                                NOT FOR PUBLICATION WITHOUT THE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-5249-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

OTIS L. WILLIAMS,

          Defendant-Appellant.


                    Submitted October 3, 2018 – Decided November 26, 2018

                    Before Judges Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment Nos. 15-10-2271
                    and 16-10-2966.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Daniel S. Rockoff, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Theodore Stephens II, Acting Essex County Prosecutor,
                    attorney for respondent (Tiffany M. Russo, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
     Defendant Otis L. Williams appeals from his conviction for first-degree

aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), following his guilty plea,

arguing:

           POINT I

           THE COURT ERRED BY DENYING THE MOTION
           TO DISMISS THE SUPERSEDING INDICTMENT.

                1.  BECAUSE    THE     ADDITIONAL
           EVIDENCE DISCOVERED BY THE PROSECUTOR
           BETWEEN     THE   TWO   GRAND     JURY
           PRESENTATIONS WAS NOT PROBATIVE OF
           WHETHER WILLIAMS HAD A MORE CULPABLE
           MENTAL     STATE,   THE   SUPERSEDING
           INDICTMENT        SHOWS        ACTUAL
           VINDICTIVENESS.

               2.  AFTER THE FIRST GRAND JURY
           FOUND PROBABLE CAUSE TO BELIEVE THAT
           WILLIAMS ACTED WITH A MERELY RECKLESS
           MENTAL STATE, IT VIOLATED THE GRAND
           JURY'S    ESSENTIAL     DECISION-MAKING
           FUNCTION, AS WELL AS WILLIAMS'S RIGHT TO
           DUE PROCESS, FOR THE PROSECUTOR TO GIVE
           THE SECOND GRAND JURY A PURPOSEFUL-
           INTENT-OR-NOTHING INSTRUCTION.

                 3.    PROPOSED REMEDIES.

           POINT II

           ALTERNATIVELY, THIS COURT SHOULD
           REMAND FOR A NEW PLEA COLLOQUY,
           BECAUSE THE DEFENDANT'S FACTUAL BASIS
           DID NOT ESTABLISH ANY CULPABLE MENTAL

                                                                    A-5249-16T4
                                    2
             STATE,   LET     ALONE      THE     EXTREME
             INDIFFERENCE TO HUMAN LIFE REQUIRED TO
             SUSTAIN AN N.J.S.A. 2C:11-4(A)(1) CONVICTION
             FOR AGGRAVATED MANSLAUGHTER.

             POINT III

             ALTERNATIVELY, THIS COURT SHOULD
             REMAND FOR A NEW HEARING ON THE
             MOTION TO WITHDRAW THE PLEA, BECAUSE
             WILLIAMS WAS DENIED HIS RIGHT TO PLEAD
             HIS OWN CAUSE.

We are unpersuaded by any of these arguments and affirm.

      After the State presented charges of first-degree murder, N.J.S.A. 2C:11-

3(a) – and lesser included offenses of first-degree aggravated manslaughter and

second-degree manslaughter, N.J.S.A. 2C:11-4(b) – in connection with the

asphyxiation death of Le'lia Whatley, the grand jury returned an indictment

charging defendant with a sole count of second-degree manslaughter. Over

fifteen months later a New Jersey State Police forensic laboratory report1

identified defendant as the major DNA profile that was found on the victim's

vaginal and cervical area and the DNA source of dry secretions found around

her neck; his DNA also matched the profile taken from a watch found at the


1
   The date of the New Jersey State Police forensic laboratory report is taken
from the State's merits brief and its trial court brief defending against defendant's
motion to dismiss the superseding indictment. The forensic laboratory report
was not provided in the record on appeal.
                                                                             A-5249-16T4
                                         3
doorway of the victim's apartment where her body was found.            The State

included that evidence when it sought and obtained a superseding indictment

from a second grand jury charging defendant with one count of first-degree

murder, which was the subject of defendant's motion to dismiss. Subsequent to

the denial of that motion, defendant pleaded guilty to an amended charge of first-

degree aggravated manslaughter but preserved his right to appeal the denial of

the motion to dismiss the indictment. 2

       Defendant reprises his argument before the trial judge: the second

indictment should be dismissed because the State vindictively presented the

newly-obtained DNA evidence that provided only a link between defendant and

the homicide, but did not provide proof that justified the second grand jury's

finding of the more culpable mental states of knowing and purposeful conduct,

which were rejected by the first grand jury.3 Judge Michael L. Ravin rejected

defendant's contentions, presciently finding: no law prevented re-presentation;




2
    The plea agreement also included charges on an unrelated matter.
3
   In order to prove murder, the State must prove a defendant purposel y or
knowingly caused the victim's death or serious bodily injury that resulted in
death. N.J.S.A. 2C:11-3(a)(1),(2). The State must prove that a defendant
recklessly caused the victim's death to sustain a manslaughter conviction.
N.J.S.A. 2C:11-4(b)(1).
                                                                          A-5249-16T4
                                          4
the State's new DNA evidence justified the re-presentation of the case; and the

State's re-presentation was not vindictive.

      In reviewing the judge's decision to dismiss the indictment, we "must

ensure that the correct legal standard was employed by the trial court." State v.

Abbati, 99 N.J. 418, 436 (1985); see also State v. Shaw, 455 N.J. Super. 471,

481 (App. Div. 2018). We review legal questions de novo. Shaw, 455 N.J.

Super. at 481. The review of the dismissal, however, is for abuse of discretion,

State v. Hogan, 144 N.J. 216, 229 (1996), and recognizing that the judge's

exercise of discretion will not be disturbed on appeal unless there is a clear abuse

of discretionary authority, State v. Saavedra, 222 N.J. 39, 55-56 (2015), we

affirm Judge Ravin's dismissal of the indictment substantially for the reasons set

forth in his comprehensive and cogent written decision.

      We recently concluded – subsequent to Judge Ravin's decision – "no New

Jersey statute or common law precedent . . . categorically bars a prosecutor from

choosing to submit a case to a new grand jury after one has previously voted a

no bill, or requires the State to present new evidence as a condition of

resubmission."    Shaw, 455 N.J. Super. at 484.          We surmised, however,

considering the pitfalls of boundless re-presentations, that our Supreme Court

"would place some limits on successive resubmissions, in order to respect the


                                                                            A-5249-16T4
                                         5
grand jury's screening function to shield the innocent; control the abusive

exercise of prosecutorial discretion; and assure defendants fundamental

fairness"; we, however, did not set those limits. Id. at 488. Nor need we fix

those limits in this case.

      Judge Ravin recognized that the State's witness, when asked by a grand

juror during the first proceedings if there was any forensic evidence that linked

defendant to the victim's strangulation, responded there was not. The only DNA

evidence that existed at that time indicated defendant was a match to some of

the seminal fluids collected from the victim's body, not from her neck. We agree

with Judge Ravin that "[b]y testifying before the second grand jury that DNA

evidence linked [d]efendant to the victim's neck, [the State's witness] presented

new evidence that went directly to the issue of [d]efendant's culpability with

respect to the strangulation of the victim, which caused her death." We also

agree with his finding that the newly-confirmed DNA evidence from the watch

found at the crime scene was also material to the second panel's return of a first-

degree murder indictment. Inasmuch as the new evidence not only provided a

more solid link between defendant and the homicide, but also connected

defendant to the neck compressions that caused the victim's death, we see no




                                                                           A-5249-16T4
                                        6
abuse by the State's resubmission of the case to the second grand jury, nor any

abuse of discretion by Judge Ravin in denying defendant's motion to dismiss.

      We also agree with Judge Ravin's conclusion that defendant failed to show

the State was vindictive in seeking the second indictment. The State resubmitted

the case during the pretrial stage. A presumption of vindictiveness, therefore,

was not justified. State v. Gomez, 341 N.J. Super. 560, 574 (App. Div. 2001).

In Gomez, we observed:

            Trial preparation or continuing investigation may well
            lead the prosecutor to the reasonable conclusion that
            additional or substituted charges are appropriate. The
            fact that a prosecutor seeks or obtains additional
            charges after a defendant seeks and asserts a right prior
            to trial should not result in a per se presumption of
            vindictiveness. Rather the issue is whether the
            prosecutor's action was solely retaliation against
            defendant for the exercise of a legal right.

            [341 N.J. Super. at 575 (citations omitted).]

The new DNA evidence presented a non-vindictive reason for resubmission of

the case to the grand jury, enfeebling defendant's contention that the vindictive

second presentation was provoked by defendant's refusal to plead guilty. Judge

Ravin's sound decision was not an abuse of discretion.

      Defendant's argument that the State's all-or-nothing instruction to the

grand jury, requesting that they return an indictment only for first-degree


                                                                         A-5249-16T4
                                       7
murder, violated the grand jury's decision-making function and defendant's due

process rights was not raised to the trial court; we will not consider it here. State

v. Robinson, 200 N.J. 1, 20 (2009). If we did, his argument, based on the

inapposite holding in Keeble v. United States, 412 U.S. 205 (1973) – which dealt

with lesser included offenses presented to a trial jury, not a grand jury – would

be without sufficient merit to warrant discussion.          R. 2:11-3(e)(2).      We

previously held in State v. Pessolano, absent a manifest legislative intent to

prosecute under a single statute,

             "[i]n the many situations where criminal statutes
             overlap in prohibiting the same basic act, the
             [prosecutor] in the sound exercise of the discretion
             committed to him may proceed under either act," State
             v. Gledhill, 67 N.J. 565, 574 (1975)[,] so long as
             judgment is not entered against the defendant "under
             more than one statute for the same offense." State v.
             Pescatore, 213 N.J. Super. 22, 30 (App. Div. 1986).

             [343 N.J. Super. 464, 475 (App. Div. 2001).]

      Although defendant moved the trial court to withdraw his plea, his

argument there was based on the Slater4 factors. He presently argues that his


4
  State v. Slater, 198 N.J. 145, 157-58 (2009) (holding a judge considering a
defendant's plea withdrawal motion must "consider and balance four factors in
evaluating motions to withdraw a 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)


                                                                             A-5249-16T4
                                         8
admissions during the plea colloquy did not establish a factual basis for any

culpable mental state, "let alone the extreme indifference to human life required

to sustain" a plea to aggravated manslaughter. Such a challenge is cognizable

on direct appeal, as we are "in the same position as the trial court in assessing

whether the factual admissions during a plea colloquy satisfy the elements of

the offense." State v. Urbina, 221 N.J. 509, 527-28 (2015). Our review is de

novo. State v. Tate, 220 N.J. 393, 403-04 (2015).

      Our review of the record reveals defendant's admissions established a

factual basis for the crime as required by Rule 3:9-2. Defendant's admissions

had to establish that he "recklessly cause[d] death under circumstances

manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). A

defendant acts "recklessly"

            when he consciously disregards a substantial and
            unjustifiable risk that the material element exists or will
            result from his conduct. The risk must be of such a
            nature and degree that, considering the nature and
            purpose of the actor's conduct and the circumstances
            known to him, its disregard involves a gross deviation
            from the standard of conduct that a reasonable person
            would observe in the actor's situation.

            [N.J.S.A. 2C:2-2(b)(3).]



whether withdrawal would result in unfair prejudice to the State or unfair
advantage to the accused").
                                                                          A-5249-16T4
                                        9
      Defendant admitted that after he went to the victim's house, he "put [his]

hands on her neck and [–] a moment [–] minutes later, she was dead." The judge

questioned defendant and the following discussion ensued:

            THE COURT: [W]hen you placed your hands around
            Le'lia Whatley's neck, . . . did you strangle her? Like,
            for example, if somebody put their hands around my
            neck, and the next thing I knew I was dead, I guess one
            could say I'd been strangled. Somebody . . . choked me.
            Did you choke her?

            [DEFENDANT]: Yes, yeah, yeah.

            THE COURT: (Pause). And the result of you choking
            her, she died?

            [DEFENDANT]: (Pause). Yeah.

      We are guided by our Supreme Court's recognition that defendants are

reticent when faced with "admitting the distasteful reality that makes the

charged conduct criminal" during a plea colloquy, State v. Smullen, 118 N.J.

408, 415 (1990), during which they often exhibit a "natural reluctance to

elaborate on the details," State ex rel. T.M., 166 N.J. 319, 334 (2001). Thus, in

determining if a factual basis exists, courts may draw rational inferences from

the defendant's admissions. State v. Campfield, 213 N.J. 218, 236-37 (2013).

      Under that lens, defendant's admission that he put his hands on the victim's

neck and choked her until, minutes later, she was dead establishes that he


                                                                          A-5249-16T4
                                      10
disregarded a substantial and unjustifiable risk that choking her for minutes

would cause her death. It can be reasonably inferred that the disregarded risk

from such conduct was a gross deviation from what a reasonable person would

do in defendant's situation. See N.J.S.A. 2C:2-2(b)(3). Although perhaps the

more thorough practice would have been to have defendant admit that he was

aware of and consciously disregarded the risk that his actions would cause the

victim's death, and that his conduct resulted in a probability of her death, his

admission was sufficient to establish the mental state for the crime. Defendant's

admitted-specific facts – choking Le'lia Whatley for minutes until she was dead

– distinguish this case from those where a factual basis was deemed inadequate.

See, e.g., State v. Vasco, ___ N.J. ___ (2018) (adopting Judge Marianne

Espinosa's dissent, State v. Vasco, ___ N.J. Super. ___, ___ (App. Div. 2018)

(slip op. at 19), which observed that defendant, charged with possession of a

weapon for an unlawful purpose, "admitted he knowingly possessed the

weapon" . . . but "admitted little else").

      We determine defendant's argument that a remand to the trial court is

required for a new hearing on his plea withdrawal motion because he was denied

the right to make his own arguments lacks merit. Defendant interjected during

Judge Ravin's oral decision after both sides had presented their positions and


                                                                         A-5249-16T4
                                        11
asked, "Do I get a chance to speak to defend myself? Or do I have to . . . fire

my attorney and just go pro se?"        Defendant interrupted when the judge

attempted to ascertain if defense counsel had presented "everything [he] needed

to say on behalf of [his] client," and, again during the judge's attempt to

complete his decision, asking if he could "go pro se." The judge ultimately

finished his decision and postponed defendant's sentencing – with which the

judge wanted to proceed immediately after the delivery of his decision. It is

obvious defendant made his oral request to proceed pro se only after it became

apparent the judge was not going to grant his motion to withdraw his plea.

      We note, significantly, that defendant never raised the issue again, even

when he had the opportunity to address the court at the next hearing – the last

hearing in this case – when he was sentenced. His outburst during the judge's

ruling on the penultimate issue in the case did not amount to a cognizable request

to represent himself. As we previously determined:

            "The right of an accused to represent himself, with or
            without the assistance of counsel, is not so absolute that
            it must be recognized when to do so would disrupt the
            business of the court. . . ." State v. White, 86 N.J.
            Super. 410, 418-19 (App. Div. 1965). A defendant
            cannot participate in a "cat and mouse game," State v.
            Slattery, 239 N.J. Super. 534, 542-43 (App. Div. 1990),
            by placing the judge in the "unenviable dilemma"
            where, in managing the affairs of the court, he appears


                                                                          A-5249-16T4
                                       12
              to be arbitrarily depriving the accused of counsel. State
              v. Buhl, 269 N.J. Super. 344, 363 (App. Div. 1994).

              [State v. Roth, 289 N.J. Super. 152, 164-65 (App. Div.
              1996).]

       A defendant's failure to abide by our Rules requiring the filing of a motion

to proceed pro se deprives the court and the State of an opportunity to fully

address the issue. See R. 1:6-2. The searching inquiry now required of trial

judges when a defendant requests self-representation is a lengthy process that

cannot be attended to without preparation. Notice is required to allow the judge

to meet the imposed obligations of ensuring that defendant: is informed of the

consequences of self-representation;5 understands the ramifications; and


5
    Court holdings require:

              the trial court to inform a defendant asserting a right to
              self-representation of (1) the nature of the charges,
              statutory defenses, and possible range of punishment;
              (2) the technical problems associated with self-
              representation and the risks if the defense is
              unsuccessful; (3) the necessity that defendant comply
              with the rules of criminal procedure and the rules of
              evidence; (4) the fact that the lack of knowledge of the
              law may impair defendant's ability to defend himself or
              herself; (5) the impact that the dual role of counsel and
              defendant may have; (6) the reality that it would be
              unwise not to accept the assistance of counsel; (7) the
              need for an open-ended discussion so that the defendant
              may express an understanding in his or her own words;


                                                                           A-5249-16T4
                                         13
knowingly and voluntarily waives the right to counsel. Crisafi, 128 N.J. at 512-

13. In that defendant failed to make a proper application to proceed pro se, there

is no cause to grant a remand for a new hearing on the motion to withdra w his

plea.

        Defendant's remaining arguments are without sufficient merit to warrant

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

        Affirmed.




             (8) the fact that, if defendant proceeds pro se, he or she
             will be unable to assert an ineffective assistance of
             counsel claim; and (9) the ramifications that self-
             representation will have on the right to remain silent
             and the privilege against self-incrimination.

             [State v. DuBois, 189 N.J. 454, 468-69 (2007).]



                                                                          A-5249-16T4
                                        14
