APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2302-18T4






                    Argued December 2, 2019 – Decided October 5, 2020

                    Before Judges Fasciale and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 18-01-0108.

                    Brian J. Neary argued the cause for appellant.

                    Ian C. Kennedy, Assistant Prosecutor, argued the cause
                    for respondent (Mark Mussella, Bergen County
                    Prosecutor, attorneys; Ian C. Kennedy, of counsel and
                    on the brief; Catherine A. Foddai, Legal Assistant, on
                    the brief).

          The opinion of the court was delivered by

      Defendant Sonny Nicholas appeals his conviction for second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1). After pleading guilty to the offense,

but prior to sentencing, defendant learned that the victim was under

investigation for possession of child pornography.        Defendant sought to

withdraw his plea, claiming he would not have agreed to plead guilty had he

known of the investigation. The trial judge denied the motion, finding the

evidence was not exculpatory. We affirm.

      We discern the following facts from the record. This matter arises from

an incident on October 31, 2017, in which defendant, accompanied by his son,

attacked the victim from behind with a baseball bat as the victim was walking

on a sidewalk in Fort Lee, New Jersey. Defendant struck the victim in the back

of his head, causing multiple skull fractures and a brain bleed. A nearby video

camera captured the incident and showed defendant fleeing on foot after the

attack. The baseball bat was later recovered nearby.

      A week later, detectives learned from the victim's mother that her

neighbor, Danny Eli, had been attacked earlier that month.            Eli has a

resemblance to defendant. Eli later identified defendant's son, Geno Anderson,

as his attacker. Eli indicated that Anderson assaulted him because Eli had been

romantically involved with his mother, defendant's ex-wife. Eli confirmed the

identity of Sonny Nicholas and Geno Anderson after being shown photographs

of the defendants.

       On January 11, 2018, both defendant and Anderson were indicted by a

Bergen County grand jury. The defendants were charged with: (1) first-degree

attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; (2) second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1); and (3) third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2). Defendant was charged with three additional counts:

(4) third-degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(d); (5) fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(d); and (6) third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2.

       On March 14, 2018, defendant pled guilty to second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1). This was pursuant to a plea agreement whereby

all other charges would be dismissed and the State would recommend a seven-

year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-


       In setting forth a factual basis for the plea, defendant admitted that on

October 31, 2017, while in Fort Lee, New Jersey, he saw someone that he

believed to be Danny Eli. Defendant stated he was angry with Eli for issues

involving his ex-wife. Defendant admitted he attacked the man he thought to be

Eli from behind with a baseball bat, striking him in the back of the head. He

went on to admit that he knew what he was doing was wrong and illegal, that he

took responsibility for the assault and issued an apology, and that he later found

out the man he attacked was not his intended victim. He stated he was not

forced, threatened, or coerced into pleading guilty. Defendant indicated he was

pleading guilty because he was guilty. Defendant confirmed he had the

opportunity to review the police reports of his assault and that his attorney had

answered all of his questions regarding the case. He stated he was satisfied with

the quality of legal representation he received. He agreed that he had initialed

each page of the plea agreement, signed the last page, and indicated he

understood each question on the form.

      On March 14, 2018, defendant's son, Anderson, pled guilty pursuant to a

separate plea agreement. In exchange for his guilty plea, the State would

recommend five years of non-custodial probation at sentencing. Anderson and

Nicholas plea agreements were contingent upon one another, in that neither

could take advantage of the agreement unless both did.

      Unbeknownst to defendant, prior to the attack and while plea negotiations

were ongoing, the victim had been under investigation for possession of child

pornography. On June 22, 2018, after both pleas had been accepted, the victim

was charged with second-degree possession of child pornography and second-

degree distribution of child pornography.

      On August 23, 2018, defendant filed a notice of motion to withdraw his

guilty plea. Defendant argued the State had failed to disclose that the victim

was under investigation for child pornography before defendant agreed to plead

guilty. Defendant alleged the plea was not made voluntarily, knowingly, and

intelligently because the State withheld exculpatory evidence. The defendant

claimed that, but for the state's non-disclosure, defendant would not have struck

the deal that he did. Defendant alleged that he has a fundamental right to be

informed of any evidence tending to show the State's influence over a particular

witness, and that because the State had failed to disclose such evidence, he

should be permitted to withdraw his guilty plea.

      The State countered that the victim could not provide any material

information regarding his attack because he never saw the perpetrator. One

moment he was standing in a parking lot, and the next thing he knew he was in

a hospital. Thus, he could not identify his attacker or provide any information

that was material to defendant's guilt or innocence. Accordingly, the State

denied that the investigation was exculpatory for purposes of discovery.

      In a written opinion filed on December 14, 2018, the court denied

defendant's motion to withdraw his guilty plea.      The court determined that

defendant had failed to satisfy any prong of the four-part test used to decide

whether to vacate a guilty plea set forth by State v. Slater, 

198 N.J. 145


The court also found that defendant had failed to demonstrate that the withheld

evidence was favorable to defendant or material to his defense.

      On January 4, 2019, defendant was sentenced in accordance with his plea

agreement to seven years imprisonment subject to NERA, followed by three

years of parole supervision. This appeal ensued.

      On appeal, defendant raises the following arguments:

      POINT I

          A.   The State withheld evidence in violation of Rule 3:13-3 and
               Brady v. Maryland.
          B.   Mr. Nicholas' plea must be withdrawn because it was not
               made voluntarily, knowingly, and intelligently.
          C.   The prosecutor failed to adhere to their ethical obligations and
               therefore Mr. Nicholas' appeal must be granted.

      POINT II


      Defendant first argues the State's failure to disclose the ongoing

investigation of the victim violated its duty under Rule 3:13-3 and Brady v.


373 U.S. 83

(1963). We reject this argument and agree with the trial

court's conclusion that evidence of the investigation was neither favorable to

defendant nor material to the defense.

      We review a court's decision on motions to withdraw a guilty plea for "an

abuse of discretion." State v. O'Donnell, 435 N.J. Super 351, 372 (App. Div.

2014). The "denial of defendant's request to withdraw his guilty plea will be

reversed on appeal only if . . . the lower court's decision [was] clearly

erroneous." State v. Lipa, 

219 N.J. 323

, 332 (App. Div. 2014) (quoting State v.


161 N.J. 416

, 444 (1999)). "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, warrant a grant of that relief." O'Donnell, 435

N.J. Super at 372 (quoting State v. Mustaro, 

411 N.J. Super. 91

, 99 (App. Div.


      A Brady violation occurs where the prosecution withholds material

evidence favorable to the defendant. See Brady, 

373 U.S. 83

(1963). "In order

to establish a Brady violation[,] the defense must demonstrate that (1) the

prosecution failed to disclose the evidence; 1 (2) the evidence was of a favorable

character for the defense; and (3) the evidence was material." State v. Carter,

85 N.J. 300

, 311 (1981).

      Defendant failed to demonstrate that the evidence was favorable to him or

material to his defense. Because the victim could not shed light on the identity

of his attacker, it would not weigh at all in favor of or against defendant's

involvement.     Moreover, evidence is material "if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different." State v. Parsons, 

341 N.J. Super. 448


455 (App. Div. 2001) (quoting United States v. Bagley, 

473 U.S. 667

, 682

(1985)). "A 'reasonable probability' is one that is 'sufficient to undermine

confidence in the outcome' of the trial."

Ibid. Evidence of the

investigation could not have created a reasonable

probability that the result of defendant's prosecution would have been different.

At trial, the victim would not have been able to identify defendant because he

  We need not wrestle with the issue of whether investigation of a witness prior
to arrest is discoverable in a criminal case. Cf. North Jersey Media Group Inc.
v. Bergen County Prosecutor's Office, 

447 N.J. Super. 182

, 203 (App. Div.
2016) (recognizing ongoing investigation privilege in media access context).
Our conclusion that the material was not exculpatory obviates any need to wade
into that quagmire under these facts.
never saw him. Moreover, defendant and the victim were strangers; thus, the

victim would have nothing to offer on the issue of motive. The State would have

relied on the victim only to testify as to the extent of his injuries, a subject that

is irrelevant to defendant's guilt or innocence.

      Independent of any testimony by the victim, the State possessed abundant

evidence of defendant's guilt. Eli, the victim's neighbor, would have supplied

defendant's motive in anticipated testimony that he had been involved with

defendant's ex-wife, and for that reason he had been attacked by Anderson just

a month earlier. In addition, video footage placed defendant in Fort Lee on the

date and at the time of the attack; video footage placed defendant in the area the

baseball bat was later found; and video footage showed defendant fleeing the

area in a vehicle. The State's investigation of the victim for offenses that had

no connection to defendant's crimes would not have diminished the persuasive

value of any piece of evidence the State was likely to rely upon.

      Based on the foregoing, we agree with the trial judge that the State did not

violate Rule 3:13-3 or Brady.2

   For similar reasons, we also reject that reversal is warranted because the
prosecutor failed to adhere to ABA Model Rule 3.8(d) and ABA Standard for
Prosecution Function 3-3.11(1)(a). Those rules, in relevant part, require
disclosure of evidence that tends to negate the guilt of the accused or mitigates

      We also reject defendant's argument that the trial judge misapplied the test

set forth in 

Slater, 198 N.J. at 150

.       In Slater, this state's Supreme Court

identified four factors that trial courts should consider in evaluating a

defendant's motion to withdraw his or her guilty plea:          "(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.

"[T]he burden rests on the

defendant . . . to present some plausible basis for his request, and his good faith

in asserting a defense on the merits."

Id. at 156.

When balancing the Slater

factors, none are mandatory and the fact that a single factor is absent does not

automatically disqualify or dictate relief.

Id. at 162.

      In this case, we agree with the trial judge that defendant failed to show a

colorable claim of innocence. While courts are not to conduct "mini-trials" on

defendant's claims of innocence, they must determine whether the defendan t's

claims "rest[] on, plausible facts rather than a blanket, bald statement."

Id. at 159.

In this case, when the evidence of the investigation, which has no bearing

the offense. Because the evidence did not negate defendant's guilt or mitigate
the offense, there was no ethical lapse in the non-disclosure.
on defendant's guilt or innocence, is weighed against the body of evidence the

prosecution had collected at the time of the plea, we find no colorable claim of

innocence. In addition to the lengthy plea colloquy the trial court relied on in

its determination, the prosecution had collected substantial evidence against

defendant. The motive and jealously evidence, video footage of the attack and

escape, and positive identification by Eli, culminate in the conclusion that

defendant has failed to offer proof on the first Slater factor.

      With respect to factor two, defendant argues evidence of the criminal

investigation is exculpatory evidence that would have enabled him to impeach

the State's witness. "A defendant will likely satisfy [the second] factor if he can

make a 'plausible showing of a valid defense against the charges' and credibly

explain why an otherwise legitimate defense was overlooked during the plea

colloquy." State v. Munroe, 

210 N.J. 429

, 443 (2012) (citing 

Slater, 198 N.J. at 159-60

).    Because the evidence is not exculpatory, however, we reject

defendant's argument. 3

      The third Slater factor, the existence of a plea bargain, is met. Defendant

negotiated a term of seven years subject to NERA on a second-degree charge.

  Tellingly, defendant has failed to articulate how the evidence could be used to
impeach the victim's testimony concerning his injuries.
The plea agreement was favorable to both defendant and his son, who received

a noncustodial sentence as part of the overall plea bargain. If defendant had

gone to trial, he would have faced five additional charges, including first-degree

attempted murder, for which he faced a thirty-year prison term subject to NERA.

His son's plea bargain would also have been rescinded, forcing the son to plea

on less favorable terms or go to trial. Under these circumstances, it seems highly

unlikely that defendant would have chosen to go to trial.

       Because defendant has failed to offer proof of the first three factors, we

need not consider whether the State would be prejudiced. 

Slater, 198 N.J. at 162


       To the extent we have not specifically addressed any of defendant's

remaining arguments, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).