State v. Michael Stuart, unpublished opinion, App. Div. Docket No. A-5060-06T4 (March 30, 2010) – Conviction reversed. “We next address defendant’s claim that he was not given notice, prior to the trial, that the State intended to invoke the Three Strikes Law and hence he did not have a meaningful opportunity to evaluate what he contends was the State’s pretrial plea offer of a fifteen year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2….[T]ranscripts [of the pre-trial conference] support defendant’s claim that, at least on the record, he was not advised of his possible exposure to life in prison without parole. Both those transcripts and later discussions in the sentencing transcript also strongly suggest that neither his counsel nor the judges conducting those proceedings were aware, prior to trial, that defendant could be subject to the Three Strikes Law. In fact, based on the colloquy at the sentencing hearing, the prosecutor may also have been unaware of this issue.
However, defendant’s discussions with his counsel are not of record and would have to be explored in a further evidentiary proceeding…. Because defendant’s claim rests in part on facts outside the record, it should be explored at a testimonial hearing…. Because the outcome of the remand hearing may obviate the need for a second trial, …, the hearing shall be held prior to the trial.”