STATE OF NEW JERSEY VS. THERESA WILLIAMS (11-02-0231, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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