State v. Jerry P. Bush, unpublished opinion, App. Div. Docket No. A-4837-06T4 (March 31, 2010) – Denial of motion to withdraw guilty plea reversed, case remanded for further proceedings.
“[D]efendant filed a motion to withdraw his guilty plea on the grounds that he had learned of the State’s intent to pursue new charges against him based upon his stepdaughter’s claims, revealed in July 2006, that defendant had engaged in sexual activity with her in addition to taking the photographs. Defense counsel certified that, ‘[h]ad defendant known at the time of his guilty plea that just two months later [his stepdaughter] would accuse him of sexual assault, allegations which he vehemently denies, he never would have entered a guilty plea to the taking of the photographs.’…
The trial judge noted that the ‘[S]tate was unaware of the more serious charges until after the guilty plea was entered….’ The judge did not address, however, whether or not the intervening event of the second indictment charging the more serious offense of first-degree aggravated sexual assault, had any bearing upon defendant’s plea with respect to the knowledge which informed his decision to enter into that plea.
Nor did the judge address defendant’s ‘colorable claim of innocence,’ [citation omitted], that counsel represented was set forth in the letter defendant ultimately decided not to submit to the court…. Having considered these contentions in light of the record and controlling legal principles, we conclude that defendant is entitled to the benefit of a hearing pursuant to the Supreme Court’s recent decision in State v. Slater, 198 N.J. 145 (2009), which was decided during the pendency of defendant’s appeal.” (Raquel Y. Bristol, A.D.P.D.)