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Plea agreements must be upheld during sentencing, and may only be disregarded by the judge upon the determination that "the interests of justice would not be served by effectuating the agreement," the New Jersey Appellate Division made crystal clear on Thursday.

The appeals court overturned a lower court's vacatur of a plea agreement, saying that the judge must meet the high bar of determining that "the interests of justice would not be served by effectuating the agreement" in order to disregard a plea agreement.

On March 18, 2021, a grand jury sitting in Essex County returned indictments against Luis Bastidas for: first-degree aggravated sexual assault, four counts of third-degree endangering the welfare of a child, and four counts of second-degree sexual assault.

Subsequently, Bastidas negotiated a plea agreement with the prosecutors.

On July 14, 2022, he appeared in court to enter a plea. He was sworn and warned of the ramifications if he were to commit "perjury" or "false swear." He then admitted to where he lived at the time of the alleged offenses and that he touched a minor female's breast with his hand for sexual gratification. The prosecutors were satisfied with the allocution and indicated there's no reason not to accept this plea.

After thorough questioning, the trial court stated: I'm satisfied that you're guilty. I'm satisfied that the defendant, Luis Bastidas, has, after advice of competent counsel with whom defendant is satisfied, entered a plea of guilty freely and voluntarily, and that defendant admitted the offense of endangering the welfare of a child. The defendant has been very alert and comprehending throughout this entire proceeding. Defendant is not under the influence of any medications, drugs or alcohol.

Prior to sentencing, the trial court required Bastidas to submit to a psychological examination (ADTC evaluation) and to cooperate with the Probation Department to complete his Adult Presentence Report (APR).

On January 27, 2023, the parties returned to court for sentencing. A different judge heard the matter and immediately advised the attorneys that he was was rejecting the plea. The judge explained that: (1) "in the ADTC evaluation, the defendant denies responsibility for the present offense"; (2) defendant "had the effrontery to actually say that the victim, who alleged that she was assaulted between the ages of [six] and [eleven], made sexual advances to him"; (3) "he also indicated that her mother, who also lived with him when she was young, made sexual advances toward him, as well"; (4) "he stated during his ADTC evaluation and interview that it was the child who came in and asked him to kiss her on her chest"; (5) defendant "directly controverts the admissions in his plea agreement . . . is not taking responsibility"; (6) defendant "said he learned in jail that police charge you with things you did not do"; (7) defendant "alleges the victim made up the allegations"; (8) defendant "denies committing any offense"; (9) defendant stated "I pled guilty because I thought if I pled not guilty, my whole family would have to be in court. It would be a lot for everybody to miss work"; and (10) "I don't have an attorney speak for me. I never got an attorney." The trial court observed that this last statement was "clearly inaccurate as he was represented."

The trial court concluded by stating that "this court does not accept pleas of guilty from individuals who proclaim their innocence simply because they receive a favorable plea agreement or simply wish to be done with their court case." Further, the trial court indicated that it would "not sentence someone who proclaims their innocence unless and until they are found guilty by a jury of their peers."

Defense counsel acknowledged that "what happened at the plea colloquy was admittedly contraindicated in his ADTC evaluation," however, he argued that "the interests of justice do not call for the plea agreement to be vacated today." 

The trial court denied the request, without explanation, to refrain from vacating the plea that day.

In a written ruling, Appellate Division Judges Enright and Paganelli have now reversed this vacatur.

Rule 3:9-2 provides that, "the Court, in its discretion, may refuse to accept a plea agreement if at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea."

It is for the trial court to consider all relevant circumstances in determining whether "the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel." The trial court's discretion is wide when performing this function.

Nonetheless, we are concerned with the sentencing judge's failure to either have defendant sworn at the sentencing hearing, to allow for an on-the-record assessment of the circumstances surrounding the ADTC evaluation, or to allow for a brief adjournment for defense counsel and defendant to confer and consult with others, if necessary, to address the concerns raised by the judge.

In the unique circumstances presented here, including: (1) the sworn proceeding and findings of the first trial court; (2) there being no apparent need for an immediate vacatur of the plea; (3) the parties only being provided with twenty minutes notice that the trial court was vacating the plea; (4) defendant's revelation, during the ADTC evaluation, that he takes medication to reduce his anxiety and his "current mood [w]as 'very disoriented'"; (5) the ADTC evaluator's recognition that "[e]valuations conducted through an interpreter are problematic in that certain aspects of functioning cannot be assessed and inferences are difficult to make from the material elicited"; (6) defendant's indication that he did not have an attorney, despite being represented by counsel; (7) defendant's contradictory statements, in the ADTC, wherein he apparently indicated both that "I said to my attorney and everyone else" and "I don't have an attorney to speak for me"; and (8) the APR where defendant "requested to rely on the factual basis statement provided to the court at the time of the plea agreement"; we find that the sentencing judge erred in his exercise of discretion. 

Therefore, we vacate the vacatur and remand the matter for further proceedings consistent with this opinion. Thereafter, the trial court can exercise its authority to determine whether the interests of justice will be served by effectuating the plea agreement.

On remand, the trial court will retain jurisdiction to accept or reject the plea, however, the court can only reject a plea if such a decision is supported by the record that "the interests of justice would not be served by effectuating the agreement."

Bastidas was represented by Assistant Deputy Public Defender Margaret McLane.

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