STATE OF NEW JERSEY VS. EDWIN ESTRADA (11-03-0444, 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NOT FOR PUBLICATION WITHOUT THE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-2078-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWIN ESTRADA,

Defendant-Appellant.
_________________________________

Submitted September 12, 2016 – Remanded September 26, 2016
Resubmitted May 14, 2018 – Decided June 12, 2018

Before Judges Sabatino, Nugent and Currier.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
11-03-0444.

Joseph E. Krakora, Public Defender, attorney
for appellant (Margaret McLane, Assistant
Deputy Public Defender, of counsel and on the
briefs).

Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Catherine A. Foddai,
Special Deputy Attorney General/Acting Senior
Assistant Prosecutor, on the brief; Annmarie
Cozzi, Special Deputy Attorney General/Acting
Senior Assistant Prosecutor, of counsel and
on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

This matter returns to this court following a remand we called

for in our September 2016 unpublished opinion. State v. Estrada,

("Estrada I") No. A-2078-14 (App. Div. Sep. 26, 2016), motion for

leave to appeal denied, 228 N.J. 500 (2017). Our opinion vacated

an order nullifying a negotiated plea agreement and directed the

trial court to consider the nullification issue anew, using

appropriate legal standards. Id., slip op. at 16. On remand, a

different judge in the trial court reconsidered the issues and

independently concluded the plea agreement should be set aside.

For the reasons that follow, we vacate the trial court's May

15, 2017 nullification order, reinstate the original negotiated

guilty plea, and remand the matter for sentencing.

I.

We substantially incorporate by reference the factual and

procedural background described in our September 2016 opinion. We

supplement and update that background as follows.

In March 2011, defendant Edwin Estrada and his co-defendant,

Andrew Abella, were charged in a thirteen-count indictment, the

first eleven counts of which pertained to Estrada. Count one

charged defendant with conspiring with Abella to commit burglary.

Counts two and three charged both men with burglary. Count four

2 A-2078-14T3
charged defendant with murder, count five with burglary, count

seven with robbery, counts six and eight with felony murder

predicated on the burglary and robbery counts, respectively, count

nine with credit card theft, and counts ten and eleven with weapons

offenses.

As its most serious count, the indictment accused defendant

of murdering an elderly victim after breaking into the victim's

house to rob him. The State's proofs reflected that defendant

repeatedly struck the victim in the head with a metal pot, and

then fled the scene with the victim's credit card. Defendant was

age eighteen at the time, and he had no prior criminal or juvenile

record. The victim, the grandfather of one of defendant's

acquaintances, was age eighty-eight.

Following the indictment, defendant was evaluated by a board-

certified psychiatrist, Dr. Azariah Eshkenazi, an Assistant

Professor of Psychiatry at the Mount Sinai School of Medicine. In

his report, the expert diagnosed defendant with bipolar disorder

and polysubstance abuse. Dr. Eshkenazi opined that, at the time

of the lethal events in the victim's home, defendant's "ability

to formulate an intent [to kill the victim] was certainly impaired

to one degree or another." The expert attributed that impairment

to defendant's "psychiatric condition and the drugs that he abused

. . . ." The expert's findings are consistent with defendant's

3 A-2078-14T3
account that he had ingested angel dust and smoked marijuana in

the victim's bathroom before the attack, had begun to hallucinate,

and perceived that the victim was armed and about to shoot him.

The State disputed defendant's claims of diminished capacity.

Its case was bolstered by the fact that defendant had made

inculpatory statements when he was interviewed by police after his

arrest. There was also clear and undisputed evidence that

defendant was the person who had attacked the victim.

The prosecutor's office and defense counsel engaged in

lengthy plea negotiations for about a year. During that time, the

prosecutor's office had an estimated thirty discussions with

members of the victim's family. Some of those family members

wanted the maximum punishment imposed on defendant, while others

were willing to accept a plea agreement that exposed defendant to

a less severe sentence.

On January 22, 2013, defendant and his counsel appeared before

a judge in the Criminal Part ("the first judge") and presented to

him a negotiated plea. Under the terms of that plea, defendant

agreed to forego a trial and plead guilty to a reduced charge of

first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). The

State, in turn, agreed to recommend to the court a sentence of a

twenty-seven-year custodial term, subject to an 85% parole

ineligibility period under the No Early Release Act ("NERA"),

4 A-2078-14T3
N.J.S.A. 2C:43-7.2. The first judge accepted the factual basis

placed on the record to support the aggravated manslaughter

conviction, as well as the terms of the plea agreement. The matter

was then set down for sentencing.

On March 8, 2013, the parties appeared before a different

judge for sentencing ("the second judge"). Following an extended

colloquy, the second judge vacated the plea. Defendant filed a

motion for leave to appeal, which this court denied.

Defendant was tried before a third judge, and a jury, in a

four-week trial ending in July 2014. He was found guilty of all

eleven counts of the indictment.

On October 24, 2014, defendant was sentenced on count four,

first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), to a sixty-

year term of incarceration, with eighty-five percent parole

ineligibility under NERA. Counts six, eight, ten, and eleven

merged into count four. The prison terms for the remaining counts

were made concurrent to count four.

Defendant appealed to this court. Among other things, he

argued the second judge abused her discretion by setting aside the

negotiated plea. He also raised various contentions of trial

error.

In our unpublished September 2016 opinion, we reached only

the plea nullification issue, finding that the second judge had

5 A-2078-14T3
erred in several respects. Estrada I, slip op. at 11.

Specifically, we held that the second judge erred when she:

concluded that voluntary intoxication was not a defense to

purposeful murder; found that the expert report from the examining

psychologist, Dr. Eshkenazi, did not support defendant's

diminished capacity defense; invoked her own life experiences to

inform her legal judgment; and gave undue weight to the statements

of the victim's family in deciding whether to accept or reject the

plea. Id. at 11-14.

Because of these errors, we vacated the 2013 order setting

aside the plea and remanded for "reexamination of the negotiated

plea under the appropriate legal criteria expressed in Rule 3:9-

3(e) and case law," and "[a] fresh assessment of whether the plea

should or should not be set aside . . . ." Id. at 14. In so

ruling, we declined to "determine in advance the scope of what the

trial court [could] consider in the remand proceeding," including

"what, if any, weight or consideration [should] be accorded to the

[trial] proofs" or the guilty verdicts, leaving these questions

"of scope and relevance" to be decided in the first instance by

the trial court. Id. at 14-15.

Following a hearing, a fourth judge set aside the plea

agreement a second time, after finding the agreement did not serve

the interests of justice. The judge largely relied on the report

6 A-2078-14T3
and trial testimony of the State's psychiatric expert, Dr. Steven

Simring, along with the presentence report and the trial testimony

of both defendant and Dr. Eshkenazi. Following her ruling on the

plea, the judge ruled that the sixty-year prison sentence imposed

after the trial should "remain in full force and effect."

Defendant now appeals again. He renews these arguments from

his original brief that were not addressed in our September 2016

opinion:

[POINT I (ORIGINAL APPEAL) OMITTED.]

POINT II (ORIGINAL APPEAL)

THE STATE'S EXPERT IMPROPERLY PROVIDED
IRRELEVANT AND HIGHLY PREJUDICIAL TESTIMONY
WHICH REQUIRES REVERSAL OF DEFENDANT'S
CONVICTIONS (Partially Raised Below).

A. Ultimate Issue Testimony.

B. Irrelevant and Prejudicial Responses.

POINT III (ORIGINAL APPEAL)

THE COURT ERRED IN FAILING TO INSTRUCT THE
JURY THAT THE FELONY AND THE DEATH MUST BE
INTEGRAL PARTS OF ONE CONTINUOUS TRANSACTION
AND THAT THE DIMINISHED CAPACITY DEFENSE WAS
RELEVANT TO THIS QUESTION (Partially Raised
Below).

POINT IV (ORIGINAL APPEAL)

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
BECAUSE THE COURT IMPROPERLY FAILED TO FIND
MITIGATING FACTOR 4, INADEQUATELY CONSIDERED
DEFENDANT'S YOUNG AGE, IMPROPERLY FOUND

7 A-2078-14T3
 AGGRAVATING FACTOR 1, AND ENGAGED IN
IMPERMISSIBLE DOUBLE-COUNTING.

REPLY POINT I (ORIGINAL APPEAL)

IT WAS AN ABUSE OF DISCRETION TO REJECT
DEFENDANT'S GUILTY PLEA.

REPLY POINT II (ORIGINAL APPEAL)

THE STATE'S EXPERT IMPROPERLY TESTIFIED TO THE
ULTIMATE ISSUE, REQUIRING REVERSAL OF
DEFENDANT'S CONVICTIONS.

He also raised these points in a pro se supplemental brief:

PRO SE POINT I

FAILURE OF THE TRIAL COURT TO SUBMIT WRITTEN
COPIES OF JURY INSTRUCTIONS T[O] JURORS FOR
USE IN DELIBERATIONS WAS IN VIOLATION OF R.
1:8-3(B)(2) AND VIOLATED DEFENDANT'S RIGHT TO
A FAIR TRIAL. (Raised Below).

PRO SE POINT II

THE TRIAL COURT ERRED IN ALLOWING HEARSAY
TESTIMONY REGARDING THE DECED[E]NT'S
STATEMENTS IN VIOLATION OF THE HEARSAY RULE.

PRO SE POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DISALLOWING ANY MENTION TO THE JURORS BY
EITHER THE DEFENDANT, HIS FAMILY MEMBERS, OR
THE DEFENSE PSYCHIATRIC EXPERT, OR ANY
WITNESSES FOR EITHER THE DEFENSE OR THE
PROSECUTION, THAT THE DEFENDANT HAD PREVIOUSLY
ATTEMPTED SUICIDE IN SPITE OF THE FACT THAT
THE STATE'S PSYCHIATRIC EXPERT MENTIONED AND
TOOK INTO ACCOUNT, THESE ATTEMPTED SUICIDES
IN HIS REPORTS. (Raised Below).

8 A-2078-14T3
 PRO SE POINT IV

THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT DISALLOWED ANY TESTIMONY RELEVANT TO
DEFENDANT'S CLAIMS THAT HE WAS SEXUALLY ABUSED
AS A CHILD BY HIS FATHER. (Raised below).

PRO SE POINT V

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR
TRIAL WHEN THE TRIAL COURT ABUSED ITS
DISCRETION AND ALLOWED THE PROSECUTOR TO
PRESENT HYPOTHETICAL QUESTIONS AND COMMENTS
REFERENCING DEFENDANT BY NAME. (Partially
Raised Below).

PRO SE POINT VI

THE STATE WITHHELD CRITICAL IMPEACHMENT
EVIDENCE IN THE FORM OF A PLEA AGREEMENT WITH
DEFENDANT'S CO-DEFENDANT, ANDRE ABELLA, WHO
TESTIFIED AGAINST DEFENDANT.

PRO SE POINT VII

THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED
OF HEREIN AND THOSE ARTICULATED BY APPELLATE
COUNSEL WHEN VIEWED IN THEIR TOTALITY,
DEPRIVED DEFENDANT OF A FAIR TRIAL UNDER THE
DUE PROCESS CLAUSE OF THE UNITED STATES
CONSTITUTION, AMENDMENT XIV.

In addition, defendant raises in his supplemental brief the

following points contesting the outcome of the remand:

POINT I (POST-REMAND APPEAL)

THE TRIAL COURT ERRED IN REJECTING THE PLEA
AGREEMENT. DEFENDANT MUST BE RESENTENCED IN
ACCORDANCE WITH THE PLEA AGREEMENT.

A. The Trial Court Erred In Rejecting The
Plea Agreement On Remand Because Specific
Performance Of The Plea Agreement Is The

9 A-2078-14T3
 Appropriate Remedy Following The Wrongful
Rejection Of A Plea.

B. Even If Specific Performance Of The Plea
Agreement Were Not Required, The Trial Court
Was Required To Treat All Parties As They Were
Situated At The Time Of The Wrongful Plea
Rejection. The Court Could Not Consider The
Fact Of Defendant's Conviction Or Any Of The
Trial Evidence When Determining If The Plea
Agreement Was In The Interests Of Justice.

1. The remand court's reasons for
considering the trial evidence were
flawed.

2. Out-of-state cases further
demonstrate that the remand court
could not consider anything that was
not before the original judge who
rejected the plea agreement.

C. Alternatively, It Was An Abuse Of
Discretion To Reject This Plea Agreement.

II.

We begin our post-remand review by addressing the pivotal

issues concerning the fourth judge's nullification of defendant's

plea agreement with the State. As a predicate to that analysis,

we set forth key aspects of the record that emerged before and at

trial.

Defendant's Statement to the Police

On the night of his arrest, defendant gave a recorded

statement to police that would later be played for the jury at

trial. In his statement, defendant admitted he broke into the

10 A-2078-14T3
victim’s apartment because he needed money. Defendant said he was

friends with Abella, who told him that Abella's grandfather, the

victim, kept "crisp fifties" in his apartment. Defendant told

police he previously had broken into the apartment with Abella to

steal goods on two other occasions, once in May and once in June.

Defendant walked into the apartment on July 15 through the

unlocked front door because he wanted to steal money to buy drugs.

Defendant had incorrectly assumed the victim was not home, but

discovered that he was on the couch in front of the television,

apparently asleep. Defendant became concerned that the victim

might "start[] hurting [him]," and might have a gun. For his

"safety," defendant began looking for a weapon to protect himself.

Defendant saw a knife in the kitchen, but grabbed a pot instead,

because he did not want to murder the victim, and just wanted to

knock him out.

According to defendant, upon seeing him, the victim started

"bugging out" and "grabbing" him. The victim then put his hand

behind his back as if to pull something out. Defendant used the

pot he had taken from the kitchen to hit the victim on the head

"[p]robably two or four times . . . ." The victim was breathing

heavily and said, "stop, stop," after which defendant struck him

once more.

11 A-2078-14T3
 After the attack, defendant cleaned blood off of his sneakers

and placed a pillow on the floor to absorb the blood flowing from

the victim's head. Defendant started panicking because he was

concerned about being arrested for murder, and so he fled, taking

the victim's wallet and phone with him and leaving behind a watch

that had broken off of his wrist during the assault.

Defendant further admitted that, after leaving the apartment,

he went to New York, where he used the victim's credit card to buy

food and other goods.

Factual Basis for the Diminished Capacity Defense

On September 6, 2012, Dr. Eshkenazi conducted a psychological

evaluation of defendant while he was in custody. Dr. Eshkenazi's

findings would later form the basis of both defendant's guilty

plea to aggravated manslaughter and, after that plea was vacated,

his sole defense at trial.

Defendant told Dr. Eshkenazi that he could not be sure what

had happened the night that he burglarized the victim’s apartment

and attacked him, because he was under the influence of

Phencyclidine ("PCP"), a mind-altering drug he was regularly

taking to help him with the "voices" in his head. Defendant

related to Dr. Eshkenazi that on the night of the burglary he

remembered "breaking into a house through a window, sitting on a

toilet in the house and smoking [m]arijuana." He also recalled,

12 A-2078-14T3
as he had told police, that he believed the victim had a gun.

Defendant also told Dr. Eshkenazi that just before he struck the

victim with the pot he heard voices telling him "[d]o it, do

it . . . ."

In his report, Dr. Eshkenazi concluded that: "as a result

of [defendant's] psychiatric condition, that of Bipolar Disorder

and Attention Deficit Hyperactivity Disorder superimposed on drug

and alcohol abuse, his ability to formulate an intent was certainly

impaired to one degree or another."

The record contained no other psychological examination of

defendant at the time the court set aside his guilty plea to

aggravated manslaughter on March 8, 2013.

After the court set aside the plea, Dr. Simring, the State's

psychological expert, examined defendant on two dates in September

2013. In October 2013, Dr. Simring issued a report containing his

conclusions and findings, which negated defendant's claim of

diminished capacity.

Trial Testimony

At trial, in further support of his defense of diminished

capacity and intoxication, defendant presented Dr. Dmitri Primak

of the Bergen Regional Medical Center, who testified that defendant

had been admitted to the hospital on May 25, 2010, a few weeks

before the fatal assault. Dr. Primak testified that defendant had

13 A-2078-14T3
been discharged on June 4 with a diagnosis of PCP dependence,

attention deficit disorder, and anti-social traits.

Additionally, Dr. Eshkenazi testified, consistent with his

report, that defendant's drug intake "caused him to become almost

psychotic, superimposed on his condition of bipolar disorder,"

which Dr. Eshkenazi "found affected his ability to form motive or

intent at the time of the crime to one degree or another."

Defendant testified on his own behalf. As he had in his

police statement, defendant admitted that he: broke into the

victim's apartment without permission intending to steal money to

feed his PCP addiction; took a pot from the kitchen for protection

because he believed the victim had a gun; bludgeoned the victim

with the pot between two and four times; fled to New York with the

victim's wallet and phone; and, in New York, used the victim's

credit card to purchase food and other items. He also admitted

burglarizing the victim's apartment with Abella a month before the

attack. Defendant did not testify about the other prior burglary

on which he was also being tried.

Defendant's trial testimony differed from his recorded

statement to police in several respects. First, defendant

unequivocally told police that he remembered what happened the

night of the attack. But, at trial, defendant testified that he

"blacked out" around the time that he was striking the fatal blows.

14 A-2078-14T3
 Defendant also did not tell police he had taken drugs before

attacking the victim, while, at trial, he testified that, prior

to entering the apartment, he took PCP and marijuana, which

initially made him feel ecstatic, but later made him feel paranoid.

Also, defendant testified that, after entering the apartment, he

immediately went to the victim’s bathroom to smoke more marijuana

and PCP for twenty to twenty-five minutes, because he was feeling

"paranoid" and "wanted a . . . secure place," but defendant had

not told police either that he went to the bathroom upon entering

the apartment or that he ingested drugs while inside the apartment.

Dr. Simring, who the court qualified as an expert in forensic

psychiatry, testified on behalf of the State. Dr. Simring disputed

Dr. Eshkenazi's conclusions, particularly that defendant suffered

from bipolar disorder. Dr. Simring noted that when defendant was

released from Bergen Regional Medical Center a few weeks before

he attacked the victim, the hospital had not diagnosed him with

bipolar disorder or any other psychiatric illness other than

polysubstance abuse. Dr. Simring acknowledged that defendant was

provisionally diagnosed with A.D.H.D., but that there were no

signs of psychosis, depression, mania, or bipolar disorder.

Dr. Simring testified that, "at all phases of this incident,"

defendant "was able to act with purpose and knowledge . . . ." In

reaching this conclusion, Dr. Simring rejected defendant's

15 A-2078-14T3
testimony that he "blacked out," because defendant had an "unbroken

stream of memory" of certain parts of the event, including seeing

the victim, deciding to grab a pot, and striking the victim with

it. Dr. Simring also rejected defendant's testimony that he had

heard voices, because there was no "psychiatric evidence" or

"background evidence" that supported defendant's assertion.

Part of Dr. Simring's basis for discounting defendant's

version of events was that it differed greatly from the version

defendant had previously told police, which, Dr. Simring

testified, "comport[ed] very, very closely" to other evidence in

the case including the "physical evidence." Defense counsel

objected to that portion of Dr. Simring's testimony, but the

objection was overruled without discussion.

The Jury Charge

At the charge conference, counsel initially agreed that the

jury could consider diminished capacity or intoxication as a

defense to the charges of purposeful murder (count four), second

degree burglary (count five), robbery (count seven), felony murder

predicated on robbery (count eight), and the two possession of a

weapon charges (counts ten and eleven), but not the remaining

counts. Consistent with this consensus, the court's final jury

charge limited the jury's consideration of the defense to these

counts only. The jury was specifically directed not to consider

16 A-2078-14T3
either defense with respect to felony murder predicated on burglary

(count six).

Before deliberations began, however, defendant reversed

course and asked the judge to instruct the jury that it could

still consider diminished capacity and intoxication as defenses

to felony murder based on burglary under count six, even if it

found defendant guilty of the predicate second-degree burglary.

The court rejected defendant's request, finding that the adduced

facts did not support such an instruction.

III.

Defendant's threshold argument in this appeal is that he was

entitled to "specific performance" of his plea bargain, based on

our holding in Estrada I that the second judge had committed

material errors when she set aside the plea in March 2013.

Defendant argues that the fourth judge had an "independent

obligation" to reinstate the plea and issue a conforming sentence.

We disagree. Defendant's argument is inconsistent with the terms

of this court's remand and also with controlling precedent.

Defendant did not raise a specific performance argument

below. Rather, he conceded in the trial court that the fourth

judge had discretion to reassess the plea agreement to determine

whether it served the interests of justice. Therefore, the

decision to reassess the plea should be reviewed for plain error,

17 A-2078-14T3
pursuant to which any error should be disregarded unless "clearly

capable of producing an unjust result." State v. Ross, 218 N.J.

130, 143 (2014); R. 2:10-2.

"Plea bargaining has become firmly institutionalized in this

State as a legitimate, respectable and pragmatic tool in the

efficient and fair administration of criminal justice." State v.

Taylor, 80 N.J. 353, 360-61 (1979) (citations omitted). "It is

commonly known that the vast majority of all cases are

resolved through plea agreements with the State." State v. Munroe,

210 N.J. 429, 447-48 (2012).

Nevertheless, as this court has previously explained, "[p]lea

bargaining is not a right of a defendant or the prosecution. It

is an accommodation which the judicial system is free to institute

or reject." State v. Brimage, 271 N.J. Super. 369, 379 (App. Div.

1994). Accordingly, "[i]f at the time of sentencing the court

determines that the interests of justice would not be served by

effectuating the agreement . . . the court may vacate the

plea . . . ." R. 3:9-3(e).

"A plea agreement is . . . governed by contract-law concepts."

State v. Pennington, 154 N.J. 344, 362 (1998) (partially abrogated

on other grounds by State v. Pierce, 188 N.J. 155, 168 (2006))

(citations omitted). Specifically, "the parties agree that

defendant will plead guilty to certain offenses in exchange for

18 A-2078-14T3
the prosecution's recommendation to dismiss other charges and

suggest a certain sentence, all subject to the right of the court

to accept or reject the agreement in the interest of justice."

State v. Means, 191 N.J. 610, 622 (2007). Though the agreement

contractually binds both the defendant and the State to its terms,

the court is not a party to the agreement and cannot be so bound.

See Santobello v. New York, 404 U.S. 257, 262 (1971) ("There is,

of course, no absolute right to have a guilty plea accepted."

(citations omitted)); State v. Warren, 115 N.J. 433, 442 (1989)

(holding that the parties to a plea agreement "are not empowered

to negotiate a sentence that can have any binding effect" on the

court); State v. Kovack, 91 N.J. 476, 484 (1982) (holding that

neither the defendant nor the State "has an absolute right to have

the sentence conform to the specific terms of the agreement");

State v. Rosario, 391 N.J. Super. 1, 14-15 (App. Div. 2007) ("[T]he

plea judge can always reject a plea agreement, and generally

defendant has no right to require the judge to accept it."). Not

only is the court not bound by the plea, but the court's

conditional concurrence is an express term of the agreement. R.

3:9-3(c).

In support of his contrary position, defendant relies

principally on four New Jersey cases: Means, 191 N.J. at 622;

State v. Conway, 416 N.J. Super. 406 (App. Div. 2010); State v.

19 A-2078-14T3
Madan, 366 N.J. Super. 98 (App. Div. 2004); and State v. Salentre

("Salentre I"), 242 N.J. Super. 108 (App. Div. 1990). None of

these cases compels or persuades us to adopt defendant's position

on the specific performance issue.

Means reinstated an improperly vacated plea and remanded "for

further proceedings consistent with [its] opinion," but declined

to order the trial court to issue the negotiated sentence

automatically without first assessing the plea under Rule 3:9-

3(e). Means, 191 N.J. at 622. Indeed, the Court's rationale for

the remand was, in part, that "[b]y vacating the plea agreement

without first allowing notice to be given to the victims, the

trial court was not fairly able to determine whether to accept the

plea or reject the plea agreement in the interest of justice."

Ibid. Therefore, Means preserved the judicial role in evaluating

pleas, contrary to the "specific performance" remedy defendant now

asserts was necessary here.

As to the three other cases on which defendant relies, Conway,

416 N.J. Super. at 413; Madan, 366 N.J. Super. at 115; Salentre

I, 242 N.J. Super. at 113, defendant is correct that, in each

case, this court directly reinstated plea agreements that had

previously been improperly vacated. But these opinions did not

hold that automatically issuing the negotiated sentence from the

plea was the only acceptable remedy for an improperly rejected

20 A-2078-14T3
plea. Rather, this court exercised in those matters its

discretionary power of original jurisdiction. See N.J. Const.

art. VI, § 5, ¶ 3 ("[T]he Appellate Division of the Superior Court

may exercise such original jurisdiction as may be necessary to the

complete determination of any cause on review."); R. 2:10-5

(incorporating the constitutional provision with mostly identical

language).

Here, by contrast, we declined in September 2016 to invoke

our original jurisdiction to order a specific sentence. Estrada

I, slip op. at 10. Adhering to our direction to undertake a "fresh

assessment" of the plea, the trial court did not err in doing so.

Defendant also claims five opinions from other jurisdictions

support the remedy he seeks: United States v. Rea-Beltran, 457

F.3d 695 (7th Cir. 2006); United States v. Shepherd, 102 F.3d 558

(D.C. Cir. 1996); Lewandowski v. Makel, 949 F.2d 884 (6th Cir.

1991); United States v. Gaskins, 485 F.2d 1046 (D.C. Circ. 1973);

Williams v. State, 605 A.2d 103 (Md. 1992).

The courts in Rea-Beltran, Shepherd, and Williams did not

order specific performance of plea agreements, as defendant

claims. Rather, in each case, the reviewing court preserved the

lower court's ability to accept or reject the negotiated sentence.

21 A-2078-14T3
See Rea-Beltran, 457 F.3d at 703; Shepherd, 102 F.3d at 564;

Williams, 605 A.2d at 111.1

In sum, defendant is not entitled to specific performance of

the plea agreement. Instead, an independent assessment of the

plea under the governing "interests of justice" standard is

required.

IV.

We next address what evidence the fourth judge was permitted

on remand to consider when she was reassessing defendant's plea

agreement. Defendant argues that the judge erred by considering

evidence that emerged at trial as part of the overall analysis.

We disagree.

Rule 3:9-3 neither defines the term "the interests of

justice," nor lists the factors that should inform whether an

agreement is consistent with such interests. This gap has been

filled, however, by case law.

1
To be sure, the Gaskins and Lewandowski courts went further and
directly mandated reinstatement of the sentences that had been
negotiated in the underlying plea agreements, but those cases are
distinguishable from the present case. In Gaskins, the D.C.
Circuit remanded "with instructions to accept a plea of guilty,"
but, unlike here, the lower court's error concerned the factual
basis for the plea, not the justness of the negotiated sentence.
Gaskins, 485 F.2d at 1049. The Sixth Circuit ordered specific
performance of a plea in Lewandowski. But that case is also
distinguishable on its unique facts involving the defendant's
appellate attorney's constitutionally defective performance in
having the negotiated plea vacated. Lewandowski, 949 F.2d at 886.

22 A-2078-14T3
 Several principles have emerged from the few published

decisions involving the review of judicial nullification of a plea

agreement. First, we held in our September 2016 opinion, although

a sentencing judge may consider the victim's family's wishes in

assessing whether a plea serves the interests of justice, the

court must not forfeit its role as arbiter of the plea agreement.

Estrada I, slip op. at 16. See also Means, 191 N.J. at 622; Madan,

366 N.J. Super. at 114.

Second, a court cannot ignore the defendant's criminal record

as set forth in the presentence report. See State v. Daniels, 276

N.J. Super. 483, 488 (App. Div. 1994). If the defendant's criminal

record is extensive, it may require the court to find that an

overly lenient sentence does not serve the interests of justice.

See Ibid. But see Madan, 366 N.J. Super. at 111 (holding that the

defendant's criminal record "though not insubstantial, was

insufficient to serve as a rational underpinning to reject an

otherwise reasonable plea").

Third, a mistake of law or fact may warrant a finding of an

abuse of discretion. See id. at 110; Salentre I, 242 N.J. Super.

at 112-13.

Fourth, when assessing whether a plea agreement serves the

interests of justice, courts should "evaluate the facts, both

admitted and debated, apply those facts that can be established to

23 A-2078-14T3
the law, and then test the plea agreement against the facts, the

law, and the range of permissible sentences under the Code."

Madan, 366 N.J. Super. at 114 (emphasis added).

Fifth, courts should not favor one version of the facts "when

several versions are likely to be presented to the jury." Ibid.

"The possibility of a defendant being found guilty of a greater

offense . . . does not, in and of itself, provide a basis for

rejecting a plea." Id. at 110.

On remand in this case, the fourth judge considered the

reports and trial testimony of both the State and defense expert

witnesses, as well as the March 2013 presentence report that

predated the initial plea nullification. The fourth judge stated

that there was "no credible evidence in the record that the

defendant suffered from bipolar disorder, nor . . . that defendant

was suffering from diminished capacity at the time of the crime."

Relying on Dr. Simring's conclusions, the judge noted defendant's

hospitalization records contained no evidence of mental illness,

although there was evidence that defendant "suffered from

polysubstance abuse, and used a variety of drugs on a regular

basis." The judge observed that defendant recalled several

specific details about the events surrounding the murder, which

showed that his actions were knowing and purposeful. As the judge

concluded:

24 A-2078-14T3
 Taking into account the totality of the
circumstances, the manner and method of the
murder, the psychiatric evaluations, and the
ability of defendant to recall the most minute
detail on the night of the murder, the defense
of diminished capacity has no basis in the
record. Dr. Simring was clear in his opinion
that defendant had the ability to form the
requisite intent to commit the crimes.
Therefore, this court finds that it is not in
the interest of justice to accept the plea
agreement entered into by the parties . . . .

[(Emphasis added).]

Because the question of what evidence the trial court was

entitled to consider under Rule 3:9-3 is a strictly legal

determination, this court's review of that issue is de novo. See

State v. Handy, 206 N.J. 39, 45 (2011) ("[A]ppellate review of

legal determinations is plenary.").

Defendant argues that the trial court erred by looking beyond

the limited evidence available when the plea was first set aside

in 2013. Defendant further contends that all of the trial proofs

were "tainted by judicial error," since the trial itself was the

result of the errors made by the court when vacating the plea.

The State counters that the "interests of justice" standard

necessarily involves an assessment of the totality of the

circumstances and that "justice should not be blind" to trial

evidence.

25 A-2078-14T3
 Rule 3:9-3 expressly preserves the judicial power to accept

or reject a plea until the time of "sentencing." The original

foundation for the rule was a memorandum from the Administrative

Director of the Courts that refers to the judge evaluating the

plea as the "sentencing judge." Edward B. McConnell,

Administrative Memo Re: Criminal Pleas, 94 N.J.L.J. No. 1, Index

Page 1 (1971). See also Pressler & Verniero, Current N.J. Court

Rules, cmt.1 on R. 3:9-3 (2018) (explaining that Rule 3:9-3

"follows generally the guidelines set forth" in this cited

memorandum). The rule defers assessment of whether a plea serves

the interests of justice until sentencing specifically because

when "a plea is entered the judge ordinarily has before him only

the offense," and a "fuller picture of the offender does not emerge

until . . . the judge has had the benefit of a defendant's

presentence report." State v. Brockington, 140 N.J. Super. 422,

427 (App. Div. 1976).

As a general matter, courts have long preferred broadening,

rather than restricting, the information a judge may consider at

sentencing. For example, our court rules and case law provide

that a presentence investigation and report is mandatory. Rule

3:21-2(a); N.J.S.A. 2C:44-6(a); State v. Roth, 95 N.J. 334, 357

(1984). The presentence report "shall contain all presentence

material having any bearing whatever on the sentence," Rule 3:21-

26 A-2078-14T3
2, and may be "updated," as the court directs, prior to a

resentencing hearing that follows a remand. State v. Tavares,

286 N.J. Super. 610, 616 (App. Div. 1996). In the court's

discretion, it may further decide, before imposing sentence, to

order additional medical or psychological testing of a defendant.

N.J.S.A. 2C:44-6(c).

In imposing a sentence that arises from a negotiated plea,

the judge "may look to other evidence in the record," besides the

plea colloquy, and the court is required to "consider 'the whole

person,' and all the circumstances surrounding the commission of

the crime." State v. Sainz, 107 N.J. 283, 293 (1987) (citations

omitted). Those circumstances may include the court's prior

resolution of "evidentiary issues" and other "developments at

pretrial conferences," as well as guilty pleas or trials of co-

defendants. State v. Salentre ("Salentre II"), 275 N.J. Super.

410, 419, n.3 (App. Div. 1994). Combining these principles, the

"interests of justice" assessment of a plea agreement necessarily

"consider[s] . . . all the circumstances surrounding the commission

of the crime," whether those circumstances were articulated at a

plea proceeding or not. Sainz, 107 N.J. at 293.

Accordingly, when testing the plea agreement in Madan against

the record, we noted the trial facts were not significantly

different from and were "little more incriminating" than the facts

27 A-2078-14T3
available at the time of the plea. Madan, 366 N.J. Super. at 104.

This is an assessment that we obviously could not have made without

considering the trial facts. We found in Madan that the jury

instructions on aggravated manslaughter, ordinary manslaughter,

and self-defense were "warranted by the evidence" presented at

trial, id. at 110, "as the presentence report presaged . . . ."

Id. at 114.

In the present case, our September 2016 opinion directed the

trial court to reassess the plea and, if the plea was reinstated,

to "resentence defendant accordingly." Estrada I, slip op. at 16.

Adhering to the expansive approach to sentencing-related matters

in our State, the trial court was required to view defendant as

he stood "before the court on that day," State v. Randolph,

210 N.J. 330, 354 (2012), which necessarily included testing the

plea against the trial facts and the law. See Madan, 366 N.J.

Super. at 104.

Therefore, the fourth judge did not err on remand by

considering the evidence that emerged at trial in evaluating the

"interests of justice." Doing so was consistent both with

sentencing law generally and also with Madan.2

2
Defendant cites several cases from other jurisdictions in which
he claims courts did not consider trial evidence when reassessing
a plea agreement on remand. See United States v. Navedo, 516 F.2d
293 (2d Cir. 1975); State v. Darelli, 72 P.3d 1277 (Ariz. Ct. App.

28 A-2078-14T3
 V.

Having concluded the trial court properly considered the

evidence that emerged at trial as part of the "interests of

justice" assessment, we turn to consider defendant's argument that

the court misapplied its discretion by setting aside the plea.

The crux of the trial court's remand decision was its finding

that "the defense of diminished capacity ha[d] no basis in the

record." This pivotal finding was inaccurate. Both Dr. Eshkenazi

and defendant testified at trial that defendant's drug abuse and

psychological issues impaired his ability to act with purpose on

the night of the offense. Based on this testimony, the jury was

appropriately instructed to "consider and weigh all of the evidence

of the defendant's mental state, including evidence of bipolar

disorder superimposed on drug abuse, in determining whether

2003); In re Alvernaz, 2 Cal. 4th 924 (1992); People v. Allen, 815
N.E.2d 426 (Ill. 2004); People v. Curry, 687 N.E.2d 877 (Ill.
1997); State v. Hager, 630 N.W.2d 828 (Iowa 2001); State v. Sears,
208 W.Va. 700 (W.Va. 2000); State v. Lentowski, 212 Wis. 2d 849
(Ct. App. 1997). None of those cases are persuasive. Notably,
none of the procedural rules governing those cases feature the
"interests of justice" phrase. Compare R. 3:9-3(e) ("If at the
time of sentencing the court determines that the interests of
justice would not be served by effectuating the agreement . . .
the court may vacate the plea") with Fed. R. Crim. P. 11(c)(3)(A)
("[T]he court may accept the agreement, reject it, or defer a
decision until the court has reviewed the presentence report.").
See also Ariz. R. Crim. P. 17.4(d); Cal. Penal Code § 1018; Ill.
Sup. Ct. R. 402; Iowa R. Crim. P. 2.8; W. Va. R. Crim. P. 11(e)(4);
Wis. Stat. Ann. § 971.08. These cases do not provide meaningful
guidance, and we do not rely upon them.

29 A-2078-14T3
[defendant] acted with a requisite state of mind, forming elements

of the offense charged in the indictment." The jury was further

instructed, also appropriately, that if it determined that

defendant's diminished capacity from drug use prevented him from

acting purposely or knowingly, it could go on to consider whether

defendant was guilty of the lesser-included offense of aggravated

manslaughter, the same offense to which defendant had entered the

rejected guilty plea.

The fact that the jury was so instructed reflects that Dr.

Eshkenazi's and defendant's testimony presented at least a

rational basis for the diminished-capacity affirmative defense.

See State v. Daniels, 224 N.J. 168, 181 (2016) (holding that the

trial court should provide an affirmative defense charge requested

by the defense if "there is a rational basis to do so based on the

evidence"). Hence, the trial court erred on remand by holding

there was "no basis in the record" to support an aggravated

manslaughter conviction, particularly because that offense was the

subject of reasonable debate at trial.

Our opinion in Madan advised that in considering whether to

nullify a plea, courts should not favor one version of the facts

"when several versions are likely to be presented to the jury,"

Madan, 366 N.J. Super. at 114, and that the "possibility of . . .

being found guilty of a greater offense," does not provide a valid

30 A-2078-14T3
foundation on which to reject a plea. Id. at 110. This deference

to the factual underpinnings of a guilty plea is consistent with

a long line of precedent. See, e.g., Blackledge v. Allison, 431

U.S. 63, 74 (1977) ("Solemn declarations in open court carry a

strong presumption of verity."); State v. Gregory, 220 N.J. 413,

420 (2015) (At the plea stage, "the trial court is not making

determinations such as the credibility of witnesses . . ."); State

v. Slater, 198 N.J. 145, 156 (2009) ("[A] defendant's

representations and the trial court's findings during a plea

hearing create a 'formidable barrier'. . .") (citations omitted).

See also People v. Montalvo, 173 Cal. Rptr. 51, 54-55 (Ct. App.

1981) ("[A] trial judge, in determining whether to accept

or reject a proposed plea bargain, may hear conflicting versions

of the facts of the case . . . . [The judge's] evaluation of those

facts, in order to determine whether to accept a plea bargain,

does not involve resolution of factual conflict.").

Here, not only was the lesser-included offense of aggravated

manslaughter based on the affirmative defense of diminished

capacity "likely" to be put before the jury, it was actually

presented to the jury at trial, notably without any objection from

the State. The fact that defendant ultimately was convicted of

the greater offense of first-degree murder does not justify

rejecting his prior negotiated plea to the lesser-included offense

31 A-2078-14T3
of aggravated manslaughter, because the aggravated manslaughter

plea was at least rationally supported by the record. See Madan,

366 N.J. Super. at 115 ("An error-free trial following the

erroneous rejection of a plea agreement does not cure the pretrial

error."); Lafler v. Cooper, 566 U.S. 156, 166 ("Even if the trial

itself is free from constitutional flaw, the defendant who goes

to trial instead of taking a more favorable plea may be prejudiced

from either a conviction on more serious counts or the imposition

of a more severe sentence."). Where "debated" facts supported the

plea, the court should not have elevated one set of facts – the

facts supporting knowing and purposeful murder – above the other

– the contrary facts supporting aggravated manslaughter. See

Madan, 366 N.J. Super. at 110, 114.

Regardless of the ultimate merit before the jury of the

affirmative defense of diminished capacity, the negotiated plea

was premised on the pendency of that defense. At trial, both

sides agreed the defense had sufficient evidentiary support to

place the issue before the jury. The trial court's finding that

the defense had "no basis in the record" thus misconstrued the

record and renders the nullification of the plea unsound.

The prosecution faced a significant risk that a jury would

be persuaded by defendant's lay and expert proof of his alleged

diminished capacity. At the outset of the original sentencing

32 A-2078-14T3
proceeding in 2013, the State was prepared to eliminate that risk

and proceed with the plea bargain it had negotiated with defendant.

It was not until the court intervened and raised concerns about

the plea agreement being too lenient that the State

extemporaneously reversed its position. The reversal was not

initiated by the prosecution itself. In fact, the assistant

prosecutor at the 2013 sentencing initially represented to the

court that his office "did everything in [its] power to try to

find a just result[,] balancing the interests most particularly

of the family" and "great thought and care went into" the

negotiated plea. Although prosecutors are certainly free to change

their minds, the distinctive sequence of events bears upon the

issues before us.

For these reasons, we hold that the court erred by finding

that the negotiated plea agreement amending the charge of murder

to aggravated manslaughter did not serve the "interests of justice"

under Rule 3:9-3(e).

The question becomes what remedy at this point is appropriate.

We have considered remanding to have the plea nullification issue

assessed by the trial court a third time. We reject that option.

The protracted chronology of this litigation must come to an end.

In hindsight, we recognize that granting interlocutory review of

defendant's motion for leave to appeal might have obviated some

33 A-2078-14T3
of these consequences. On the other hand, we are also mindful

that this unusual case has presented many novel issues, the

analysis of which benefited from a full record and successive

briefing.

At this point, we elect to exercise our original jurisdiction

pursuant to Rule 2:10-5, and direct that the trial court enter an

order reinstating the original negotiated guilty plea with the

State and proceed to sentencing. In doing so, we fully recognize

the reprehensible nature of defendant's mortal acts. We also are

mindful of the emotional toll imposed on both the members of the

victim's family and defendant and his own relatives in the lengthy

proceedings that have already transpired. We also recognize the

State was satisfied in 2013 to enter into a plea agreement capping

defendant's sentence exposure at twenty-seven years. By no means

do we suggest an appropriate sentence. We simply conclude the

"interests of justice" warrant reinstatement of the original

negotiated agreement.

VI.

Although we need not reach the remaining issues posed on

appeal, we shall note, for sake of completeness, that we have duly

considered all of them. None of the points raised by defendant

and his counsel have sufficient merit to warrant discussion. R.

2:11-3(e)(2). Our only comment is that, although there is

34 A-2078-14T3
reasonable room to debate the issue, we are unpersuaded the trial

judge misapplied his considerable zone of discretion in allowing

Dr. Simring to comment on arguably ultimate issues within his

expert testimony. See N.J.R.E. 704; State v. Prall, 231 N.J. 567

(2018) (recognizing the deference owed to criminal trial judges

on evidentiary issues).

Hence, if, hypothetically, our decision to reinstate the

original plea agreement is overturned, there should be no need for

any further remand to address open issues.

The trial court's May 15, 2017 order nullifying the plea

agreement is therefore vacated. The matter is remanded for

sentencing under the terms of the original plea agreement. We do

not retain jurisdiction.

35 A-2078-14T3