State v. Cesar A. Lipa (071011) , 219 N.J. 323 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Cesar A. Lipa (A-31-12) (071011)
Argued February 3, 2014 -- Decided September 25, 2014
RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers the application of the standards set forth in State v. Slater, 198 N.J. 145
(2009) and Rule 3:21-1, in the context of defendant’s pre-sentence motion to withdraw his plea of guilty to first-
degree aggravated sexual assault.
Defendant, Cesar A. Lipa, pleaded guilty to first-degree aggravated sexual assault, based on allegations that
he committed sexual acts against M.G. on three occasions when she was between the ages of thirteen and sixteen.
The State agreed to dismiss related charges and to recommend defendant be sentenced as if convicted of a second-
degree crime. During the plea colloquy on January 9, 2009, defendant gave answers to counsel’s leading questions
that established all of the elements of the offense to which he intended to plead guilty.
On October 27, 2009, after retaining new counsel, and before his sentencing hearing, defendant moved to
withdraw his guilty plea and to compel production of certain agency records (DYFS). Defendant certified that
“[m]y prior attorney failed to obtain the necessary documentations to support my innocence.” In particular,
defendant claimed that he told his first counsel “that alleged victim M.G. had on at least two other occasions made
false allegations of sexual assault which were investigated by DYFS.” According to the certification, “DYFS found
that the allegations of both matters were without merit.” The judge reviewed the DYFS records, noted that they
provided “no basis of a false allegation,” and denied defendant’s request to compel production.
The judge then reviewed defendant’s certification in support of his motion to withdraw the guilty plea.
Defendant certified that he was “innocent of the[] charges,” that “[t]he allegations by M.G. are false,” and that he
“did not sexually assault her at any time.” He certified that at the time of his plea, his attorney told him that he “had
no other option than to take the plea offer since [he] did not have a chance of winning at [t]rial.” Defendant further
claimed to have been recovering from knee surgery at the time of the second incident making him physically unable
to commit the alleged act – namely, climbing through a window into M.G.’s second-floor bedroom while
intoxicated. Defendant introduced a photograph depicting the condition of his leg at that time and photographs
showing the exterior of M.G.’s home.
After reviewing the test established in Slater, 198 N.J. at 158-59, the court denied defendant’s motion to
withdraw his guilty plea. The judge found that defendant had not properly asserted a claim of innocence because his
claim merely made a “bald assertion” without factual support, and that the facts he relied on were not unknown to
him at the time of the plea. The judge concluded that defendant was adequately and correctly informed of the
consequences of his plea, and his expectations under the plea were met. The court proceeded to sentence defendant
to an eight-year term, subject to a period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed and the Appellate Division affirmed the denial of his motion to withdraw his guilty
plea. The panel concluded that the judge’s decision was well within his discretion in light of the insubstantial facts
asserted by defendant in support of the motion. The Court granted defendant’s petition for certification. State v.
Lipa, 213 N.J. 396 (2013).
HELD: In the face of a general denial and specific, potentially plausible facts negating guilt, defendant’s argument
that the trial court misapplied the standard for deciding a pre-sentence motion to withdraw a guilty plea has merit.
Balancing the evidence and arguments in this case against all of the Slater factors, defendant is entitled to withdraw
his guilty plea in the interest of justice.
1
1. Before a court can accept a defendant’s guilty plea, it first must be convinced that (1) the defendant has provided
an adequate factual basis for the plea; (2) the plea is made voluntarily; and (3) the plea is made knowingly. R. 3:9-2.
Once it is established that a guilty plea was made voluntarily, it may only be withdrawn at the discretion of the trial
court. State v. Simon, 161 N.J. 416, 444 (1999). A trial judge’s finding that a plea was voluntarily and knowingly
entered is entitled to appellate deference so long as that determination is supported by sufficient credible evidence in
the record. State v. McCoy, 222 N.J. Super. 626, 629 (App. Div. 1988), aff’d, 116 N.J. 293 (1989). “[T]he trial
court’s denial of defendant’s request to withdraw his guilty plea will be reversed on appeal only if there was an
abuse of discretion which renders the lower court’s decision clearly erroneous.” Simon, 161 N.J. at 444. (pp. 9-10)
2. Rule 3:21-1, which governs the withdrawal of guilty pleas, provides that “[a] motion to withdraw a plea of guilty
or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest
injustice.” Rule 3:21-1 explicitly provides that the post-sentencing standard for withdrawal of a guilty plea is
manifest injustice. Before sentencing, the standard is “the interests of justice.” R. 3:9-3(e). (pp. 10-11)
3. In Slater, the Court outlined a framework to assess a claim to withdraw a guilty plea, and directed trial courts to
consider the following factors: “(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.” 198 N.J. at 150. Here,
defendant certified that he is innocent, claiming that he was physically unable to commit the alleged assault because
he had surgery on one of his knees around the alleged date of the incident and would have been further hampered if
he had been intoxicated as M.G. described. Defendant categorically denied guilt and submitted photographs to
support his contentions. He also certified that a DYFS investigation found that M.G.’s previous accusations of
sexual assault against defendant and a family friend lacked merit. (pp. 11-12)
4. The Court considers defendant’s claim in light of the Slater factors. With respect to the first factor, a colorable
claim of innocence, defendant must make a showing beyond a mere assertion of innocence. He must point to
specific, credible facts that support his claim. Under the “colorable claim of innocence” standard, the 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. Here, although the admissibility and veracity of defendant’s evidence has not
been tested, defendant has provided more than “a bald assertion” of innocence. The specific facts that defendant
asserted could provide a plausible basis to impeach M.G.’s testimony and cause a reasonable jury to find reasonable
doubt as to defendant’s guilt. Thus, defendant satisfies Slater’s first requirement. With regard to the second Slater
factor, defendant has presented sufficient reasons to support his request for withdrawal. Defendant asserts that he is
innocent and explains that his counsel induced him to plead guilty, despite his innocence. As support for this claim,
defendant offers some evidence that contradicts the State’s charges. The third factor, the presence of a plea
agreement, weighs against defendant, but, given that the “vast majority of criminal cases are resolved through plea
bargains[,]” this factor is not given the greatest weight. Although the trial judge did not reach the question of
prejudice to the State, nothing in particular in the record demonstrates that the State would be prejudiced by
defendant’s plea withdrawal in this case. Balancing the evidence and arguments in this case against all of the Slater
factors, defendant has met his burden and is entitled to withdraw his guilty plea in the interest of justice. (pp. 12-16)
5. In light of its holding, the Court does not reach the merits of defendant’s contention that the judge failed to
adequately inform him of the deportation consequences of his guilty plea. The Court also does not address
defendant’s alternative argument that his sentence must be reduced because the judge failed to find and apply
existing mitigating factors. (pp. 2, 16)
The judgment of the Appellate Division is REVERSED, the judgment of conviction is VACATED, the
charges dismissed pursuant to the plea agreement are REINSTATED, and the matter is REMANDED to the trial
court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-31 September Term 2012
071011
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CESAR A. LIPA,
Defendant-Appellant.
Argued February 3, 2014 – Decided September 25, 2014
On certification to the Superior Court,
Appellate Division.
Daniel V. Gautieri, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Carol M. Henderson, Assistant Attorney
General, argued the cause for respondent
(John J. Hoffman, Acting Attorney General of
New Jersey, attorney).
JUDGE RODRÍGUEZ (temporarily assigned) delivered the
opinion of the Court.
Defendant asks this Court to reverse the Appellate
Division’s affirmance of the denial of his motion to withdraw
his guilty plea to first-degree aggravated sexual assault.
Defendant argues that the Law Division judge misapplied the
standard for deciding a motion to withdraw a guilty plea prior
to sentencing, as set forth in State v. Slater, 198 N.J. 145
1
(2009), and Rule 3:21-1. In the face of a general denial and
specific, potentially plausible facts negating guilt, we find
merit in this argument and reverse the judgment of the Appellate
Division. Given this holding, we do not reach the merits of
defendant’s second contention: that the judge failed to
adequately inform him of the deportation consequences of his
guilty plea. We also do not address defendant’s alternative
argument that his sentence must be reduced because the judge
failed to find and apply existing mitigating factors.
I.
A.
Pursuant to an agreement with the State, defendant Cesar A.
Lipa, a Peruvian citizen, pleaded guilty to first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2). The charge
was based on allegations that he committed sexual acts on three
occasions against M.G., who was between the ages of thirteen and
sixteen at the time.
The record reveals that on February 5, 2008, then sixteen-
year-old M.G. informed her teacher that defendant sexually
assaulted her on three occasions between January 1, 2005, and
August 1, 2007. In a subsequent interview with the Division of
Youth and Family Services (DYFS),1 M.G. stated that the first
1 This agency has been renamed the Division of Child Protection
and Permanency. L. 2012, c. 16, eff. June 29, 2012.
2
incident occurred in 2005, when she was thirteen years old.
According to M.G., defendant, who was inebriated at the time,
entered her bedroom and forcibly penetrated her vagina with his
fingers, fleeing after she screamed.
The second incident allegedly occurred in the summer of
2005, when defendant climbed into her second-floor bedroom
through a window and penetrated her vaginally with his fingers
and penis. According to M.G., she told defendant to stop, but
he did not cease until she kneed him in the groin. During this
assault, M.G. reported that defendant also touched her breasts
and kissed her on the lips. Once again, she said that defendant
was drunk.
The third assault allegedly took place in July 2007, when
M.G. was sixteen years old. She stated that defendant, while
drunk, entered her bedroom and penetrated her vaginally with his
fingers.
Defendant was arrested and later indicted. Pursuant to a
plea agreement, defendant pleaded guilty to count one, first-
degree aggravated sexual assault “on diverse dates.” The State
agreed to dismiss related charges and to recommend defendant be
sentenced as if convicted of a second-degree crime.
During the plea colloquy on January 9, 2009, defendant gave
answers to leading questions by his counsel. The questions
established all of the elements of the offense to which he
3
intended to plead guilty. The judge then asked another leading
question: “And the only reason why you give up all those rights
[waived as a result of the guilty plea] is because you’re in
fact guilty. Is that true?” Defendant answered, “yes,” and the
judge accepted defendant’s plea.
On October 27, 2009, after retaining new counsel, and
before his sentencing hearing, defendant moved to withdraw his
guilty plea.2 Defendant also moved to compel production of
certain DYFS records. Defendant certified that “[m]y prior
attorney failed to obtain the necessary documentations to
support my innocence.” In particular, defendant claimed that he
told his first counsel “that alleged victim M.G. had on at least
two other occasions made false allegations of sexual assault
which were investigated by DYFS.” One incident allegedly
involved defendant; another allegation involved a friend of
M.G.’s father. According to the certification, “DYFS found that
the allegations of both matters were without merit.”
The judge first reviewed the DYFS records and noted that
they provided “no basis of a false allegation.” The judge
therefore denied defendant’s request to compel production as
irrelevant.
2 The record does not reveal the reason for the substantial
interval between the entry of the plea and the hearing on the
motion.
4
The judge then reviewed defendant’s certification in
support of his motion to withdraw the guilty plea. With respect
to the allegations against him, defendant certified as follows:
The alleged victim states that on three
separate occasions I sexually assaulted her.
She is not telling the truth and I am
innocent of these charges. The allegations
by M.G. are false and I did not sexually
assault her at any time.
Defendant certified that “[a]t the time of my plea, my
prior attorney told me that I had no other option than to take
the plea offer since I did not have a chance of winning at
[t]rial.” Defendant claimed to have been recovering from knee
surgery at the time of the second incident, thus making him
physically unable to commit the alleged act. In support of that
claim, defendant introduced a photograph depicting the condition
of his leg at that time. He also presented ten photographs
depicting the exterior of the building where M.G. lived. He
argued that the photographs illustrated that it was “almost
impossible” to climb out of the bathroom window and into M.G.’s
bedroom window, particularly if he was intoxicated at the time.
The judge denied defendant’s motion to withdraw the guilty
plea after reviewing the test set by this Court in Slater,
supra, 198 N.J. at 158-59. The judge found that defendant had
not properly asserted a claim of innocence because defendant’s
claim merely made a “bald assertion” without factual support,
5
and that the facts he relied on were not unknown to him at the
time of the guilty plea.
The judge concluded that defendant was adequately and
correctly informed of the consequences of his guilty plea, and
his expectations under the plea were met. Moreover, the judge
noted that defendants bear a heavier burden to withdraw guilty
pleas entered as part of a plea agreement.
Thereafter, the judge proceeded to sentencing. The judge
found that two of the aggravating factors enumerated in N.J.S.A.
2C:44-1a applied: “(3) the risk that the defendant will commit
another offense”; and “(9) the need for deterring the defendant
and others from violating the law.” The judge found no
applicable mitigating factors and imposed an eight-year term,
subject to a period of parole ineligibility under the No Early
Release Act, N.J.S.A. 2C:43-7.2.
B.
Defendant appealed. The Appellate Division affirmed the
judge’s denial of the motion to withdraw the guilty plea. The
Appellate Division concluded that the judge’s decision was well
within his discretion in light of the insubstantial facts
asserted by defendant in support of the motion. The panel
pointed out that the DYFS records sought by defendant pertained
to allegations of events in 2002, which had no bearing on
whether the acts in 2005 and 2007 had been committed. In
6
addition, the panel observed that defendant’s claim that he
could not have committed the second assault due to his knee
injury does not “preclude the likelihood that defendant was able
to engage in the conduct he admitted to at the plea hearing.”
Defendant sought certification. We granted the petition.
State v. Lipa, 213 N.J. 396 (2013).
II.
Defendant argues that the trial court misapplied the
holding in Slater in denying his motion to withdraw his guilty
plea. Defendant asserts that he not only provided possible
motivations to explain M.G.’s fraudulent claims, but he also
provided photographic evidence of the back of the house and the
condition of his knee at the time of the alleged assault, which
contradict M.G.’s allegation. Thus, defendant contends that he
advanced more than a “bald assertion” of innocence. He
therefore argues that sufficient evidence existed to satisfy the
first Slater factor.
As to the second Slater factor, defendant relies on his
innocence claims and the ineffectiveness of his counsel to
justify his reasons for withdrawal. He claims that counsel
induced him to plead guilty.
Defendant also claims that the existence of a plea
agreement in the present case is immaterial under the third
Slater factor because such agreements are common in the criminal
7
context. Regarding the fourth Slater factor, defendant contends
that he moved to withdraw his guilty plea prior to sentencing,
when a more liberal standard of review applies, and the State
offered no evidence showing that prejudice would result from
permitting his plea to be withdrawn. Defendant argues that he
has met the burden for three of the four factors in the Slater
balancing test, and thus should succeed on his motion.
The State submits that defendant bears the burden of
showing that withdrawal of his plea is in the interest of
justice -- an evaluation that is ultimately within the
discretion of the court. The State argues defendant entered his
guilty plea knowingly and voluntarily and in accordance with
Rule 3:9-2. With regard to defendant’s claim that the judge did
not inform him of the possibility of deportation, the State
highlights the trial judge’s statement during the colloquy and
plea agreement that defendant signed and initialed,
acknowledging his awareness of the deportation consequences.
Moreover, the State argues that the Slater factors weigh
heavily against defendant. When assessing claims of innocence
under the first Slater factor, defendant must offer more than
“bald assertions” of innocence. Here, defendant offers evidence
contending it would have been “almost impossible” for him to
enter M.G.’s window after his knee surgery. According to the
State, however, defendant fails to offer any evidence supporting
8
his innocence for the first and third assaults. Further, the
State notes that the evidence presented was known to defendant
at the time of the plea and was reviewed with counsel prior to
his plea.
The State argues that the remaining Slater factors
similarly weigh against defendant. The State maintains that the
second factor, fair and just reasons for withdrawal, does not
warrant withdrawal of defendant’s guilty plea because the record
provides no indication defendant was misled or unaware of the
deportation consequences at the time his plea was entered.
Further, the State asserts that defendant did not explain why
the “knee surgery” defense was not raised earlier. In addition,
because defendant’s plea resulted from prosecutorial
negotiations, the State argues that defendant faces a heavier
burden under factor three. Finally, the State contends that
permitting defendant to withdraw his plea would result in
significant prejudice to the State, particularly given the
sensitive nature of child-sexual-assault cases for all parties
involved.
III.
Before a court can accept a defendant’s guilty plea, it
first must be convinced that (1) the defendant has provided an
adequate factual basis for the plea; (2) the plea is made
voluntarily; and (3) the plea is made knowingly. R. 3:9-2; see
9
also State v. Crawley, 149 N.J. 310, 318 (1997). In short, a
trial court must not accept a guilty plea unless it is satisfied
that the defendant is in fact guilty. The judicial system
cannot countenance the miscarriage of justice that enures when a
defendant pleads guilty to an offense but defendant is not
guilty and is doing so out of fear, intimidation, or to gain
some other objective.
Once it is established that a guilty plea was made
voluntarily, it may only be withdrawn at the discretion of the
trial court. State v. Simon, 161 N.J. 416, 444 (1999). A trial
judge’s finding that a plea was voluntarily and knowingly
entered is entitled to appellate deference so long as that
determination is supported by sufficient credible evidence in
the record. State v. McCoy, 222 N.J. Super. 626, 629 (App. Div.
1988), aff’d, 116 N.J. 293 (1989). “Thus, the trial court’s
denial of defendant’s request to withdraw his guilty plea will
be reversed on appeal only if there was an abuse of discretion
which renders the lower court’s decision clearly erroneous.”
Simon, supra, 161 N.J. at 444.
Rule 3:21-1 governs the withdrawal of guilty pleas. It
provides that “[a] motion to withdraw a plea of guilty or non
vult shall be made before sentencing, but the court may permit
it to be made thereafter to correct a manifest injustice.” R.
3:21-1. The rule explicitly provides that the post-sentencing
10
standard for withdrawal of a guilty plea is manifest injustice.
Ibid.; see also State v. Johnson, 182 N.J. 232, 237 (2004).
Before sentencing, the standard for plea withdrawal is “the
interests of justice.” R. 3:9-3(e); State v. Howard, 110 N.J.
113, 123-24 (1988).
This Court outlined a framework to assess claims to
withdraw a plea in Slater, supra, 198 N.J. at 150:
[I]n evaluating motions to withdraw a guilty
plea, trial courts should consider the
following factors: (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.
In Slater, the defendant consented to a search of a motel
room. Police officers saw what appeared to be a small bag of
marijuana in a dresser drawer that was open about six inches.
Ibid. After frisking and handcuffing Slater, the officers
opened the drawer and, in addition to the marijuana, found
approximately fifteen grams of crack cocaine. Ibid. The
defendant entered a guilty plea to second-degree possession of a
controlled dangerous substance with the intent to distribute but
subsequently moved to withdraw the plea before sentencing. Id.
at 152. To support the motion, the defendant “claim[ed] that he
was just visiting the motel room where the cocaine was found,
11
that the room was registered to another person, and that he had
no knowledge or control of the drugs.” Id. at 162. The motion
was denied. Id. at 153.
The Appellate Division affirmed. Ibid. This Court
reversed the judgment of the Appellate Division and concluded
that the defendant “presented specific, potentially plausible
facts, and not simply a bald assertion.” Id. at 163.
IV.
Here, defendant has presented a certification asserting
that he is innocent because he was physically unable to climb
into the victim’s bedroom window in order to commit an assault
due to the fact that he had surgery on one of his knees around
the alleged date of the incident. According to M.G., defendant
was inebriated at the time. His condition thus would have
further hampered his ability to commit the assault in the manner
M.G. described. In support of this argument, defendant
categorically denied guilt and submitted photographs of his knee
after the surgery and the exterior of the building in question.
He also certified that a DYFS investigation found that M.G.’s
previous accusations of sexual assault against defendant and a
family friend lacked merit.
We consider defendant’s claim in light of the Slater
factors. With respect to the first factor, a colorable claim of
innocence, defendant must make a showing beyond a mere assertion
12
of innocence. Slater, supra, 198 N.J. at 158-59. He must point
to specific, credible facts that support his claim. Id. at 159.
The motion judge, however, need not be convinced that the proofs
a defendant puts forward to support his claim of innocence
create a “winning argument.” State v. Munroe, 210 N.J. 429, 442
(2012). This is “because, in the end, legitimate factual
disputes must be resolved by the jury.” Ibid.
This Court addressed the “colorable claim of innocence”
standard in Munroe. There, the motion judge denied the
defendant’s motion to withdraw his guilty plea even though he
raised a self-defense claim during his presentence interview,
which was never contradicted at his plea colloquy. Id. at 445.
The motion judge “was dismissive of defendant’s self-defense
claim” because the defendant was armed with a gun, while the
victim was armed with only a knife. Id. at 446. The Court
determined, however, that the disparity in weaponry was an issue
for a jury rather than the motion judge. Ibid. As a result,
“[t]he issue is not whether in the mind of the trial court, ‘the
likelihood of [defendant] winning on a self-defense [claim] was
next to nothing.’ Rather, the issue is whether defendant raised
a colorable claim of innocence that should rightly have been
decided by a jury.” Ibid. Thus, the evidence presented in
support of the claim of innocence must be specific and raise a
13
legitimate dispute for the jury, but need not clearly exonerate
the defendant.
We are mindful that the admissibility and veracity of
defendant’s evidence has not been tested. Nevertheless, the
specific facts that defendant asserted could provide a plausible
basis to impeach M.G.’s testimony and cause a reasonable jury to
find reasonable doubt as to defendant’s guilt. In our view,
defendant has provided more than “a bald assertion.” His
showing meets Slater’s first requirement. In fact, he presented
evidence as strong as what the defendant in Slater presented.
The second Slater factor “focuses on the basic fairness of
enforcing a guilty plea” and calls on defendant to present “fair
and just reasons for withdrawal.” Slater, supra, 198 N.J. at
159. Courts must assess “whether those reasons have any force.”
Ibid. Slater instructs that
[i]n assessing the nature and strength of
the reasons for withdrawal, courts should
not approach them with skepticism. At the
same time, trial judges must act with “great
care and realism” because defendants often
have little to lose in challenging a guilty
plea.
[Slater, supra, 198 N.J. at 160 (quoting
State v. Taylor, 80 N.J. 353, 365 (1979)).]
Here, defendant asserts he is innocent. He also explains
why, despite being innocent, he agreed to plead guilty. He
asserts that his first counsel was ineffective in preparing the
14
case and, later, gave defendant no option but to accept the plea
agreement. Defendant thus claims that his counsel induced him
to plead guilty. As support for this claim, defendant offers
some evidence that contradicts the State’s charges. We find
that defendant has presented sufficient reasons to support his
request for withdrawal. The third factor, the presence of a
plea agreement, weighs against defendant. Defendant entered his
plea as part of a plea agreement. In exchange for his plea,
defendant was sentenced as a second-degree offender rather than
a first-degree offender. In addition, related charges that
could have resulted in consecutive sentences were dismissed.
However, given that the “vast majority of criminal cases are
resolved through plea bargains[,]” this factor is not given the
greatest weight. Id. at 161.
The judge did not reach the question of prejudice to the
State, despite the pronouncement in Slater that courts should
consider all four factors. Id. at 162. In any event, nothing
in particular in the record demonstrates that the State would be
prejudiced by defendant’s plea withdrawal in this case.
Slater presents a balancing test. Here, defendant’s
showing on the first factor is quite strong. After balancing
the evidence and arguments in this case against all of the
Slater factors, we conclude that defendant has met his burden
15
and is entitled to withdraw his guilty plea in the interest of
justice.
In light of these conclusions we need not reach the other
issues defendant raised.
V.
Therefore, the judgment of the Appellate Division,
affirming the denial of defendant’s motion to withdraw his
guilty plea, is reversed. The judgment of conviction is
vacated, the charges dismissed pursuant to the plea agreement
are reinstated and the matter is remanded to the Law Division
for trial or other proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUDGE RODRÍGUEZ’s opinion.
16
SUPREME COURT OF NEW JERSEY
NO. A-31 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CESAR A. LIPA,
Defendant-Appellant.
DECIDED September 25, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodríguez
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
VACATE/
CHECKLIST
REINSTATE/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1