                        NOT FOR PUBLICATION WITHOUT THE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for in our September 2016 unpublished opinion.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
