an elderly victim after breaking into the victim's
house to rob him. The State's proofs reflected that defendant
repeatedly struck the victim in the head with a metal pot, and
then fled the scene with the victim's credit card. Defendant was
age eighteen at the time, and he had no prior criminal or juvenile
record. The victim, the grandfather of one of defendant's
acquaintances, was age eighty-eight.
Following the indictment, defendant was evaluated by a board-
certified psychiatrist, Dr. Azariah Eshkenazi, an Assistant
Professor of Psychiatry at the Mount Sinai School of Medicine. In
his report, the expert diagnosed defendant with bipolar disorder
and polysubstance abuse. Dr. Eshkenazi opined that, at the time
of the lethal events in the victim's home, defendant's "ability
to formulate an intent [to kill the victim] was certainly impaired
to one degree or another." The expert attributed that impairment
to defendant's "psychiatric condition and the drugs that he abused
. . . ." The expert's findings are consistent with defendant's
3 A-2078-14T3 account that he had ingested angel dust and smoked marijuana in
the victim's bathroom before the attack, had begun to hallucinate,
and perceived that the victim was armed and about to shoot him.
The State disputed defendant's claims of diminished capacity.
Its case was bolstered by the fact that defendant had made
inculpatory statements when he was interviewed by police after his
arrest. There was also clear and undisputed evidence that
defendant was the person who had attacked the victim.
The prosecutor's office and defense counsel engaged in
lengthy plea negotiations for about a year. During that time, the
prosecutor's office had an estimated thirty discussions with
members of the victim's family. Some of those family members
wanted the maximum punishment imposed on defendant, while others
were willing to accept a plea agreement that exposed defendant to
a less severe sentence.
On January 22, 2013, defendant and his counsel appeared before
a judge in the Criminal Part ("the first judge") and presented to
him a negotiated plea. Under the terms of that plea, defendant
agreed to forego a trial and plead guilty to a reduced charge of
first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). The
State, in turn, agreed to recommend to the court a sentence of a
twenty-seven-year custodial term, subject to an 85% parole
ineligibility period under the No Early Release Act ("NERA"),
4 A-2078-14T3 N.J.S.A. 2C:43-7.2. The first judge accepted the factual basis
placed on the record to support the aggravated manslaughter
conviction, as well as the terms of the plea agreement. The matter
was then set down for sentencing.
On March 8, 2013, the parties appeared before a different
judge for sentencing ("the second judge"). Following an extended
colloquy, the second judge vacated the plea. Defendant filed a
motion for leave to appeal, which this court denied.
Defendant was tried before a third judge, and a jury, in a
four-week trial ending in July 2014. He was found guilty of all
eleven counts of the indictment.
On October 24, 2014, defendant was sentenced on count four,
first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), to a sixty-
year term of incarceration, with eighty-five percent parole
ineligibility under NERA. Counts six, eight, ten, and eleven
merged into count four. The prison terms for the remaining counts
were made concurrent to count four.
Defendant appealed to this court. Among other things, he
argued the second judge abused her discretion by setting aside the
negotiated plea. He also raised various contentions of trial
error.
In our unpublished September 2016 opinion, we reached only
the plea nullification issue, finding that the second judge had
5 A-2078-14T3 erred in several respects. Estrada I, slip op. at 11.
Specifically, we held that the second judge erred when she:
concluded that voluntary intoxication was not a defense to
purposeful murder; found that the expert report from the examining
psychologist, Dr. Eshkenazi, did not support defendant's
diminished capacity defense; invoked her own life experiences to
inform her legal judgment; and gave undue weight to the statements
of the victim's family in deciding whether to accept or reject the
plea. Id. at 11-14.
Because of these errors, we vacated the 2013 order setting
aside the plea and remanded for "reexamination of the negotiated
plea under the appropriate legal criteria expressed in Rule 3:9-
3(e) and case law," and "[a] fresh assessment of whether the plea
should or should not be set aside . . . ." Id. at 14. In so
ruling, we declined to "determine in advance the scope of what the
trial court [could] consider in the remand proceeding," including
"what, if any, weight or consideration [should] be accorded to the
[trial] proofs" or the guilty verdicts, leaving these questions
"of scope and relevance" to be decided in the first instance by
the trial court. Id. at 14-15.
Following a hearing, a fourth judge set aside the plea
agreement a second time, after finding the agreement did not serve
the interests of justice. The judge largely relied on the report
6 A-2078-14T3 and trial testimony of the State's psychiatric expert, Dr. Steven
Simring, along with the presentence report and the trial testimony
of both defendant and Dr. Eshkenazi. Following her ruling on the
plea, the judge ruled that the sixty-year prison sentence imposed
after the trial should "remain in full force and effect."
Defendant now appeals again. He renews these arguments from
his original brief that were not addressed in our September 2016
opinion:
[POINT I (ORIGINAL APPEAL) OMITTED.]
POINT II (ORIGINAL APPEAL)
THE STATE'S EXPERT IMPROPERLY PROVIDED IRRELEVANT AND HIGHLY PREJUDICIAL TESTIMONY WHICH REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS (Partially Raised Below).
A. Ultimate Issue Testimony.
B. Irrelevant and Prejudicial Responses.
POINT III (ORIGINAL APPEAL)
THE COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT THE FELONY AND THE DEATH MUST BE INTEGRAL PARTS OF ONE CONTINUOUS TRANSACTION AND THAT THE DIMINISHED CAPACITY DEFENSE WAS RELEVANT TO THIS QUESTION (Partially Raised Below).
POINT IV (ORIGINAL APPEAL)
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE BECAUSE THE COURT IMPROPERLY FAILED TO FIND MITIGATING FACTOR 4, INADEQUATELY CONSIDERED DEFENDANT'S YOUNG AGE, IMPROPERLY FOUND
7 A-2078-14T3 AGGRAVATING FACTOR 1, AND ENGAGED IN IMPERMISSIBLE DOUBLE-COUNTING.
REPLY POINT I (ORIGINAL APPEAL)
IT WAS AN ABUSE OF DISCRETION TO REJECT DEFENDANT'S GUILTY PLEA.
REPLY POINT II (ORIGINAL APPEAL)
THE STATE'S EXPERT IMPROPERLY TESTIFIED TO THE ULTIMATE ISSUE, REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.
He also raised these points in a pro se supplemental brief:
PRO SE POINT I
FAILURE OF THE TRIAL COURT TO SUBMIT WRITTEN COPIES OF JURY INSTRUCTIONS T[O] JURORS FOR USE IN DELIBERATIONS WAS IN VIOLATION OF R. 1:8-3(B)(2) AND VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Raised Below).
PRO SE POINT II
THE TRIAL COURT ERRED IN ALLOWING HEARSAY TESTIMONY REGARDING THE DECED[E]NT'S STATEMENTS IN VIOLATION OF THE HEARSAY RULE.
PRO SE POINT III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DISALLOWING ANY MENTION TO THE JURORS BY EITHER THE DEFENDANT, HIS FAMILY MEMBERS, OR THE DEFENSE PSYCHIATRIC EXPERT, OR ANY WITNESSES FOR EITHER THE DEFENSE OR THE PROSECUTION, THAT THE DEFENDANT HAD PREVIOUSLY ATTEMPTED SUICIDE IN SPITE OF THE FACT THAT THE STATE'S PSYCHIATRIC EXPERT MENTIONED AND TOOK INTO ACCOUNT, THESE ATTEMPTED SUICIDES IN HIS REPORTS. (Raised Below).
8 A-2078-14T3 PRO SE POINT IV
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DISALLOWED ANY TESTIMONY RELEVANT TO DEFENDANT'S CLAIMS THAT HE WAS SEXUALLY ABUSED AS A CHILD BY HIS FATHER. (Raised below).
PRO SE POINT V
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT ABUSED ITS DISCRETION AND ALLOWED THE PROSECUTOR TO PRESENT HYPOTHETICAL QUESTIONS AND COMMENTS REFERENCING DEFENDANT BY NAME. (Partially Raised Below).
PRO SE POINT VI
THE STATE WITHHELD CRITICAL IMPEACHMENT EVIDENCE IN THE FORM OF A PLEA AGREEMENT WITH DEFENDANT'S CO-DEFENDANT, ANDRE ABELLA, WHO TESTIFIED AGAINST DEFENDANT.
PRO SE POINT VII
THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF HEREIN AND THOSE ARTICULATED BY APPELLATE COUNSEL WHEN VIEWED IN THEIR TOTALITY, DEPRIVED DEFENDANT OF A FAIR TRIAL UNDER THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION, AMENDMENT XIV.
In addition, defendant raises in his supplemental brief the
following points contesting the outcome of the remand:
POINT I (POST-REMAND APPEAL)
THE TRIAL COURT ERRED IN REJECTING THE PLEA AGREEMENT. DEFENDANT MUST BE RESENTENCED IN ACCORDANCE WITH THE PLEA AGREEMENT.
A. The Trial Court Erred In Rejecting The Plea Agreement On Remand Because Specific Performance Of The Plea Agreement Is The
9 A-2078-14T3 Appropriate Remedy Following The Wrongful Rejection Of A Plea.
B. Even If Specific Performance Of The Plea Agreement Were Not Required, The Trial Court Was Required To Treat All Parties As They Were Situated At The Time Of The Wrongful Plea Rejection. The Court Could Not Consider The Fact Of Defendant's Conviction Or Any Of The Trial Evidence When Determining If The Plea Agreement Was In The Interests Of Justice.
1. The remand court's reasons for considering the trial evidence were flawed.
2. Out-of-state cases further demonstrate that the remand court could not consider anything that was not before the original judge who rejected the plea agreement.
C. Alternatively, It Was An Abuse Of Discretion To Reject This Plea Agreement.
II.
We begin our post-remand review by addressing the pivotal
issues concerning the fourth judge's nullification of defendant's
plea agreement with the State. As a predicate to that analysis,
we set forth key aspects of the record that emerged before and at
trial.
Defendant's Statement to the Police
On the night of his arrest, defendant gave a recorded
statement to police that would later be played for the jury at
trial. In his statement, defendant admitted he broke into the
10 A-2078-14T3 victim’s apartment because he needed money. Defendant said he was
friends with Abella, who told him that Abella's grandfather, the
victim, kept "crisp fifties" in his apartment. Defendant told
police he previously had broken into the apartment with Abella to
steal goods on two other occasions, once in May and once in June.
Defendant walked into the apartment on July 15 through the
unlocked front door because he wanted to steal money to buy drugs.
Defendant had incorrectly assumed the victim was not home, but
discovered that he was on the couch in front of the television,
apparently asleep. Defendant became concerned that the victim
might "start[] hurting [him]," and might have a gun. For his
"safety," defendant began looking for a weapon to protect himself.
Defendant saw a knife in the kitchen, but grabbed a pot instead,
because he did not want to murder the victim, and just wanted to
knock him out.
According to defendant, upon seeing him, the victim started
"bugging out" and "grabbing" him. The victim then put his hand
behind his back as if to pull something out. Defendant used the
pot he had taken from the kitchen to hit the victim on the head
"[p]robably two or four times . . . ." The victim was breathing
heavily and said, "stop, stop," after which defendant struck him
once more.
11 A-2078-14T3 After the attack, defendant cleaned blood off of his sneakers
and placed a pillow on the floor to absorb the blood flowing from
the victim's head. Defendant started panicking because he was
concerned about being arrested for murder, and so he fled, taking
the victim's wallet and phone with him and leaving behind a watch
that had broken off of his wrist during the assault.
Defendant further admitted that, after leaving the apartment,
he went to New York, where he used the victim's credit card to buy
food and other goods.
Factual Basis for the Diminished Capacity Defense
On September 6, 2012, Dr. Eshkenazi conducted a psychological
evaluation of defendant while he was in custody. Dr. Eshkenazi's
findings would later form the basis of both defendant's guilty
plea to aggravated manslaughter and, after that plea was vacated,
his sole defense at trial.
Defendant told Dr. Eshkenazi that he could not be sure what
had happened the night that he burglarized the victim’s apartment
and attacked him, because he was under the influence of
Phencyclidine ("PCP"), a mind-altering drug he was regularly
taking to help him with the "voices" in his head. Defendant
related to Dr. Eshkenazi that on the night of the burglary he
remembered "breaking into a house through a window, sitting on a
toilet in the house and smoking [m]arijuana." He also recalled,
12 A-2078-14T3 as he had told police, that he believed the victim had a gun.
Defendant also told Dr. Eshkenazi that just before he struck the
victim with the pot he heard voices telling him "[d]o it, do
it . . . ."
In his report, Dr. Eshkenazi concluded that: "as a result
of [defendant's] psychiatric condition, that of Bipolar Disorder
and Attention Deficit Hyperactivity Disorder superimposed on drug
and alcohol abuse, his ability to formulate an intent was certainly
impaired to one degree or another."
The record contained no other psychological examination of
defendant at the time the court set aside his guilty plea to
aggravated manslaughter on March 8, 2013.
After the court set aside the plea, Dr. Simring, the State's
psychological expert, examined defendant on two dates in September
2013. In October 2013, Dr. Simring issued a report containing his
conclusions and findings, which negated defendant's claim of
diminished capacity.
Trial Testimony
At trial, in further support of his defense of diminished
capacity and intoxication, defendant presented Dr. Dmitri Primak
of the Bergen Regional Medical Center, who testified that defendant
had been admitted to the hospital on May 25, 2010, a few weeks
before the fatal assault. Dr. Primak testified that defendant had
13 A-2078-14T3 been discharged on June 4 with a diagnosis of PCP dependence,
attention deficit disorder, and anti-social traits.
Additionally, Dr. Eshkenazi testified, consistent with his
report, that defendant's drug intake "caused him to become almost
psychotic, superimposed on his condition of bipolar disorder,"
which Dr. Eshkenazi "found affected his ability to form motive or
intent at the time of the crime to one degree or another."
Defendant testified on his own behalf. As he had in his
police statement, defendant admitted that he: broke into the
victim's apartment without permission intending to steal money to
feed his PCP addiction; took a pot from the kitchen for protection
because he believed the victim had a gun; bludgeoned the victim
with the pot between two and four times; fled to New York with the
victim's wallet and phone; and, in New York, used the victim's
credit card to purchase food and other items. He also admitted
burglarizing the victim's apartment with Abella a month before the
attack. Defendant did not testify about the other prior burglary
on which he was also being tried.
Defendant's trial testimony differed from his recorded
statement to police in several respects. First, defendant
unequivocally told police that he remembered what happened the
night of the attack. But, at trial, defendant testified that he
"blacked out" around the time that he was striking the fatal blows.
14 A-2078-14T3 Defendant also did not tell police he had taken drugs before
attacking the victim, while, at trial, he testified that, prior
to entering the apartment, he took PCP and marijuana, which
initially made him feel ecstatic, but later made him feel paranoid.
Also, defendant testified that, after entering the apartment, he
immediately went to the victim’s bathroom to smoke more marijuana
and PCP for twenty to twenty-five minutes, because he was feeling
"paranoid" and "wanted a . . . secure place," but defendant had
not told police either that he went to the bathroom upon entering
the apartment or that he ingested drugs while inside the apartment.
Dr. Simring, who the court qualified as an expert in forensic
psychiatry, testified on behalf of the State. Dr. Simring disputed
Dr. Eshkenazi's conclusions, particularly that defendant suffered
from bipolar disorder. Dr. Simring noted that when defendant was
released from Bergen Regional Medical Center a few weeks before
he attacked the victim, the hospital had not diagnosed him with
bipolar disorder or any other psychiatric illness other than
polysubstance abuse. Dr. Simring acknowledged that defendant was
provisionally diagnosed with A.D.H.D., but that there were no
signs of psychosis, depression, mania, or bipolar disorder.
Dr. Simring testified that, "at all phases of this incident,"
defendant "was able to act with purpose and knowledge . . . ." In
reaching this conclusion, Dr. Simring rejected defendant's
15 A-2078-14T3 testimony that he "blacked out," because defendant had an "unbroken
stream of memory" of certain parts of the event, including seeing
the victim, deciding to grab a pot, and striking the victim with
it. Dr. Simring also rejected defendant's testimony that he had
heard voices, because there was no "psychiatric evidence" or
"background evidence" that supported defendant's assertion.
Part of Dr. Simring's basis for discounting defendant's
version of events was that it differed greatly from the version
defendant had previously told police, which, Dr. Simring
testified, "comport[ed] very, very closely" to other evidence in
the case including the "physical evidence." Defense counsel
objected to that portion of Dr. Simring's testimony, but the
objection was overruled without discussion.
The Jury Charge
At the charge conference, counsel initially agreed that the
jury could consider diminished capacity or intoxication as a
defense to the charges of purposeful murder (count four), second
degree burglary (count five), robbery (count seven), felony murder
predicated on robbery (count eight), and the two possession of a
weapon charges (counts ten and eleven), but not the remaining
counts. Consistent with this consensus, the court's final jury
charge limited the jury's consideration of the defense to these
counts only. The jury was specifically directed not to consider
16 A-2078-14T3 either defense with respect to felony murder predicated on burglary
(count six).
Before deliberations began, however, defendant reversed
course and asked the judge to instruct the jury that it could
still consider diminished capacity and intoxication as defenses
to felony murder based on burglary under count six, even if it
found defendant guilty of the predicate second-degree burglary.
The court rejected defendant's request, finding that the adduced
facts did not support such an instruction.
III.
Defendant's threshold argument in this appeal is that he was
entitled to "specific performance" of his plea bargain, based on
our holding in Estrada I that the second judge had committed
material errors when she set aside the plea in March 2013.
Defendant argues that the fourth judge had an "independent
obligation" to reinstate the plea and issue a conforming sentence.
We disagree. Defendant's argument is inconsistent with the terms
of this court's remand and also with controlling precedent.
Defendant did not raise a specific performance argument
below. Rather, he conceded in the trial court that the fourth
judge had discretion to reassess the plea agreement to determine
whether it served the interests of justice. Therefore, the
decision to reassess the plea should be reviewed for plain error,
17 A-2078-14T3 pursuant to which any error should be disregarded unless "clearly
capable of producing an unjust result." State v. Ross, 218 N.J.
130, 143 (2014); R. 2:10-2.
"Plea bargaining has become firmly institutionalized in this
State as a legitimate, respectable and pragmatic tool in the
efficient and fair administration of criminal justice." State v.
Taylor, 80 N.J. 353, 360-61 (1979) (citations omitted). "It is
commonly known that the vast majority of all cases are
resolved through plea agreements with the State." State v. Munroe,
210 N.J. 429, 447-48 (2012).
Nevertheless, as this court has previously explained, "[p]lea
bargaining is not a right of a defendant or the prosecution. It
is an accommodation which the judicial system is free to institute
or reject." State v. Brimage, 271 N.J. Super. 369, 379 (App. Div.
1994). Accordingly, "[i]f at the time of sentencing the court
determines that the interests of justice would not be served by
effectuating the agreement . . . the court may vacate the
plea . . . ." R. 3:9-3(e).
"A plea agreement is . . . governed by contract-law concepts."
State v. Pennington, 154 N.J. 344, 362 (1998) (partially abrogated
on other grounds by State v. Pierce, 188 N.J. 155, 168 (2006))
(citations omitted). Specifically, "the parties agree that
defendant will plead guilty to certain offenses in exchange for
18 A-2078-14T3 the prosecution's recommendation to dismiss other charges and
suggest a certain sentence, all subject to the right of the court
to accept or reject the agreement in the interest of justice."
State v. Means, 191 N.J. 610, 622 (2007). Though the agreement
contractually binds both the defendant and the State to its terms,
the court is not a party to the agreement and cannot be so bound.
See Santobello v. New York, 404 U.S. 257, 262 (1971) ("There is,
of course, no absolute right to have a guilty plea accepted."
(citations omitted)); State v. Warren, 115 N.J. 433, 442 (1989)
(holding that the parties to a plea agreement "are not empowered
to negotiate a sentence that can have any binding effect" on the
court); State v. Kovack, 91 N.J. 476, 484 (1982) (holding that
neither the defendant nor the State "has an absolute right to have
the sentence conform to the specific terms of the agreement");
State v. Rosario, 391 N.J. Super. 1, 14-15 (App. Div. 2007) ("[T]he
plea judge can always reject a plea agreement, and generally
defendant has no right to require the judge to accept it."). Not
only is the court not bound by the plea, but the court's
conditional concurrence is an express term of the agreement. R.
3:9-3(c).
In support of his contrary position, defendant relies
principally on four New Jersey cases: Means, 191 N.J. at 622;
State v. Conway, 416 N.J. Super. 406 (App. Div. 2010); State v.
19 A-2078-14T3 Madan, 366 N.J. Super. 98 (App. Div. 2004); and State v. Salentre
("Salentre I"), 242 N.J. Super. 108 (App. Div. 1990). None of
these cases compels or persuades us to adopt defendant's position
on the specific performance issue.
Means reinstated an improperly vacated plea and remanded "for
further proceedings consistent with [its] opinion," but declined
to order the trial court to issue the negotiated sentence
automatically without first assessing the plea under Rule 3:9-
3(e). Means, 191 N.J. at 622. Indeed, the Court's rationale for
the remand was, in part, that "[b]y vacating the plea agreement
without first allowing notice to be given to the victims, the
trial court was not fairly able to determine whether to accept the
plea or reject the plea agreement in the interest of justice."
Ibid. Therefore, Means preserved the judicial role in evaluating
pleas, contrary to the "specific performance" remedy defendant now
asserts was necessary here.
As to the three other cases on which defendant relies, Conway,
416 N.J. Super. at 413; Madan, 366 N.J. Super. at 115; Salentre
I, 242 N.J. Super. at 113, defendant is correct that, in each
case, this court directly reinstated plea agreements that had
previously been improperly vacated. But these opinions did not
hold that automatically issuing the negotiated sentence from the
plea was the only acceptable remedy for an improperly rejected
20 A-2078-14T3 plea. Rather, this court exercised in those matters its
discretionary power of original jurisdiction. See N.J. Const.
art. VI, § 5, ¶ 3 ("[T]he Appellate Division of the Superior Court
may exercise such original jurisdiction as may be necessary to the
complete determination of any cause on review."); R. 2:10-5
(incorporating the constitutional provision with mostly identical
language).
Here, by contrast, we declined in September 2016 to invoke
our original jurisdiction to order a specific sentence. Estrada
I, slip op. at 10. Adhering to our direction to undertake a "fresh
assessment" of the plea, the trial court did not err in doing so.
Defendant also claims five opinions from other jurisdictions
support the remedy he seeks: United States v. Rea-Beltran, 457
F.3d 695 (7th Cir. 2006); United States v. Shepherd, 102 F.3d 558
(D.C. Cir. 1996); Lewandowski v. Makel, 949 F.2d 884 (6th Cir.
1991); United States v. Gaskins, 485 F.2d 1046 (D.C. Circ. 1973);
Williams v. State, 605 A.2d 103 (Md. 1992).
The courts in Rea-Beltran, Shepherd, and Williams did not
order specific performance of plea agreements, as defendant
claims. Rather, in each case, the reviewing court preserved the
lower court's ability to accept or reject the negotiated sentence.
21 A-2078-14T3 See Rea-Beltran, 457 F.3d at 703; Shepherd, 102 F.3d at 564;
Williams, 605 A.2d at 111.1
In sum, defendant is not entitled to specific performance of
the plea agreement. Instead, an independent assessment of the
plea under the governing "interests of justice" standard is
required.
IV.
We next address what evidence the fourth judge was permitted
on remand to consider when she was reassessing defendant's plea
agreement. Defendant argues that the judge erred by considering
evidence that emerged at trial as part of the overall analysis.
We disagree.
Rule 3:9-3 neither defines the term "the interests of
justice," nor lists the factors that should inform whether an
agreement is consistent with such interests. This gap has been
filled, however, by case law.
1 To be sure, the Gaskins and Lewandowski courts went further and directly mandated reinstatement of the sentences that had been negotiated in the underlying plea agreements, but those cases are distinguishable from the present case. In Gaskins, the D.C. Circuit remanded "with instructions to accept a plea of guilty," but, unlike here, the lower court's error concerned the factual basis for the plea, not the justness of the negotiated sentence. Gaskins, 485 F.2d at 1049. The Sixth Circuit ordered specific performance of a plea in Lewandowski. But that case is also distinguishable on its unique facts involving the defendant's appellate attorney's constitutionally defective performance in having the negotiated plea vacated. Lewandowski, 949 F.2d at 886.
22 A-2078-14T3 Several principles have emerged from the few published
decisions involving the review of judicial nullification of a plea
agreement. First, we held in our September 2016 opinion, although
a sentencing judge may consider the victim's family's wishes in
assessing whether a plea serves the interests of justice, the
court must not forfeit its role as arbiter of the plea agreement.
Estrada I, slip op. at 16. See also Means, 191 N.J. at 622; Madan,
366 N.J. Super. at 114.
Second, a court cannot ignore the defendant's criminal record
as set forth in the presentence report. See State v. Daniels, 276
N.J. Super. 483, 488 (App. Div. 1994). If the defendant's criminal
record is extensive, it may require the court to find that an
overly lenient sentence does not serve the interests of justice.
See Ibid. But see Madan, 366 N.J. Super. at 111 (holding that the
defendant's criminal record "though not insubstantial, was
insufficient to serve as a rational underpinning to reject an
otherwise reasonable plea").
Third, a mistake of law or fact may warrant a finding of an
abuse of discretion. See id. at 110; Salentre I, 242 N.J. Super.
at 112-13.
Fourth, when assessing whether a plea agreement serves the
interests of justice, courts should "evaluate the facts, both
admitted and debated, apply those facts that can be established to
23 A-2078-14T3 the law, and then test the plea agreement against the facts, the
law, and the range of permissible sentences under the Code."
Madan, 366 N.J. Super. at 114 (emphasis added).
Fifth, courts should not favor one version of the facts "when
several versions are likely to be presented to the jury." Ibid.
"The possibility of a defendant being found guilty of a greater
offense . . . does not, in and of itself, provide a basis for
rejecting a plea." Id. at 110.
On remand in this case, the fourth judge considered the
reports and trial testimony of both the State and defense expert
witnesses, as well as the March 2013 presentence report that
predated the initial plea nullification. The fourth judge stated
that there was "no credible evidence in the record that the
defendant suffered from bipolar disorder, nor . . . that defendant
was suffering from diminished capacity at the time of the crime."
Relying on Dr. Simring's conclusions, the judge noted defendant's
hospitalization records contained no evidence of mental illness,
although there was evidence that defendant "suffered from
polysubstance abuse, and used a variety of drugs on a regular
basis." The judge observed that defendant recalled several
specific details about the events surrounding the murder, which
showed that his actions were knowing and purposeful. As the judge
concluded:
24 A-2078-14T3 Taking into account the totality of the circumstances, the manner and method of the murder, the psychiatric evaluations, and the ability of defendant to recall the most minute detail on the night of the murder, the defense of diminished capacity has no basis in the record. Dr. Simring was clear in his opinion that defendant had the ability to form the requisite intent to commit the crimes. Therefore, this court finds that it is not in the interest of justice to accept the plea agreement entered into by the parties . . . .
[(Emphasis added).]
Because the question of what evidence the trial court was
entitled to consider under Rule 3:9-3 is a strictly legal
determination, this court's review of that issue is de novo. See
State v. Handy, 206 N.J. 39, 45 (2011) ("[A]ppellate review of
legal determinations is plenary.").
Defendant argues that the trial court erred by looking beyond
the limited evidence available when the plea was first set aside
in 2013. Defendant further contends that all of the trial proofs
were "tainted by judicial error," since the trial itself was the
result of the errors made by the court when vacating the plea.
The State counters that the "interests of justice" standard
necessarily involves an assessment of the totality of the
circumstances and that "justice should not be blind" to trial
evidence.
25 A-2078-14T3 Rule 3:9-3 expressly preserves the judicial power to accept
or reject a plea until the time of "sentencing." The original
foundation for the rule was a memorandum from the Administrative
Director of the Courts that refers to the judge evaluating the
plea as the "sentencing judge." Edward B. McConnell,
Administrative Memo Re: Criminal Pleas, 94 N.J.L.J. No. 1, Index
Page 1 (1971). See also Pressler & Verniero, Current N.J. Court
Rules, cmt.1 on R. 3:9-3 (2018) (explaining that Rule 3:9-3
"follows generally the guidelines set forth" in this cited
memorandum). The rule defers assessment of whether a plea serves
the interests of justice until sentencing specifically because
when "a plea is entered the judge ordinarily has before him only
the offense," and a "fuller picture of the offender does not emerge
until . . . the judge has had the benefit of a defendant's
presentence report." State v. Brockington, 140 N.J. Super. 422,
427 (App. Div. 1976).
As a general matter, courts have long preferred broadening,
rather than restricting, the information a judge may consider at
sentencing. For example, our court rules and case law provide
that a presentence investigation and report is mandatory. Rule
3:21-2(a); N.J.S.A. 2C:44-6(a); State v. Roth, 95 N.J. 334, 357
(1984). The presentence report "shall contain all presentence
material having any bearing whatever on the sentence," Rule 3:21-
26 A-2078-14T3 2, and may be "updated," as the court directs, prior to a
resentencing hearing that follows a remand. State v. Tavares,
286 N.J. Super. 610, 616 (App. Div. 1996). In the court's
discretion, it may further decide, before imposing sentence, to
order additional medical or psychological testing of a defendant.
N.J.S.A. 2C:44-6(c).
In imposing a sentence that arises from a negotiated plea,
the judge "may look to other evidence in the record," besides the
plea colloquy, and the court is required to "consider 'the whole
person,' and all the circumstances surrounding the commission of
the crime." State v. Sainz, 107 N.J. 283, 293 (1987) (citations
omitted). Those circumstances may include the court's prior
resolution of "evidentiary issues" and other "developments at
pretrial conferences," as well as guilty pleas or trials of co-
defendants. State v. Salentre ("Salentre II"), 275 N.J. Super.
410, 419, n.3 (App. Div. 1994). Combining these principles, the
"interests of justice" assessment of a plea agreement necessarily
"consider[s] . . . all the circumstances surrounding the commission
of the crime," whether those circumstances were articulated at a
plea proceeding or not. Sainz, 107 N.J. at 293.
Accordingly, when testing the plea agreement in Madan against
the record, we noted the trial facts were not significantly
different from and were "little more incriminating" than the facts
27 A-2078-14T3 available at the time of the plea. Madan, 366 N.J. Super. at 104.
This is an assessment that we obviously could not have made without
considering the trial facts. We found in Madan that the jury
instructions on aggravated manslaughter, ordinary manslaughter,
and self-defense were "warranted by the evidence" presented at
trial, id. at 110, "as the presentence report presaged . . . ."
Id. at 114.
In the present case, our September 2016 opinion directed the
trial court to reassess the plea and, if the plea was reinstated,
to "resentence defendant accordingly." Estrada I, slip op. at 16.
Adhering to the expansive approach to sentencing-related matters
in our State, the trial court was required to view defendant as
he stood "before the court on that day," State v. Randolph,
210 N.J. 330, 354 (2012), which necessarily included testing the
plea against the trial facts and the law. See Madan, 366 N.J.
Super. at 104.
Therefore, the fourth judge did not err on remand by
considering the evidence that emerged at trial in evaluating the
"interests of justice." Doing so was consistent both with
sentencing law generally and also with Madan.2
2 Defendant cites several cases from other jurisdictions in which he claims courts did not consider trial evidence when reassessing a plea agreement on remand. See United States v. Navedo, 516 F.2d 293 (2d Cir. 1975); State v. Darelli, 72 P.3d 1277 (Ariz. Ct. App.
28 A-2078-14T3 V.
Having concluded the trial court properly considered the
evidence that emerged at trial as part of the "interests of
justice" assessment, we turn to consider defendant's argument that
the court misapplied its discretion by setting aside the plea.
The crux of the trial court's remand decision was its finding
that "the defense of diminished capacity ha[d] no basis in the
record." This pivotal finding was inaccurate. Both Dr. Eshkenazi
and defendant testified at trial that defendant's drug abuse and
psychological issues impaired his ability to act with purpose on
the night of the offense. Based on this testimony, the jury was
appropriately instructed to "consider and weigh all of the evidence
of the defendant's mental state, including evidence of bipolar
disorder superimposed on drug abuse, in determining whether
2003); In re Alvernaz, 2 Cal. 4th 924 (1992); People v. Allen, 815 N.E.2d 426 (Ill. 2004); People v. Curry, 687 N.E.2d 877 (Ill. 1997); State v. Hager, 630 N.W.2d 828 (Iowa 2001); State v. Sears, 208 W.Va. 700 (W.Va. 2000); State v. Lentowski, 212 Wis. 2d 849 (Ct. App. 1997). None of those cases are persuasive. Notably, none of the procedural rules governing those cases feature the "interests of justice" phrase. Compare R. 3:9-3(e) ("If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement . . . the court may vacate the plea") with Fed. R. Crim. P. 11(c)(3)(A) ("[T]he court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report."). See also Ariz. R. Crim. P. 17.4(d); Cal. Penal Code § 1018; Ill. Sup. Ct. R. 402; Iowa R. Crim. P. 2.8; W. Va. R. Crim. P. 11(e)(4); Wis. Stat. Ann. § 971.08. These cases do not provide meaningful guidance, and we do not rely upon them.
29 A-2078-14T3 [defendant] acted with a requisite state of mind, forming elements
of the offense charged in the indictment." The jury was further
instructed, also appropriately, that if it determined that
defendant's diminished capacity from drug use prevented him from
acting purposely or knowingly, it could go on to consider whether
defendant was guilty of the lesser-included offense of aggravated
manslaughter, the same offense to which defendant had entered the
rejected guilty plea.
The fact that the jury was so instructed reflects that Dr.
Eshkenazi's and defendant's testimony presented at least a
rational basis for the diminished-capacity affirmative defense.
See State v. Daniels, 224 N.J. 168, 181 (2016) (holding that the
trial court should provide an affirmative defense charge requested
by the defense if "there is a rational basis to do so based on the
evidence"). Hence, the trial court erred on remand by holding
there was "no basis in the record" to support an aggravated
manslaughter conviction, particularly because that offense was the
subject of reasonable debate at trial.
Our opinion in Madan advised that in considering whether to
nullify a plea, courts should not favor one version of the facts
"when several versions are likely to be presented to the jury,"
Madan, 366 N.J. Super. at 114, and that the "possibility of . . .
being found guilty of a greater offense," does not provide a valid
30 A-2078-14T3 foundation on which to reject a plea. Id. at 110. This deference
to the factual underpinnings of a guilty plea is consistent with
a long line of precedent. See, e.g., Blackledge v. Allison, 431
U.S. 63, 74 (1977) ("Solemn declarations in open court carry a
strong presumption of verity."); State v. Gregory, 220 N.J. 413,
420 (2015) (At the plea stage, "the trial court is not making
determinations such as the credibility of witnesses . . ."); State
v. Slater, 198 N.J. 145, 156 (2009) ("[A] defendant's
representations and the trial court's findings during a plea
hearing create a 'formidable barrier'. . .") (citations omitted).
See also People v. Montalvo, 173 Cal. Rptr. 51, 54-55 (Ct. App.
1981) ("[A] trial judge, in determining whether to accept
or reject a proposed plea bargain, may hear conflicting versions
of the facts of the case . . . . [The judge's] evaluation of those
facts, in order to determine whether to accept a plea bargain,
does not involve resolution of factual conflict.").
Here, not only was the lesser-included offense of aggravated
manslaughter based on the affirmative defense of diminished
capacity "likely" to be put before the jury, it was actually
presented to the jury at trial, notably without any objection from
the State. The fact that defendant ultimately was convicted of
the greater offense of first-degree murder does not justify
rejecting his prior negotiated plea to the lesser-included offense
31 A-2078-14T3 of aggravated manslaughter, because the aggravated manslaughter
plea was at least rationally supported by the record. See Madan,
366 N.J. Super. at 115 ("An error-free trial following the
erroneous rejection of a plea agreement does not cure the pretrial
error."); Lafler v. Cooper, 566 U.S. 156, 166 ("Even if the trial
itself is free from constitutional flaw, the defendant who goes
to trial instead of taking a more favorable plea may be prejudiced
from either a conviction on more serious counts or the imposition
of a more severe sentence."). Where "debated" facts supported the
plea, the court should not have elevated one set of facts – the
facts supporting knowing and purposeful murder – above the other
– the contrary facts supporting aggravated manslaughter. See
Madan, 366 N.J. Super. at 110, 114.
Regardless of the ultimate merit before the jury of the
affirmative defense of diminished capacity, the negotiated plea
was premised on the pendency of that defense. At trial, both
sides agreed the defense had sufficient evidentiary support to
place the issue before the jury. The trial court's finding that
the defense had "no basis in the record" thus misconstrued the
record and renders the nullification of the plea unsound.
The prosecution faced a significant risk that a jury would
be persuaded by defendant's lay and expert proof of his alleged
diminished capacity. At the outset of the original sentencing
32 A-2078-14T3 proceeding in 2013, the State was prepared to eliminate that risk
and proceed with the plea bargain it had negotiated with defendant.
It was not until the court intervened and raised concerns about
the plea agreement being too lenient that the State
extemporaneously reversed its position. The reversal was not
initiated by the prosecution itself. In fact, the assistant
prosecutor at the 2013 sentencing initially represented to the
court that his office "did everything in [its] power to try to
find a just result[,] balancing the interests most particularly
of the family" and "great thought and care went into" the
negotiated plea. Although prosecutors are certainly free to change
their minds, the distinctive sequence of events bears upon the
issues before us.
For these reasons, we hold that the court erred by finding
that the negotiated plea agreement amending the charge of murder
to aggravated manslaughter did not serve the "interests of justice"
under Rule 3:9-3(e).
The question becomes what remedy at this point is appropriate.
We have considered remanding to have the plea nullification issue
assessed by the trial court a third time. We reject that option.
The protracted chronology of this litigation must come to an end.
In hindsight, we recognize that granting interlocutory review of
defendant's motion for leave to appeal might have obviated some
33 A-2078-14T3 of these consequences. On the other hand, we are also mindful
that this unusual case has presented many novel issues, the
analysis of which benefited from a full record and successive
briefing.
At this point, we elect to exercise our original jurisdiction
pursuant to Rule 2:10-5, and direct that the trial court enter an
order reinstating the original negotiated guilty plea with the
State and proceed to sentencing. In doing so, we fully recognize
the reprehensible nature of defendant's mortal acts. We also are
mindful of the emotional toll imposed on both the members of the
victim's family and defendant and his own relatives in the lengthy
proceedings that have already transpired. We also recognize the
State was satisfied in 2013 to enter into a plea agreement capping
defendant's sentence exposure at twenty-seven years. By no means
do we suggest an appropriate sentence. We simply conclude the
"interests of justice" warrant reinstatement of the original
negotiated agreement.
VI.
Although we need not reach the remaining issues posed on
appeal, we shall note, for sake of completeness, that we have duly
considered all of them. None of the points raised by defendant
and his counsel have sufficient merit to warrant discussion. R.
2:11-3(e)(2). Our only comment is that, although there is
34 A-2078-14T3 reasonable room to debate the issue, we are unpersuaded the trial
judge misapplied his considerable zone of discretion in allowing
Dr. Simring to comment on arguably ultimate issues within his
expert testimony. See N.J.R.E. 704; State v. Prall, 231 N.J. 567
(2018) (recognizing the deference owed to criminal trial judges
on evidentiary issues).
Hence, if, hypothetically, our decision to reinstate the
original plea agreement is overturned, there should be no need for
any further remand to address open issues.
The trial court's May 15, 2017 order nullifying the plea
agreement is therefore vacated. The matter is remanded for
sentencing under the terms of the original plea agreement. We do
not retain jurisdiction.
35 A-2078-14T3