NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4343-13T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN CONTRERAS,
Defendant-Appellant.
____________________________________
Argued October 31, 2016 – Decided August 7, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-11-1628.
Alan D. Bowman argued the cause for appellant.
Jason M. Boudwin, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the brief).
PER CURIAM
Defendant Steven Contreras appeals from an April 3, 2014
judgment of conviction for three counts of aggravated assault,
various conspiratorial offenses, and one count each of riot and hindering prosecution. On appeal, defendant raises the following
arguments:
POINT I
APPELLANT SHOULD HAVE BEEN PERMITTED TO WITHDRAW THE GUILTY PLEA ENTERED HEREIN. (PARTIALLY RAISED BELOW)
POINT II
THE PLEA TO CONSPIRACY TO COMMIT AGGRAVATED ASSAULT CONSTITUTED AN IMPROPER AMENDMENT OF THE INDICTMENT. (NOT RAISED BELOW)
POINT III
THE SENTENCE IMPOSED IS EXCESSIVE AND UNDULY PUNITIVE.
For the reasons that follow, we affirm.
On July 1, 2010, police charged defendant in juvenile
delinquency complaints with offenses that, if committed by an
adult, would constitute murder, aggravated assault, conspiracy,
and criminal mischief. Two months later, the matter was
transferred to the Law Division, Criminal Part.
On November 3, 2010, a Middlesex County Grand Jury charged
defendant and three co-defendants in a multi-count indictment with
second-degree conspiracy to commit aggravated assault, N.J.S.A.
2C:5-2 and N.J.S.A. 2C:12-1(b)(1) (count one); fourth-degree
conspiracy to commit riot, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:33-1
(count two); second-degree aggravated assault, N.J.S.A. 2C:12-
2 A-4343-13T4 1(b)(1) (counts three, six, and seven); third-degree criminal
mischief, N.J.S.A. 2C:17-3(a)(1) (count four); first-degree
murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count five); fourth-degree
riot, N.J.S.A. 2C:33-1(a) (count eight); and third-degree
hindering apprehension or prosecution, N.J.S.A. 2C:29-3(a) (counts
nine and ten). Following the indictment, defendant moved to
suppress his statements to police. The court denied the motion.
The charges against defendant were severed, and he was tried before
a jury in April 2012.
The State presented the following proofs at defendant's
trial. On June 25, 2010, at approximately 11:00 p.m., the victim,
his wife, and their two adolescent children went for a walk around
their neighborhood. Near the end of their walk, they noticed four
teenagers, who appeared to be seventeen or eighteen years old,
following them. The victim told his family to ignore them. One
of the teenagers came very close to the family, tapped the victim
on the shoulder, and said, "hey, man, I want to ask you something."
When the victim turned around, the teenager punched him in the
head, causing him to stagger. The attacker punched the victim in
the head three or four more times, as the other teenagers encircled
the victim's family. The victim's wife watched as one of the
teenagers began to punch her older son in the head. The teenagers
also began striking the victim's younger son. The teenagers then
3 A-4343-13T4 took turns striking the victim's sons as the victim lay on the
grass. One of the teenagers kicked him in the head.
Eventually, the teenagers fled the scene, returned to their
car, and drove away. An anesthesiologist who lived nearby came
to the scene to assist the family. When he arrived, he observed
the victim's body was drooping, his breathing was shallow, and he
spoke in short, incomprehensible slurs. Emergency medical
technicians arrived and transported the victim to the Raritan Bay
Medical Center. Medical personnel diagnosed the victim with a
"hemorrhagic stroke"; his brain was bleeding. The victim was
transferred to the Robert Wood Johnson Trauma Center where he was
pronounced dead three days after the attack. The cause of death
was blunt force trauma to the head.
The victim's older son recognized one of the assailants as
co-defendant Julian C. Daley, a classmate from school. Police
questioned Daley at his residence. He denied any knowledge of the
assault. Daley claimed he was at a fast-food restaurant with his
friends, co-defendant Christopher Conway and "Steve."
Police interviewed co-defendant Conway at his residence.
Conway initially denied any knowledge of the incident, but
eventually admitted there had been a "big fight" that night.
Conway identified "Steve" as defendant, claiming he was present
4 A-4343-13T4 during the attack. Conway denied that either he or defendant took
part in the actual attack.
The police next interviewed defendant.1 According to
defendant, on the evening of the incident, he and the co-defendants
were drinking malt liquor. After stopping at a fast-food
restaurant at approximately 11:00 p.m., defendant drove his
friends around for some time. While doing so, another car cut
them off. A road-rage incident ensued. During the incident,
defendant pursued the other car; the occupants of the vehicles
stopped, exited, and engaged in a heated exchange; defendant
pursued the other car a second time; a co-defendant threw something
at the other car, shattering the hood; and defendant pursued the
car again, but it got away.
Following the road-rage incident, the co-defendants were
"heated up," and co-defendant Daley suggested they "go find some
kids and fuck them up." Defendant drove everyone into the
neighborhood where the victim and his family were taking a walk.
When the assailants saw the victim's family, they decided to fight
them. Defendant remained in his car with the lights off while the
co-defendants attacked the victim and his family. The co-
1 Audio recordings of defendant's interviews with law enforcement were played during the trial.
5 A-4343-13T4 defendants returned to the car and defendant drove off. Everyone
agreed not to speak about the incident.
In the days following the incident, defendants tried to
coordinate their version of the incident in the event police tried
to speak with them. Further investigation revealed that defendant
and some of the co-defendants had selectively deleted cellular
text messages and call logs to each other around the date of the
incident. Defendant also admitted that co-defendant Daley
instructed him to delete their text message conversations.
At the trial's conclusion, the jury found defendant guilty
of the lesser-included offense of third-degree conspiracy to
commit aggravated assault (count one); fourth-degree conspiracy
to commit riot (count two); three counts of the lesser-included
offenses of third-degree aggravated assault (counts three, six,
and seven); fourth-degree riot (count eight); and hindering
apprehension (count nine). The jury found defendant not guilty
of the remaining offenses, including murder and the lesser-
included offense of aggravated manslaughter, but was unable to
reach a verdict on the lesser-included offense of reckless
manslaughter (count five). The matter was returned to the trial
calendar for retrial on the latter charge.
At a status conference held on June 20, 2012, defendant
rejected the State's plea offer of a four-year prison term subject
6 A-4343-13T4 to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), in exchange
for his guilty plea to reckless manslaughter. At that time, the
court had the following exchange with defendant:
The court: Mr. Contreras, I want you to sit. I want you to pay really, really close attention. What you do is entirely up to you. Do you understand that, young man?
Defendant: Yes.
. . . .
The court: You sat through a trial and you knew pretty much what the evidence is going to be. You never know what a jury is going to do. You sat through the trial. You probably still have a copy of the model jury charge.
The court: And if you recall that charge simply says conspiracy agreement, reckless act cause of death. Think long and hard what a jury is going to do if that's the only charge in front of them, okay? Because if they come back and they convict you it's 85% [sic] offense and I can tell you that there’s a presumption of incarceration and you will be going to State Prison absent some highly unusual circumstances. I don't see any in this case. Do you understand that?
Defendant: Yes, sir.
The court: I am not telling you to take [the] State's plea offer. I’m not. But the plea offer the State is offering you is no more than four . . . . Is it a flat four?
The State: [NERA] would still apply but it would be the third degree range.
7 A-4343-13T4 The court: Now, a four, three and a half years, it's not close to 15 or 20. Do you understand that?
The court: And what you do is your life. Certainly you should talk to your family. Make sure the decision you make you think is best for you. You have every right to get in front of a jury again, okay?
The court: But I don’t want to hear any complaint if a jury comes back other than some manner you would like. You have pretty clear testimony that you drove, dropped them off, drove them away, and that the kids were looking for a brawl, beat somebody up . . . [a]nd somebody was hit. Somebody died. Now, again, I can't tell you what a jury is going to do. It sounds kind of reckless to me at a minimum and that’s all that’s necessary for guilt. You decide, young man, what you want to do. All I'm advising you, I want to make sure you understand it, it would not shock me if they came back differently than they came back the last time. Again, don't rely on what I’m saying. You sat through the trial. Talk to your lawyer. Make an intelligent informed decision. Whatever that is I'll accept it. Do you understand me?
The matter was then re-listed for trial, but it was not re-
tried. On November 27, 2012, defendant pleaded guilty to an
amended charge of conspiracy to commit aggravated assault and
agreed to testify truthfully at the co-defendants' trial. In
8 A-4343-13T4 exchange, the State agreed to recommend a four-year prison term
subject to NERA to run concurrent to any sentence imposed on the
offenses the jury convicted him of committing. The State also
agreed to consider lowering its recommended four-year prison term
to a three-year sentence subject to NERA and to dismiss an
outstanding juvenile complaint. Finally, the State agreed to
recommend treating defendant as a youthful offender, allowing him
to go to a juvenile facility rather than state prison. If
defendant failed to cooperate in accordance with the plea
agreement, the State would be relieved of making its sentencing
recommendations, in which case defendant would face the
possibility of a maximum sentence.
At the November 27 plea hearing, defense counsel advised
defendant that by pleading guilty to a second-degree crime, he
could face either a ten-year prison sentence with five years of
parole ineligibility, a seven-year sentence with three and a half
years of parole ineligibility, or face a term set by the court
where he must serve eight-five percent of the sentence before
becoming eligible for parole. Defense counsel further advised
defendant his guilty plea would not require imposition of a
mandatory sentence, but the sentence would be subject to NERA.
Defendant acknowledged that his attorney explained the
consequences of NERA. Further, defendant acknowledge the State's
9 A-4343-13T4 agreement and that his failure to cooperate under the plea
agreement could subject him to the maximum custodial sentence.
Defendant said he understood the difficulty of withdrawing from
his guilty plea once the court accepted it, and he admitted several
times that his plea was not the product of any threats, promises,
or coercion.
Trial of co-defendants Christian M. Tinli and Cash Q. Johnson
commenced on August 6, 2013.2 Defendant reneged on his plea
agreement. Defendant testified he never conspired with co-
defendants Tinli and Johnson. Defendant also testified Tinli and
Johnson conspired with no one on the date of the incident. Co-
defendants Tinli and Johnson were convicted of one count of simple
assault and acquitted of all other charges.
Following the jury verdict, the State moved for specific
performance of the plea agreement, seeking to be relieved of its
sentencing recommendation on the basis that defendant did not
testify truthfully. Defendant opposed the motion and moved to
withdraw from the plea agreement. In support of his motion,
defendant argued the court "bullied him into pleading guilty" at
the June 2012 status conference, claimed he was never made aware
2 Co-defendants Daley and Christopher Conway pleaded guilty to second-degree conspiracy to commit aggravated assault and first- degree manslaughter.
10 A-4343-13T4 of his maximum custodial sentence, and contended his guilty plea
violated his protection against double jeopardy.
The court granted the State's motion for specific
performance, finding defendant had breached the plea agreement by
failing to testify truthfully at his co-defendants' trial. The
court determined defendant's testimony at trial was inconsistent
with the statements he previously made to law enforcement. Such
conduct left the court "overwhelmingly convinced" that defendant
acted deliberately to help the co-defendants so as to lessen their
involvement in the conspiracy.
The court denied defendant's motion to vacate or withdraw his
guilty plea, ruling that his plea contained a sufficient factual
basis and that defendant waived his double jeopardy defense.
Additionally, the court found unpersuasive defendant's argument
that he did not understand his potential maximum sentence and that
the court had coerced him into pleading guilty at the June 2012
status conference. The court also concluded defendant had not
satisfied the factors for plea withdrawal as set forth in State
v. Slater, 198 N.J. 145 (2009).
Following the denial of defendant's motion, the court
sentenced defendant to the following custodial terms. On count
five, conspiracy to commit second-degree aggravated assault, the
court sentenced defendant to an eight-year custodial term subject
11 A-4343-13T4 to NERA, the sentence to run consecutive to a three-year sentence
imposed on count three, the lesser-included offense of third-
degree aggravated assault. On counts six and seven, the lesser-
included offenses of third-degree aggravated assault, the court
imposed three-year custodial terms to run concurrently with each
other but consecutive to count three. On count eight, riot, the
court imposed a one-year custodial term concurrent to all other
counts. Finally, the court imposed an eighteen-month custodial
term on count nine, hindering prosecution, to run consecutive to
counts three, six, and seven, but concurrent with count eight.
The court found aggravating factor one, N.J.S.A. 2C:44-
1(a)(1), "the nature and circumstances of the offense, and the
role of the actor therein, including whether or not it was
committed in an especially heinous, cruel, or depraved manner."
The court next found aggravating factor two, N.J.S.A. 2C:44-
1(a)(2), "the gravity and seriousness of the harm inflicted on the
victim, including whether or not the defendant knew or reasonably
should have known that the victim of the offense was particularly
vulnerable or incapable of resistance . . . ." The judge found
this factor because of the "particularly heinous" nature of the
harm inflicted on the victim which resulted in death. The court
also found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the
need for deterring defendant and others from violating the law,
12 A-4343-13T4 because of the intolerable nature of the offense. Additionally,
the court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3),
the risk that defendant will commit another offense, because of
defendant's lack of candor while testifying at his co-defendants'
trial. The court did not give this factor significant weight.
Lastly, the court found aggravating factor eight, N.J.S.A. 2C:44-
1(a)(8), which states, in part, that defendant committed an offense
against a law enforcement officer in the performance of his duties.
The court gave this factor some weight as a result of defendant's
conviction for hindering apprehension or prosecution.
The court found only mitigating factor seven, N.J.S.A. 2C:44-
1(b)(7), defendant's lack of criminal record, because he had no
prior history of criminal activity.
On appeal, defendant first argues he "should have been
permitted to withdraw the guilty plea entered herein." He claims
the statements the trial court made at a status conference
misstated the law concerning reckless manslaughter. Specifically,
he asserts "the court misstated . . . that a retrial would involve
presentation to the jury of a charge that 'simply says conspiracy
agreement, reckless act causing death.'" Emphasizing this point,
as well as the court's statement to defendant to "think long and
hard what a jury is going to do if that's the only charge in front
of them," defendant insists his plea was coerced. In addition,
13 A-4343-13T4 for the first time on appeal, defendant raises an argument that
the trial court's acceptance of the jury's partial verdict and
intent to retry defendant on reckless manslaughter violated the
constitutional protection against double jeopardy.
Defendant's arguments are without sufficient merit to warrant
discussion. R. 2:11-3(e)(2). We add these comments only.
Defendant's contention he was misled by comments the trial court
made during a status conference is premised on a partial statement
the court made, which defendant takes entirely out of context.
Defendant overlooks the court's reference to defendant having sat
through trial, having a copy of the model jury charges, and
therefore knowing the content of the charge on reckless
manslaughter. Considered in context, the court was doing nothing
more than pointing out a possibility defendant could be convicted
even if he did not participate in the actual beating of the victim.
In addition, the court repeatedly told defendant it was his
decision to accept or reject the plea offer. Defendant heeded the
advice and rejected the offer. Five months later, when jury
selection for the retrial was scheduled to begin, the parties
negotiated a new plea agreement that was more favorable to
defendant. The plea colloquy leaves no doubt defendant was fully
informed of every material aspect of the new plea agreement and
voluntarily entered his plea.
14 A-4343-13T4 Defendant's double jeopardy argument is also devoid of merit.
Generally, "'double jeopardy . . . do[es] not prohibit retrial of
a defendant when a prior prosecution for the same offense has
ended in mistrial attributable to the inability of the jury to
agree on a verdict,' because 'the jeopardy to which the defendant
is exposed is considered a continuation of original jeopardy,
which was not terminated by the mistrial.'" State v. Johnson, 436
N.J. Super. 406, 421 (App. Div. 2014) (alterations in original)
(quoting State v. Abbati, 99 N.J. 418, 425-26 (1985)). Defendant
has pointed to nothing in the record to suggest either that the
mistrial in his case was granted for any reason other than the
jury's inability to reach a verdict, or that the trial court's
decision to declare a mistrial was inappropriate.
Having considered defendant's remaining arguments in view of
the record and applicable legal principles, we find no basis for
concluding the trial court abused its discretion when it denied
defendant's application to withdraw his guilty plea. State v.
Munroe, 210 N.J. 429, 442 (2012) (citing Slater, supra, 198 N.J.
at 145).
In his second point, defendant argues for the first time on
appeal his plea to conspiracy to commit aggravated assault, as
amended from reckless manslaughter, must be vacated because the
amended charge was not a lesser-included offense. The trial court
15 A-4343-13T4 amended the charge to facilitate the parties' plea agreement. We
find no plain error in the court doing so. R. 2:10-2.
Generally, "[i]n the absence of a valid waiver, the
submission to the jury of an offense which is not a lesser
included offense violates a defendant's state constitutional right
not to be tried except upon the presentment or indictment of a
grand jury." State v. Battle, 256 N.J. Super. 268, 281 (App.
Div.) (citations omitted), certif. denied, 130 N.J. 393 (1992).
Although a defendant generally must waive the right to an
indictment in writing, State v. Ciuffreda, 127 N.J. 73, 79 (1992),
there are circumstances in which oral consent will suffice. See
id. at 82. We deem this to be such a circumstance.
Here, defendant explicitly agreed to plead to a lesser
offense, and thus to an amended charge. By doing so, he reduced
his potential prison sentence to four years subject to NERA. In
addition, defendant pleaded guilty to the conspiratorial offense
because he believed such a conviction would be easier to expunge.
Under those circumstances, defendant's guilty plea to conspiracy
to commit aggravated assault — an offense for which he had not
been indicted — was not clearly capable of producing an unjust
result.
Defendant argues in his final point that his sentence is
excessive and unduly punitive. Our review of the record reveals
16 A-4343-13T4 both that the court's findings of aggravating and mitigating
factors are supported by the record and that the court followed
the sentencing guidelines in New Jersey's Code of Criminal Justice.
The sentence does not "shock the judicial conscience" in light of
the facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).
Accordingly, we find no basis for reversing the trial court's
sentencing discretion.
Affirmed.
17 A-4343-13T4