                                 NOT FOR PUBLICATION WITHOUT THE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-4780-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JEFFREY W. TROXELL,

     Defendant-Appellant.
_____________________________

                   Submitted March 4, 2019 – Decided July 3, 2019

                   Before Judges Sumners and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 16-10-
                   1696.

                   Law Office of Howard S. Teitelbaum, LLC, attorney
                   for appellant (David A. Parinello, of counsel and on the
                   brief).

                   Andrew C. Carey, Middlesex County Prosecutor,
                   attorney for respondent (Nancy Anne Hulett, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
        In this appeal we are asked to determine whether defendant Jeffrey W.

Troxell should have been granted his motion to withdraw his guilty plea for

eluding and aggravated assault against a police officer during a high-speed chase

prior to sentencing because of misconduct charges – falsifying reports and

assaulting an arrestee – filed against the officer for an incident not involving

defendant that occurred after the defendant's offenses.

        Defendant argues:

              POINT I

              THE TRIAL COURT IMPROPERLY APPLIED THE
              TAYLOR1 AND SLATER2 STANDARDS IN
              DENYING THE MOTION.

              POINT II

              THE TRIAL COURT IMPROPERLY CONSIDERED
              EVIDENCE IN THIS MOTION HEARING BY
              VIEWING A VIDEO IN CAMERA AND NOT
              CONDUCTING AN EVIDENTIARY HEARING.

              POINT III

              THE TRIAL COURT IMPROPERLY CONSIDERED
              EVIDENCE IN THIS MOTION HEARING BY
              USING INFORMATION ALLEGEDLY PROVIDED
              IN THE PRESENTENCE INVESTIGATION TO
              RENDER ITS DECISION.

1
    State v. Taylor, 80 N.J. 353, 365-66 (1979).
2
    State v. Slater, 198 N.J. 145, 157-58 (2009).
                                                                         A-4780-17T3
                                         2
      We conclude the motion judge did not abuse his discretion in denying

defendant's motion and did not commit plain error in viewing a video of

defendant eluding the police and driving his car into the officer. Nor was there

prejudicial error in the judge's consideration of the presentence report prior to

denying the motion to withdraw the guilty plea. Accordingly, we affirm.

                                        I

      Defendant was driving his vehicle in New Brunswick when he disregarded

an order by the Rutgers University Police to stop and pull over. Reaching a

speed of 85 miles per hour, he drove down Route 18 in the wrong direction and

onto the sidewalk bordering the highway. Like a scene out of an action movie,

defendant continued his high-speed elusion through several municipalities,

ending up in a Piscataway cemetery in the midst of a burial ceremony. After

driving recklessly over the cemetery's grass and hitting tombstones, defendant's

vehicle came to a stop.      When Piscataway Police Detective Todd Ritter

approached the passenger's side with his service gun pointed down and moved

towards the driver's side window, defendant accelerated the vehicle, hitting and

injuring Det. Ritter. Det. Ritter fired his gun to deter defendant's actions.

Defendant was apprehended and placed under arrest. A limousine driver at the

cemetery captured the incident on video.


                                                                         A-4780-17T3
                                       3
      Defendant was indicted on two counts of second-degree eluding, N.J.S.A.

2C:29-2(b), first-degree attempted murder of Det. Ritter, N.J.S.A. 2C:5-1(a)(1),

2C:11-3(a)(1), second-degree aggravated assault against Det. Ritter, N.J.S.A.

2C:12-1(b)(1), and two counts of third-degree aggravated assault against Det.

Ritter, N.J.S.A. 2C:12-1(b)(2), -1(b)(5)(a).

      A week before trial, defendant reached a plea agreement with the State in

which he pled guilty to one count of eluding and second-degree aggravated

assault against Det. Ritter.

      In his plea colloquy, defendant admitted to eluding the Rutgers University

Police, driving in the wrong direction on Route 18 and into a Piscataway

cemetery. He further admitted that after stopping his vehicle, he drove the

vehicle forward when Det. Ritter tried to detain him and drove into him, causing

injury. The State agreed to drop the remaining charges against defendant and to

recommend that he receive an aggregate prison sentence of seven years subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2.

      About a week prior to defendant's sentencing, the State notified defense

counsel that Det. Ritter was indicted for simple assault, falsification of records,

and tampering with government records, for an incident that occurred almost

two years after defendant's offenses. In response, defendant moved to withdraw


                                                                           A-4780-17T3
                                        4
his guilty plea claiming that the charges against Det. Ritter showed "concerns

about [his] character" and lack of veracity.

      At oral argument, defense counsel acknowledged that defendant did not

have a colorable claim of innocence with respect to eluding but argued he did as

to the aggravated assault charge. He asserted that the video of the incident

showed defendant's vehicle was at a complete stop when Det. Ritter "comes

around the front [of the vehicle] and fires a shot, and the [vehicle] goes forward

and clips [Det.] Ritter."

      The State disagreed, explaining that there was no colorable claim of

innocence. The State, which had provided a copy of the video to the judge with

its opposition to the motion, took a different stance on the video, arguing it

showed that "defendant accelerated [his vehicle], striking [Det.] Ritter, who

fired at him."

      After momentarily retreating to chambers to look "at the video again," the

judge returned to the courtroom and rendered his oral decision denying the

motion. The judge stated neither the video nor the motion papers established a

colorable claim of innocence. In summarizing the video, the judge remarked:

                  The video is pretty clear . . . and it's a very good
            video, though sideways, which makes it difficult to
            look at. [Defendant] is accelerating and driving at a


                                                                          A-4780-17T3
                                        5
             high rate of speed through the cemetery and, at some
             point, for whatever reason, comes to stop, okay?
                    But, while he stopped, the officer with the - - with
             the beige shirt - - who I'm going to assume is [Det.]
             Ritter, since I've never met him - - comes along the
             passenger side, has his weapon in hand, but pointed
             down. And, as soon as he passes almost the driver's
             side window, that's when the white car starts to
             accelerate.
                    And, the officer with the beige shirt tries to get in
             front of the vehicle to either get the vehicle to stop by
             him being there - - but he certainly pulls out his gun and
             starts shooting at the vehicle while the vehicle is
             already moving.

Thus, the judge rejected defendant's argument of self-defense that he drove away

and hit Det. Ritter to avoid his gunshot. In turn, the judge found that Slater was

not satisfied.

      After the judge decided to schedule sentencing three weeks later, he

commented that in denying the motion he also considered the pre-sentence

report regarding defendant's statement that he was driving under the influence

of OxyContin, Xanax, and marijuana when he committed the offenses, and that

his behavior was due to a head injury he sustained in the past.

                                          I

      We first address defendant's argument in Point I that the trial judge

misapplied Taylor and the Slater factors in denying his motion to withdraw his

guilty plea. In particular, defendant argues he has a colorable claim of innocence

                                                                            A-4780-17T3
                                          6
to the aggravated assault plea because Det. Ritter's statement concerning the

incident should be viewed differently, given that the detective's veracity was

questionable as he was charged with falsifying reports and assaulting an arrestee

in a subsequent unrelated matter.

      To grant a defendant's request to withdraw a defendant's guilty plea, the

trial court must consider and balance the four-factor Slater test, which provides,

            (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.

            [Slater, 198 N.J. at 157-58.]

      The standard to withdraw a guilty plea prior to sentencing is in the interest

of justice. State v. Howard, 110 N.J. 113, 123-24 (1988) (citation omitted).

"'[T]he burden rests on the defendant, in the first instance, to present some

plausible basis for his request, and his good faith in asserting a defense on the

merits.'" Slater, 198 N.J. at 156 (quoting State v. Smullen, 118 N.J. 408, 416

(1990)). "Generally, representations made by a defendant at plea hearings

concerning the voluntariness of the decision to plead, as well as any findings

made by the trial court when accepting the plea, constitute a 'formidable barrier'

which defendant must overcome before he will be allowed to withdraw his plea."

                                                                           A-4780-17T3
                                        7
State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431

U.S. 63, 74 (1977)).     Accordingly, "courts are to exercise their discretion

liberally to allow plea withdrawals[]" and "[i]n a close case, the 'scales should

usually tip in favor of defendant.'" State v. Munroe, 210 N.J. 429, 441 (2012)

(quoting Slater, 198 N.J. at 156); Taylor, 80 N.J. at 365. Nevertheless, the

Munroe Court explained that "[l]iberality in exercising discretion does not mean

an abdication of all discretion, and, accordingly, any plea-withdrawal motion

requires a fact-specific analysis[.]"    Id. at 441-42 (citations and internal

quotation marks omitted). Thus, we will reverse the trial court's determination

of whether to allow a defendant to withdraw a guilty plea "only if there was an

abuse of discretion which renders the lower court's decision clearly erroneous."

Simon, 161 N.J. at 444 (citing Smullen, 118 N.J. at 416).

      Guided by these principles, we cannot conclude the trial judge abused his

discretion in denying defendant's motion.       Defendant failed to establish a

colorable claim of innocence that he did not drive his vehicle into Det. Ritter in

a further attempt to avoid apprehension. His counsel's reliance on the video is

misplaced. As the judge detailed, the video supports the State's position that

defendant drove into Det. Ritter not in self-defense, but to continue eluding law

enforcement. In evaluating a claim of innocence, courts "may look to evidence


                                                                          A-4780-17T3
                                        8
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 (quoting Smullen, 118 N.J. at 418). As part of our review of the record on

appeal, we have seen the video. Nothing in the video materially contradicts the

judge's findings. See State v. S.S., 229 N.J. 360, 374-81 (2017) (clarifying the

limited scope of appellate review of factual findings based on video evidence).

The video does not warrant a grant of withdrawal of defendant's guilty plea. See

State v. O'Donnell, 435 N.J. Super. 351, 369 (App. Div. 2014) (denying a motion

to withdraw a guilty 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.") (quoting State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div.

2009)). From our perspective, this is not a close call.

      While there is no indication in the record that withdrawal of the

defendant's guilty plea would create unfair prejudice to the State or unfair

advantage to defendant under Slater factor four, factors two and three do not

weigh in defendant's favor. Under factor two, defendant has not shown that he

has adequate reasons for withdrawal of his plea. He relied on Det. Ritter's

subsequent indictment. However, he makes no showing that the charges against

Det. Ritter would have been admissible to undermine the detective's credibility.


                                                                           A-4780-17T3
                                        9
He also relied on the video, which, as noted, supports the State's position that

he intentionally drove his vehicle into Det. Ritter and caused him injury. As for

factor three, defendant bargained for the plea – which resulted in other charges

being dismissed – fully aware of what the video revealed.

                                       II

      In Point II, defendant argues that the judge should not have viewed the

video in chambers because it was: hearsay under N.J.R.E. 802, not authenticated

under N.J.R.E. 901, and not relevant under N.J.R.E. 401. He also contends the

judge should not have viewed the video outside the presence of counsel because

it denied defendant his due process rights.

      Initially, we are compelled to point out that it was not until defendant

argued that the video supported his self-defense claim that the judge was

prompted to leave the courtroom to view the video. Thus, if it was an error for

the judge to view the video, the doctrine of invited error would bar defendant's

argument. Under invited error, "trial errors that 'were induced, encouraged or

acquiesced in or consented to by defense counsel ordinarily are not a basis for

reversal on appeal . . . .'" State v. Bailey, 231 N.J. 474, 490 (2018) (quoting

State v. A.R., 213 N.J. 542, 561 (2013)). Our Supreme Court declared, "[t]o

justify reversal on the grounds of an invited error, a defendant must show that


                                                                         A-4780-17T3
                                      10
the error was so egregious as to 'cut mortally into his substantive rights . . . .'"

State v. Ramseur, 106 N.J. 123, 282 (1987) (quoting State v. Harper, 128 N.J.

Super. 270, 277 (App. Div. 1974)). Defendant did not do so.

      Prior to argument, the State presented the video to the judge with its

opposition to the motion to show that there was no factual basis to support

defendant's request to withdraw his guilty plea. In fact, the video confirmed the

factual basis defendant provided at his plea colloquy. Thus, we do not agree

with defendant that his substantive rights were denied.

      Further, at no point prior to or at the motion's argument, did defendant

object to the judge viewing the video. When there is a failure to object, the

defendant must establish the conduct constitutes plain error under Rule 2:10-2.

State v. Feal, 194 N.J. 293, 312 (2008). Plain error to reverse a conviction is

warranted when the error is "of such a nature as to have been clearly capable of

producing an unjust result[.]" R. 2:10-2.

      For the same reasons noted above, we conclude there was no unjust result

in the judge's viewing the video or viewing it in chambers. The judge mentioned

that he had viewed the video when the State submitted its opposition to the

motion, and he wanted to view it again based on defendant's argument that it

supported his claim that he was innocent of aggravated assault for driving into


                                                                            A-4780-17T3
                                        11
Det. Ritter.   Significantly, while defendant commented on how the video

supported his innocence, he made no request to the judge to show the video in

open court in support of his motion.

                                        III

      Finally, defendant contends that the judge should not have considered his

comments in his presentence report in deciding the motion to withdraw his guilty

plea. The purpose of the presentence report is for sentencing. See N.J.S.A.

2C:44-6. Thus, the judge should not have considered it when deciding the

motion. Nevertheless, the error was harmless as the defendant's statement to the

probation officer, who prepared the report, was no different than the factual

basis that defendant provided at his plea colloquy. See R. 2:10-2 ("Any error or

omission shall be disregarded by the appellate court unless it is of such a nature

as to have been clearly capable of producing an unjust result . . . .").

      Affirmed.




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                                        12
