NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1438-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THERESA WILLIAMS, a/k/a THERESA MARTIN and BIBI KHAN,
Defendant-Appellant. __________________________________
Argued October 2, 2017 – Decided July 12, 2018
Before Judges Ostrer and Rose.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-02-0231.
Eric V. Kleiner argued the cause for appellant.
Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Bergen County Prosecutor, attorney; Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Theresa Williams appeals from the trial court's
order denying her motion to withdraw her plea. This is our third
occasion to review defendant's case. Defendant entered a guilty
plea on April 4, 2011 to second-degree attempted extortion; and
on June 3, 2011, was sentenced in accordance with the plea
agreement to a downgraded sentence of three years. The court
denied her motion to withdraw her plea on October 22, 2015. We
affirm.
I.
In her direct appeal, we rejected defendant's sole point that
her attorney provided ineffective assistance of counsel; we
concluded defendant should have first raised the claim in a
petition for post-conviction relief in the trial court. State v.
Williams, No. A-5505-10 (App. Div. June 20, 2013) (slip op. at 5)
(Williams I). However, we sua sponte remanded for reconsideration
of the sentence, because the trial court failed to justify the
downgraded sentence in compliance with N.J.S.A. 2C:44-1(f)(2) and
State v. Moore, 377 N.J. Super. 445, 450 (App Div. 2005). Williams
I, slip op. at 6-7.
After our initial remand, the court adhered to its sentence.
We thereafter affirmed the sentence, concluding the court made
appropriate findings essential to justify the downgrade in
accordance with N.J.S.A. 2C:44-1(f)(2). State v. Williams, No.
2 A-1438-15T2 A-0834-13 (App. Div. Dec. 5, 2014) (slip op. at 11-12) (Williams
II). But, we remanded for the court to consider defendant's motion
to withdraw her guilty plea, which she filed on August 1, 2013,
the day of the court's sentencing hearing on remand. Id. at 12.
Although the trial court appropriately declined to hear the
withdrawal motion on that day, we held the court should have
considered it at a later time, after giving the State an
appropriate opportunity to respond. Id. at 12-13. The subsequent
proceedings in the trial court pertained to defendant's motion to
withdraw.
In her plea allocution in 2011, defendant admitted that in
December 2010, she attempted to extort "money or property" from
an elderly widow by threatening to disclose a tape recording
depicting the widow's late husband engaged in sexual relations
with defendant. She testified she participated in the extortion
scheme with a codefendant, Ryan Persaud. She agreed she
participated in telephone and in-person contacts with the victim.
In addition to her signed plea forms, defendant signed a guilty
plea stipulation, stating that she attempted to obtain money from
the widow by threatening to disclose an embarrassing recording.
She did not deny her participation in the crime in her
presentence interview. Rather, the presentence report states,
"When asked if there were any factors contributing to the
3 A-1438-15T2 commission of the instant offense[,] the defendant stated that
while he was still alive, [the husband] told her to do it and made
a voice recording of himself saying he wanted her to have the
money."
At her sentencing hearing, she expressed remorse, both in a
handwritten letter to the court, and orally, specifically
admitting that she made the explicit tape recording. Defendant,
an undocumented immigrant from Guyana, maintained to the court
before that initial sentencing, that she was employed for many
years by the widow and her late husband as a household worker, and
that the husband sexually abused and exploited her as a teenager.
She asserted that the man ultimately regretted his years of abuse.
While suffering from a terminal illness, he suggested that she
seek the payment from his widow.
After our first remand, the trial court credited defendant's
claim that she had been promised the money. The trial court noted
that the "interest of justice" prong of N.J.S.A. 2C:44-1(f)(2) was
met, in view of defendant's contention that the widow's late
husband had suggested that she seek money from his widow. The
court concluded that defendant may have had a sense, albeit
misdirected, that she was entitled to the funds.
According to the State's version of the crime, Persaud
initially approached the widow at her home in Bergen County,
4 A-1438-15T2 accompanied by a woman other than defendant. The victim notified
the police. With her consent, police recorded subsequent telephone
conversations in which Persaud threatened the widow that he would
disclose an embarrassing tape if she did not pay $500,000. She
offered to make an initial payment of $75,000 at a meeting at her
home.
Police surveilled the area the day of the meeting. They
observed defendant in the vehicle with Persaud and a driver.
However, Persaud aborted the meeting after the victim refused to
meet him outside her house, insisting instead that he come inside
(where she was accompanied by police). Meanwhile, defendant left
the vehicle and headed on foot to a bus stop. Persaud attempted
to drive away. Police arrested all three. Persaud gave a
statement admitting to the scheme, stating that defendant provided
him with the sexually explicit videotapes; identified the widow
to him; and provided him with her telephone number and address.
Six months after her sentencing, defendant executed an
affidavit professing her innocence, which was prepared in support
of her ineffective assistance of counsel claim raised on direct
appeal. The affidavit was then submitted to the court in support
of the motion to withdraw her guilty plea ultimately heard in
2015.
5 A-1438-15T2 Defendant claimed that her own abusive father sent her to the
United States in 1995, when she was about thirteen years old, to
work as a housecleaner under the supervision of her aunt. She
began working for the Bergen County couple shortly thereafter.
Sexually victimized by her aunt's husband, she left her aunt and
lived with a family friend, while continuing to work for the Bergen
County couple, whom she considered something of surrogate parents.
However, the husband began to engage in sexual relations with her,
which she did not feel empowered to refuse or report. She claimed
that he also videotaped the encounters, starting when she was
fifteen years old. Her employment, and the encounters, continued
until 2004, but for one last sexual encounter with the husband in
2007, more than ten years after the first. She claimed the
encounter was taped.
Then, after another period of sparse contact, the man met her
for the last time in 2010 to tell her that he was terminally ill.
He apologized for the pain he had caused her. He gave her "two
cds, two audio recorders, and a small digital camera." She claimed
that in one recording the man expressed his wish that she receive
$500,000 from his wife after his death. A second recording advised
defendant that she was to request the money from his wife. The
man allegedly instructed defendant to give the cds to his neighbors
if his wife refused. Defendant said the recordings included
6 A-1438-15T2 instances of abuse when she was fifteen, and three later incidents,
including the last one in 2007.
Defendant claimed she gave the recordings to Persaud only for
safe-keeping, because she was afraid her then-fiancé would
discover them, and she had not decided what to do with the
recordings. After the elderly man died, defendant claimed Persaud
told her that he had viewed the tapes, and urged her to let the
widow know about them. Defendant said she refused, and claimed
she did not speak to Persaud again about the videos.
Defendant provided an alternative explanation for Persaud's
two visits to the widow's home. In the first, she claimed that
she only intended to introduce Persaud to the widow to ask her for
work for Persaud and his woman companion. (The husband had owned
a real estate company.) However, defendant asked to be dropped
off at a nearby park, rather than face the widow, because the
thought of seeing her, or returning to the home, sickened
defendant. She claimed she was unaware that Persaud attempted to
extort money from the widow.
The day of the arrests, defendant claimed she accompanied
Persaud to the couple's Bergen County town to scout out locations
for a store Persaud hoped to open. Defendant eventually realized
that Persaud was heading toward the couple's home. She asked
Persaud to explain what he was doing. He said that he had been
7 A-1438-15T2 speaking with the widow and she was ready to give him the money
that her husband had promised defendant. He claimed to have all
the tapes, to exchange for the money. Defendant claimed she
grabbed the recorders and cds, left the car and walked to a bus
stop, intending to return to Queens, where she lived. A few
minutes later, she refused Persaud's offer for a ride back to New
York. She was arrested soon thereafter. She claimed she had the
recorders and cds in her possession, although the police later
reported they seized them from Persaud.
Defendant blamed her attorney for her decision to plead
guilty, rather than go to trial. In her December 2011 affidavit,
she said her attorney disbelieved her; he told her the tapes did
not substantiate her claims; and he misinformed her about the
immigration consequences of her plea. He told her she would serve
less than a year on a three year sentence. Defendant claimed,
"Not knowing any better and fearful of remaining in prison for ten
years, I agreed to follow my lawyer's advice." She added that she
was "distraught, scared and lost" while she awaited sentencing.
She later discovered, in immigration proceedings, that her
conviction would likely lead to her removal.
In an additional certification, executed in August 2015,
defendant described the contents of the two recorders, two cds,
and camera. She maintained that in one recording, the widow's
8 A-1438-15T2 husband expressed his desire that she receive $500,000 after his
death, and apologized for what he and his wife had done to her.
Neither the recordings, nor transcripts of their contents, are
before us. Instead, defendant has provided photographic images
of the devices and a disc, with the notation that it is blank.
II.
The court found that defendant had knowingly, voluntarily and
intelligently entered her guilty plea, as required by Rule 3:9-2.
In assessing defendant's motion to withdraw her plea, the trial
court applied the four factors prescribed in State v. Slater, 198
N.J. 145 (2009):
(1) whether the defendant has asserted a colorable claim of innocence;
(2) the nature and strength of 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 157-58.]
With respect to the first factor, the court held that
defendant failed to present specific, credible facts proving her
innocence. The court noted that defendant was Persaud's undisputed
source for the recordings, and the victim's name, address and
telephone number. "The defendant's claim that she was attempting
9 A-1438-15T2 to make introductions for job opportunities, or scout out store
locations, simply does not ring true, especially in light of the
extortion attempt and the defendant's view that she was promised
and owed money from [the husband]." The court also found
incredible defendant's claim she gave the recordings to Persaud
because he was a "trusted friend." The court noted that
defendant's admissions in her plea stipulation, sentencing letter
of apology, and plea form directly contradicted her claim of
innocence.
The court also rejected defendant's claimed reasons for
withdrawing her guilty plea. Defendant had submitted mental health
reports from when she was incarcerated, noting that she was
depressed and had difficulty coping with imprisonment; and an
evaluation prepared in 2012, concluding she suffered from post-
traumatic stress disorder. The court rejected the argument that
mental health conditions prompted her to plead guilty despite her
innocence. The court noted that defendant denied suffering from
any mental health disorder in her presentence interview, and she
affirmed during her plea colloquy that nothing impaired her ability
to enter her guilty plea. The court recognized "the seriousness
and profound impact of sexual abuse," but noted that defendant
never formally complained to authorities about the alleged abuse.
The court observed that defendant had raised her claim when she
10 A-1438-15T2 faced deportation and sought a money judgment against the husband's
estate.
The court recognized that defendant entered into a plea
bargain. Citing State v. Munroe, 210 N.J. 429, 443 (2012), the
court acknowledged that the factor is given the least weight, but
should not be discounted entirely.
Lastly, the court found that the State would suffer prejudice
if forced to try the case so many years later. The court noted
that the widow had been diagnosed with Alzheimer's disease. During
oral argument, the prosecutor asserted that fact, and invited the
court to review transcripts of the victim's most recent deposition
taken in the civil action defendant apparently filed against the
husband's estate. The court concluded that defendant failed to
demonstrate that allowing her to withdraw her plea would serve the
interest of justice, or was necessary to correct a manifest
injustice.
On appeal, defendant presents one point for our
consideration:
POINT ONE [DEFENDANT]'S GUILTY PLEA IS REQUIRED UNDER THE LAW TO BE WITHDRAWN AND THE CONVICTION VACATED.
11 A-1438-15T2 III.
A.
We will disturb a trial court's decision on a motion to
withdraw a guilty plea when it is "clearly erroneous," State v.
Simon, 161 N.J. 416, 444 (1999), or the trial court exercised a
"clear error of judgment," Munroe, 210 N.J. at 448 (quoting State
v. Koedatich, 112 N.J. 225, 313 (1988)). "A denial of a motion
to vacate a plea is 'clearly erroneous' if the evidence presented
on the motion, considered in light of the controlling legal
standards, warrants a grant of that relief." State v. Mustaro,
411 N.J. Super. 91, 99 (App. Div. 2009); see also State v.
O'Donnell, 435 N.J. Super. 351, 372 (App Div. 2014). The defendant
bears the burden of establishing a basis for relief. Slater, 198
N.J. at 156 (noting that a defendant's representations in entering
a guilty plea "create a 'formidable barrier' the defendant must
overcome") (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).
The four Slater factors apply, whether a defendant seeks to
withdraw a plea before or after sentencing. Id. at 158. But,
"[t]iming matters." Id. at 160. After sentencing, a court may
permit a defendant to withdraw a plea only "to correct a manifest
injustice." R. 3:21-1. The motion "must be substantiated by
strong, compelling reasons." Slater, 198 N.J. at 160.
12 A-1438-15T2 That heavier "burden[] of proof" requires a different
"weighing and balancing process . . . ." Id. at 158. Post-
sentencing, "'the court weighs more heavily the State's interest
in finality and applies a more stringent standard' than that which
is applied to a withdrawal application made before sentencing has
occurred." State v. Johnson, 182 N.J. 232, 237 (2005) (quoting
State v. McQuaid, 147 N.J. 464, 487 (1997)); see also Munroe, 210
N.J. at 441 (stating "the interest in finality is greater after
sentence and entry of a judgment of conviction, and thus the
standard for withdrawing a guilty plea is more onerous"). "[T]he
longer a defendant delays in seeking to withdraw a plea, the
greater burden he or she will bear in establishing 'manifest
injustice,' because the prejudice to the State under [factor] four
will generally increase. Moreover, a defendant's reasons for
delay may also weigh against relief under factor two." O'Donnell,
435 N.J. Super. at 370; see Slater, 198 N.J. at 160 (stating that
"[i]n general, the longer the delay in raising a reason for
withdrawal, or asserting one's innocence, the greater the level
of scrutiny needed to evaluate the claim").
B.
Defendant's challenge to the court's application of the
"colorable claim of innocence" factor warrants our most in-depth
discussion. We begin with a review of the governing principles.
13 A-1438-15T2 "A core concern underlying motions to withdraw guilty pleas is to
correct the injustice of depriving innocent people of their
liberty." Id. at 158. "A bare assertion of innocence is
insufficient to justify withdrawal of a plea. Defendants must
present specific, credible facts and, where possible, point to
facts in the record that buttress their claim." Ibid.
"[T]he evidence presented in support of the claim of innocence
must be specific and raise a legitimate dispute for the jury, but
need not clearly exonerate the defendant." State v. Lipa, 219
N.J. 323, 334 (2014). Put another way: "A colorable claim of
innocence is one that rests on 'particular, plausible facts' that,
if proven in court, would lead a reasonable factfinder to determine
the claim is meritorious." Munroe, 210 N.J. at 442 (quoting
Slater, 198 N.J. at 158-59).
In considering the "colorable claim of innocence" factor, the
trial court must not usurp the function of a jury. "[T]he motion
judge need not be convinced that [a defendant's innocence claim]
is a winning argument because, in the end, legitimate factual
disputes must be resolved by the jury." Munroe, 210 N.J. at 442;
see also Lipa, 219 N.J. at 333-34. However, the trial judge must
still distinguish between "a colorable claim of innocence" and a
"bald assertion." Id. at 334. Doing so requires a judge to engage
14 A-1438-15T2 in some weighing of evidence to determine whether facts are
"credible" or "plausible." Id. at 333-34.
"[C]ourts may look to 'evidence that was available to the
prosecutor and to the defendant through our discovery practices
at the time the defendant entered the plea of guilt.'" Slater,
198 N.J. at 158-59 (quoting State v. Smullen, 118 N.J. 408, 418
(1990)). "Although the State is not obligated to offer any
evidence at a motion to withdraw," it may do so to "undermine the
colorable nature" of a defendant's claim of innocence. Id. at
163. On the other hand, a court may consider the State's failure
to offer evidence that belies a defendant's claim. Ibid. (noting
the State's failure to offer evidence to contradict the defendant's
claim that he did not rent a motel room where drugs were found);
Munroe, 210 N.J. at 445 (considering the State's failure to offer
witness statements contradicting the defendant's claim he could
not retreat from a knife-wielding victim).
In Slater, Munroe, and Lipa, the defendants sought to withdraw
their guilty pleas before sentencing. In each case, the Court
found that the trial court erred in denying the motion. In Slater,
the defendant pleaded guilty to possession with the intent to
distribute cocaine after police discovered the drugs and a scale
in a motel room he occupied. 198 N.J. at 151. Slater admitted
in his plea colloquy that he was "going to sell or share some" of
15 A-1438-15T2 the drugs. Id. at 152. Less than two weeks later, before
sentencing, Slater sought to withdraw his plea, contending that
he had not rented the motel room; he was just visiting; he was
unaware the drugs were in the room; and the drugs did not belong
to him. Id. at 152-53. Slater's story was supported by the record
evidence that the police approached the motel room in search of
two white men who allegedly possessed cocaine; but, Slater was
African-American. Id. at 151-52, 163. Also, the State failed to
disprove Slater's claim that he did not rent the room and was only
visiting. Id. at 163.
Applying Slater, the Court in Munroe held that the defendant,
who pleaded guilty to aggravated manslaughter, presented a
colorable claim of innocence in his presentence motion to withdraw
his plea. 210 N.J. at 446-47. The defendant supported a self-
defense claim with evidence that the victim threatened him with a
knife, and a parked car blocked the defendant's retreat. Id. at
445. A police report confirmed the deceased victim was found with
a box cutter in his hand. Id. at 447. The State presented no
witness statements contradicting Munroe's claim he had no room to
retreat. Id. at 445-46. Munroe's admission in his initial plea
colloquy that he shot the victim at close range was not
inconsistent with his later claim of self-defense. Id. at 445.
"[N]ot a word that defendant uttered in court during his plea
16 A-1438-15T2 colloquy was inconsistent with either the account he gave to the
probation officer who prepared his presentence report or his sworn
testimony when he moved to withdraw his guilty plea." Ibid.1
In Lipa, the defendant raised a colorable claim of innocence
when he denied he sexually assaulted a victim three times. 219
N.J. at 326-28. He presented photographic evidence of a knee
injury that, he claimed, made it impossible for him to climb into
the victim's second-floor bedroom window, as she alleged. Id. at
333. The Court noted that the victim's assertion that Lipa was
inebriated when he committed the offenses tended to undermine the
claim that he had the physical capacity to commit the offense as
described. Ibid. Lipa also presented evidence that the victim
made allegedly false sexual assault claims against others in the
past. Ibid. Unlike Munroe, however, Lipa's claim of innocence
was factually inconsistent with his admissions during the plea
colloquy, but the Court noted they were presented in answer to
leading questions. Id. at 327.
1 Although the Court likened Munroe to Slater, Munroe's claim of innocence appears stronger. Munroe did not address his state of mind in his allocution, and his admission that he pulled the trigger that killed the victim was entirely consistent with his self-defense claim. On the other hand, Slater's claim of innocence was inconsistent with his admission that he possessed the cocaine with the intent to sell or share it.
17 A-1438-15T2 We draw from these cases the principle that a defendant may
present a plausible claim of innocence, even if inconsistent with
his or her prior admission of guilt. But, a claim of innocence
is more likely to be deemed "colorable" if it does not directly,
or completely contradict the factual admissions in the initial
allocution of guilt. Evidence corroborating a defendant's claim
of innocence supports the claim's plausibility, as does the State's
failure to present evidence on easily verifiable facts that would
undermine the defendant's claims.
Turning to defendant's claim of innocence, she contends that
the crime of attempt was never consummated because Persaud left
the scene before transferring the tapes for the money, and
defendant abandoned the vehicle and headed to a bus stop, allegedly
with the recordings. Alternatively, she contends her actions
constituted renunciation. She does not highlight her claim that
she was unaware of Persaud's extortion scheme, or her explanation
as to why she twice accompanied him to the town where the victim
lived.
We note at the outset that defendant does not expressly
contend she failed to present an adequate factual basis under Rule
3:9-2. Rather, she seems to argue that the record evidence did
not support her admission of guilt.
18 A-1438-15T2 We acknowledge that an adequate factual basis is a threshold
determination, which precedes analysis of the Slater four-factor
test for withdrawing a plea. See State v. Tate, 220 N.J. 393,
404-05 (2015). Defendant admitted that she and Persaud contacted
the victim, by telephone and in person, seeking money from the
victim in return for not disclosing a sexually explicit videotape
that would cause the victim embarrassment. We are satisfied that
defendant's allocution sufficiently established the elements of
the offense of attempt to commit extortion. See N.J.S.A. 2C:20-
5(c) (stating a person commits theft by extortion if the person
"purposefully and unlawfully obtains property of another by . . .
purposely threaten[ing] to . . . [e]xpose or publicize any secret
or any asserted fact, whether true or false, tending to subject
any person to hatred, contempt or ridicule . . . .);2 N.J.S.A.
2C:5-1(a)(3) (stating a person is guilty of attempt if, acting
with the required culpability, "does . . . anything which, under
the circumstances as a reasonable person would believe them to be,
2 Notably, defendant does not raise the affirmative defense "that the property obtained was honestly claimed as restitution or indemnification for harm done in the circumstances or as lawful compensation for property or services." N.J.S.A. 2C:20-5. Despite her claim that the husband told her to release the tapes if his wife did not pay her, defendant contends she never followed through.
19 A-1438-15T2 is an act . . . constituting a substantial step in the course of
conduct planned to culminate in [her] commission of the crime").3
We are unpersuaded by defendant's argument that the record
demonstrates there was, in fact, no attempt. It is of no moment
that money did not pass hands on the aborted second trip to the
victim's home. Persaud's recorded conversations disclose an
undeniable effort to extract $500,000 from the victim, by
threatening to disclose embarrassing materials. Even if defendant
did not appear with Persaud in his visit to the victim's home, or
participate in the phone calls to the victim, she took substantial
steps, by providing Persaud with the tapes and the victim's
information, in the course of conduct designed to culminate in the
extortion of $500,000 from the victim.
We also reject defendant's claim that she presented a
colorable claim of innocence by renouncing the scheme. She could
renounce only if she had the requisite culpability in the first
place. Renunciation applies only "[w]hen the actor's conduct
would otherwise constitute an attempt under [N.J.S.A. 2C:5-1(a)(2)
or (3)] . . . ." See N.J.S.A. 2C:5-1(d). To establish the
affirmative defense, a defendant "must prove by a preponderance
of the evidence that he [or she] abandoned his [or her] effort to
3 The indictment did not specify the relevant subsection of the attempt statute. But, subsection (a)(3) appears to apply.
20 A-1438-15T2 commit the crime or otherwise prevented its commission, under
circumstances manifesting a complete and voluntary renunciation
of his [or her] criminal purpose." Ibid. Defendant contends in
her December 2011 affidavit that she never intended to commit
extortion.
To establish a colorable claim of innocence after a plea of
guilty, a defendant should surely present only one version of the
facts. "Although a party may argue inconsistent principles of
law, he [or she] cannot be heard . . . to contend for two
diametrically opposed sets of facts." In re Estate of Perrone, 5
N.J. 514, 527 (1950).
Even if we presume defendant only meant to argue that her
actions foiled Persaud's plan of which she was previously unaware,
she failed to establish a colorable claim of innocence. The facts
essential to her claim of innocence are neither "credible" nor
"plausible." The trial court fairly concluded that defendant's
version of events simply did not ring true. Notably, defendant
did not present the trial court with any competent evidence of the
recordings' contents to verify her allegations. In any event,
evidence that she was a victim of the husband's assaults – as
reprehensible as that would be – does not prove her ignorance of
Persaud's scheme. Moreover, there is no evidence – except her own
21 A-1438-15T2 say so – that she took the embarrassing materials when she left
the car, in order to foil Persaud's plan.
Defendant's contradictory assertions differ greatly from the
claims the Court has deemed "colorable." The defendant in Munroe
presented facts that supplemented the allocution of guilt, and
constituted a defense. 210 N.J. at 445. By contrast, defendant
has presented facts in her December 2011 affidavit that directly
contradict the facts presented in her allocution, and
presentencing statements. Lipa presented evidence that supported
his claim of innocence – including photographs of his knee injury.
219 N.J. at 333. Defendant presents no comparable evidence to
corroborate her claimed innocence. Rather, her admission of guilt
is supported by the undisputed facts that she provided the tapes
to Persaud and accompanied him on two trips to the victim's town.
Significantly, defendant filed her motion after sentencing, when
the burden is heavier.
In sum, we agree with the trial court that defendant failed
to present a colorable claim of innocence. This factor disfavors
permitting defendant to withdraw her plea.
C.
Defendant's challenge to the court's analysis of factors two,
three and four, does not warrant an equally extended discussion.
Factor two requires a court to consider "whether defendant has
22 A-1438-15T2 presented fair and just reasons for withdrawal, and whether those
reasons have any force." Slater, 198 N.J. at 159. Defendant
contends her attorney was ineffective by failing to review
discovery materials and misinforming her about the immigration
consequences of her plea. However, the discovery materials, even
if they contained all that defendant alleges, would, at most, have
established that she was a victim of the husband's exploitation.
It would not have established her claim that she was ignorant of
Persaud's scheme, and did not participate in it. Indeed, her
claim that the husband actually advised her to disseminate the
tapes to neighbors if his wife did not pay her, would seem to
support the State's case that she actually attempted to follow his
directions.
As for the claim that her plea counsel mistakenly advised her
about the immigration consequences of her plea, we previously
noted:
[I]n her plea hearing, the judge elicited defendant's acknowledgement that "as a result of your guilty plea . . . you will be subject to [a] deportation proceeding[.]" Defendant also signed a form, in addition to the plea form promulgated pursuant to Directive #14- 08, advising her that "there is a substantial likelihood that you will be deported, and your deportation should not be a surprise, but should be anticipated as a result of this guilty plea."
[Williams I, slip op. at 3 n.1.]
23 A-1438-15T2 Lastly with respect to factor two, defendant contends that
she pleaded guilty because she was suffering from the emotional
and psychological effects of years of abuse. She has presented
evidence that she was despondent and depressed while incarcerated.
Yet, she has presented no compelling evidence that any emotional
or psychological condition led her to plead guilty, as opposed to
maintain her innocence of the charges against her. In sum,
defendant has failed to present compelling reasons for withdrawing
her plea on that basis.
Turning to factor three, the trial court acknowledged the
existence of a plea bargain is generally not "given great weight
in the balancing process." See Slater, 198 N.J. at 161. Yet, the
interests in finality, which must be balanced against a defendant's
interest in withdrawing a plea, are shared not only by the State,
but by the crime victim. "The victims of an offense also have an
obvious interest in the finality of criminal proceedings." Id.
at 155.
The plea bargain here not only saved the State from the burden
of a trial; it shielded the victim from the emotional turmoil of
testifying at such a trial, and the embarrassment of a public
trial, whether she testified or not. The revival of these issues,
long after the case was apparently resolved, exacts an even greater
24 A-1438-15T2 toll on the victim, than if the defendant had insisted upon a
trial in the first place. Just as "[c]ourts taking pleas are
undoubtedly conscious of the need to end the suffering" of child-
sexual-assault victims, see Smullen, 118 N.J. at 418, the court
must be conscious of the need to end the suffering of the victim
in this sexually-tinged extortion case. This factor weighs against
granting defendant's motion to withdraw her plea.
Lastly, we discern no error in the court's determination that
the State would suffer prejudice if forced to try this case many
years after the events. See Slater, 198 N.J. at 161 (factor four).
The trial court accepted the assistant prosecutor's representation
that the victim, who was then ninety years old, had Alzheimer's
disease. We recognize that the State did not present competent
evidence of the victim's medical condition. The assistant
prosecutor merely contended that indications of the victim's
disability would be evident in her recent deposition. On the
other hand, defendant bore the burden to establish grounds for her
withdrawal. She has not attempted to contest the assistant
prosecutor's point by providing us with the victim's deposition
transcript.
In sum, we discern no abuse of discretion in the court's
analysis of the Slater factors, and its denial of defendant's
post-sentence motion to withdraw her plea. To the extent not
25 A-1438-15T2 addressed, defendant's remaining arguments lack sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
26 A-1438-15T2