                        NOT FOR PUBLICATION WITHOUT THE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-4343-13T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

STEVEN CONTRERAS,

        Defendant-Appellant.

____________________________________

              Argued October 31, 2016 – Decided August 7, 2017

              Before Judges Nugent and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              10-11-1628.

              Alan D. Bowman argued the cause for appellant.

              Jason M. Boudwin, Assistant Prosecutor, argued
              the cause for respondent (Andrew C. Carey,
              Middlesex County Prosecutor, attorney; Mr.
              Boudwin, of counsel and on the brief).

PER CURIAM

        Defendant Steven Contreras appeals from an April 3, 2014

judgment of conviction for three counts of aggravated assault,

various conspiratorial offenses, and one count each of riot and
hindering prosecution.          On appeal, defendant raises the following

arguments:

             POINT I

             APPELLANT SHOULD HAVE BEEN PERMITTED TO
             WITHDRAW THE GUILTY PLEA ENTERED HEREIN.
             (PARTIALLY RAISED BELOW)

             POINT II

             THE PLEA TO CONSPIRACY TO COMMIT AGGRAVATED
             ASSAULT CONSTITUTED AN IMPROPER AMENDMENT OF
             THE INDICTMENT. (NOT RAISED BELOW)

             POINT III

             THE SENTENCE IMPOSED IS EXCESSIVE AND UNDULY
             PUNITIVE.

      For the reasons that follow, we affirm.

      On    July   1,   2010,    police       charged    defendant     in   juvenile

delinquency complaints with offenses that, if committed by an

adult, would constitute murder, aggravated assault, conspiracy,

and   criminal     mischief.        Two   months        later,   the   matter     was

transferred to the Law Division, Criminal Part.

      On November 3, 2010, a Middlesex County Grand Jury charged

defendant and three co-defendants in a multi-count indictment with

second-degree conspiracy to commit aggravated assault, N.J.S.A.

2C:5-2     and   N.J.S.A.   2C:12-1(b)(1)        (count     one);    fourth-degree

conspiracy to commit riot, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:33-1

(count two); second-degree aggravated assault, N.J.S.A. 2C:12-


                                          2                                  A-4343-13T4
1(b)(1) (counts three, six, and seven); third-degree criminal

mischief,    N.J.S.A.   2C:17-3(a)(1)      (count   four);      first-degree

murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count five); fourth-degree

riot,    N.J.S.A.    2C:33-1(a)   (count     eight);   and      third-degree

hindering apprehension or prosecution, N.J.S.A. 2C:29-3(a) (counts

nine and ten).       Following the indictment, defendant moved to

suppress his statements to police.         The court denied the motion.

The charges against defendant were severed, and he was tried before

a jury in April 2012.

     The    State   presented   the   following   proofs   at   defendant's

trial.   On June 25, 2010, at approximately 11:00 p.m., the victim,

his wife, and their two adolescent children went for a walk around

their neighborhood.     Near the end of their walk, they noticed four

teenagers, who appeared to be seventeen or eighteen years old,

following them.     The victim told his family to ignore them.            One

of the teenagers came very close to the family, tapped the victim

on the shoulder, and said, "hey, man, I want to ask you something."

When the victim turned around, the teenager punched him in the

head, causing him to stagger.         The attacker punched the victim in

the head three or four more times, as the other teenagers encircled

the victim's family.       The victim's wife watched as one of the

teenagers began to punch her older son in the head.          The teenagers

also began striking the victim's younger son.          The teenagers then

                                       3                             A-4343-13T4
took turns striking the victim's sons as the victim lay on the

grass.    One of the teenagers kicked him in the head.

     Eventually, the teenagers fled the scene, returned to their

car, and drove away.       An anesthesiologist who lived nearby came

to the scene to assist the family.         When he arrived, he observed

the victim's body was drooping, his breathing was shallow, and he

spoke    in   short,   incomprehensible    slurs.      Emergency    medical

technicians arrived and transported the victim to the Raritan Bay

Medical Center.        Medical personnel diagnosed the victim with a

"hemorrhagic stroke"; his brain was bleeding.                The victim was

transferred to the Robert Wood Johnson Trauma Center where he was

pronounced dead three days after the attack.           The cause of death

was blunt force trauma to the head.

     The victim's older son recognized one of the assailants as

co-defendant Julian C. Daley, a classmate from school.               Police

questioned Daley at his residence.        He denied any knowledge of the

assault.      Daley claimed he was at a fast-food restaurant with his

friends, co-defendant Christopher Conway and "Steve."

     Police interviewed co-defendant Conway at his residence.

Conway   initially     denied   any   knowledge   of   the   incident,   but

eventually admitted there had been a "big fight" that night.

Conway identified "Steve" as defendant, claiming he was present



                                      4                             A-4343-13T4
during the attack.        Conway denied that either he or defendant took

part in the actual attack.

       The    police     next   interviewed      defendant.1        According      to

defendant, on the evening of the incident, he and the co-defendants

were    drinking     malt     liquor.      After    stopping   at    a   fast-food

restaurant     at    approximately       11:00   p.m.,   defendant       drove   his

friends around for some time.              While doing so, another car cut

them off.       A road-rage incident ensued.             During the incident,

defendant pursued the other car; the occupants of the vehicles

stopped, exited, and engaged in a heated exchange; defendant

pursued the other car a second time; a co-defendant threw something

at the other car, shattering the hood; and defendant pursued the

car again, but it got away.

       Following the road-rage incident, the co-defendants were

"heated up," and co-defendant Daley suggested they "go find some

kids    and   fuck     them   up."      Defendant   drove    everyone     into   the

neighborhood where the victim and his family were taking a walk.

When the assailants saw the victim's family, they decided to fight

them.    Defendant remained in his car with the lights off while the

co-defendants        attacked   the     victim   and   his   family.       The   co-




1
  Audio recordings of defendant's interviews with law enforcement
were played during the trial.

                                          5                                 A-4343-13T4
defendants returned to the car and defendant drove off.                        Everyone

agreed not to speak about the incident.

       In the days following the incident, defendants tried to

coordinate their version of the incident in the event police tried

to speak with them.          Further investigation revealed that defendant

and some of the co-defendants had selectively deleted cellular

text messages and call logs to each other around the date of the

incident.           Defendant     also    admitted     that    co-defendant       Daley

instructed him to delete their text message conversations.

       At the trial's conclusion, the jury found defendant guilty

of    the       lesser-included    offense      of   third-degree       conspiracy     to

commit aggravated assault (count one); fourth-degree conspiracy

to commit riot (count two); three counts of the lesser-included

offenses of third-degree aggravated assault (counts three, six,

and    seven);       fourth-degree       riot   (count    eight);   and       hindering

apprehension (count nine).               The jury found defendant not guilty

of    the       remaining   offenses,     including      murder   and    the    lesser-

included offense of aggravated manslaughter, but was unable to

reach       a    verdict    on   the   lesser-included        offense    of    reckless

manslaughter (count five).               The matter was returned to the trial

calendar for retrial on the latter charge.

       At a status conference held on June 20, 2012, defendant

rejected the State's plea offer of a four-year prison term subject

                                            6                                   A-4343-13T4
to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), in exchange

for his guilty plea to reckless manslaughter.    At that time, the

court had the following exchange with defendant:

          The court: Mr. Contreras, I want you to sit.
          I want you to pay really, really close
          attention. What you do is entirely up to you.
          Do you understand that, young man?

          Defendant: Yes.

               . . . .

          The court: You sat through a trial and you
          knew pretty much what the evidence is going
          to be. You never know what a jury is going
          to do.    You sat through the trial.     You
          probably still have a copy of the model jury
          charge.

          Defendant: Yes.

          The court: And if you recall that charge
          simply says conspiracy agreement, reckless act
          cause of death. Think long and hard what a
          jury is going to do if that's the only charge
          in front of them, okay? Because if they come
          back and they convict you it's 85% [sic]
          offense and I can tell you that there’s a
          presumption of incarceration and you will be
          going to State Prison absent some highly
          unusual circumstances.    I don't see any in
          this case. Do you understand that?

          Defendant: Yes, sir.

          The court: I am not telling you to take [the]
          State's plea offer. I’m not. But the plea
          offer the State is offering you is no more
          than four . . . . Is it a flat four?

          The State: [NERA] would still apply but it
          would be the third degree range.

                                 7                          A-4343-13T4
         The court: Now, a four, three and a half years,
         it's not close to 15 or 20. Do you understand
         that?

         Defendant: Yes, sir.

         The court: And what you do is your life.
         Certainly you should talk to your family.
         Make sure the decision you make you think is
         best for you. You have every right to get in
         front of a jury again, okay?

         Defendant: Yes, sir.

         The court: But I don’t want to hear any
         complaint if a jury comes back other than some
         manner you would like. You have pretty clear
         testimony that you drove, dropped them off,
         drove them away, and that the kids were
         looking for a brawl, beat somebody up
         . . . [a]nd somebody was hit. Somebody died.
         Now, again, I can't tell you what a jury is
         going to do. It sounds kind of reckless to
         me at a minimum and that’s all that’s
         necessary for guilt. You decide, young man,
         what you want to do. All I'm advising you, I
         want to make sure you understand it, it would
         not shock me if they came back differently
         than they came back the last time.      Again,
         don't rely on what I’m saying. You sat through
         the trial.    Talk to your lawyer.    Make an
         intelligent informed decision. Whatever that
         is I'll accept it. Do you understand me?

         Defendant: Yes, sir.

    The matter was then re-listed for trial, but it was not re-

tried.   On November 27, 2012, defendant pleaded guilty to an

amended charge of conspiracy to commit aggravated assault and

agreed to testify truthfully at the co-defendants' trial.         In


                                8                          A-4343-13T4
exchange, the State agreed to recommend a four-year prison term

subject to NERA to run concurrent to any sentence imposed on the

offenses the jury convicted him of committing.                   The State also

agreed to consider lowering its recommended four-year prison term

to   a    three-year   sentence   subject      to   NERA   and   to     dismiss   an

outstanding juvenile complaint.             Finally, the State agreed to

recommend treating defendant as a youthful offender, allowing him

to go to a juvenile facility rather than state prison.                             If

defendant     failed    to   cooperate    in    accordance       with    the    plea

agreement, the State would be relieved of making its sentencing

recommendations,       in    which   case      defendant     would       face     the

possibility of a maximum sentence.

         At the November 27 plea hearing, defense counsel advised

defendant that by pleading guilty to a second-degree crime, he

could face either a ten-year prison sentence with five years of

parole ineligibility, a seven-year sentence with three and a half

years of parole ineligibility, or face a term set by the court

where he must serve eight-five percent of the sentence before

becoming eligible for parole.            Defense counsel further advised

defendant his guilty plea would not require imposition of a

mandatory sentence, but the sentence would be subject to NERA.

         Defendant   acknowledged    that   his     attorney     explained        the

consequences of NERA.        Further, defendant acknowledge the State's

                                      9                                    A-4343-13T4
agreement    and   that   his   failure   to    cooperate   under   the    plea

agreement could subject him to the maximum custodial sentence.

Defendant said he understood the difficulty of withdrawing from

his guilty plea once the court accepted it, and he admitted several

times that his plea was not the product of any threats, promises,

or coercion.

     Trial of co-defendants Christian M. Tinli and Cash Q. Johnson

commenced on August 6, 2013.2             Defendant reneged on his plea

agreement.     Defendant    testified      he   never   conspired   with   co-

defendants Tinli and Johnson.       Defendant also testified Tinli and

Johnson conspired with no one on the date of the incident.                 Co-

defendants Tinli and Johnson were convicted of one count of simple

assault and acquitted of all other charges.

     Following the jury verdict, the State moved for specific

performance of the plea agreement, seeking to be relieved of its

sentencing recommendation on the basis that defendant did not

testify truthfully.       Defendant opposed the motion and moved to

withdraw from the plea agreement.               In support of his motion,

defendant argued the court "bullied him into pleading guilty" at

the June 2012 status conference, claimed he was never made aware



2
  Co-defendants Daley and Christopher Conway pleaded guilty to
second-degree conspiracy to commit aggravated assault and first-
degree manslaughter.

                                    10                                A-4343-13T4
of his maximum custodial sentence, and contended his guilty plea

violated his protection against double jeopardy.

     The   court     granted      the        State's   motion   for    specific

performance, finding defendant had breached the plea agreement by

failing to testify truthfully at his co-defendants' trial.                       The

court determined defendant's testimony at trial was inconsistent

with the statements he previously made to law enforcement.                      Such

conduct left the court "overwhelmingly convinced" that defendant

acted deliberately to help the co-defendants so as to lessen their

involvement in the conspiracy.

     The court denied defendant's motion to vacate or withdraw his

guilty plea, ruling that his plea contained a sufficient factual

basis and that defendant waived his double jeopardy defense.

Additionally, the court found unpersuasive defendant's argument

that he did not understand his potential maximum sentence and that

the court had coerced him into pleading guilty at the June 2012

status conference.       The court also concluded defendant had not

satisfied the factors for plea withdrawal as set forth in State

v. Slater, 198 N.J. 145 (2009).

     Following     the   denial    of    defendant's      motion,     the     court

sentenced defendant to the following custodial terms.                  On count

five, conspiracy to commit second-degree aggravated assault, the

court sentenced defendant to an eight-year custodial term subject

                                        11                                  A-4343-13T4
to NERA, the sentence to run consecutive to a three-year sentence

imposed on count three, the lesser-included offense of third-

degree aggravated assault.        On counts six and seven, the lesser-

included offenses of third-degree aggravated assault, the court

imposed three-year custodial terms to run concurrently with each

other but consecutive to count three.             On count eight, riot, the

court imposed a one-year custodial term concurrent to all other

counts.      Finally, the court imposed an eighteen-month custodial

term on count nine, hindering prosecution, to run consecutive to

counts three, six, and seven, but concurrent with count eight.

       The   court   found   aggravating   factor    one,    N.J.S.A.    2C:44-

1(a)(1), "the nature and circumstances of the offense, and the

role   of    the   actor   therein,   including    whether   or   not   it   was

committed in an especially heinous, cruel, or depraved manner."

The court next found aggravating factor two, N.J.S.A. 2C:44-

1(a)(2), "the gravity and seriousness of the harm inflicted on the

victim, including whether or not the defendant knew or reasonably

should have known that the victim of the offense was particularly

vulnerable or incapable of resistance . . . ."               The judge found

this factor because of the "particularly heinous" nature of the

harm inflicted on the victim which resulted in death.               The court

also found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the

need for deterring defendant and others from violating the law,

                                      12                                A-4343-13T4
because of the intolerable nature of the offense.                Additionally,

the court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3),

the risk that defendant will commit another offense, because of

defendant's lack of candor while testifying at his co-defendants'

trial.     The court did not give this factor significant weight.

Lastly, the court found aggravating factor eight, N.J.S.A. 2C:44-

1(a)(8), which states, in part, that defendant committed an offense

against a law enforcement officer in the performance of his duties.

The court gave this factor some weight as a result of defendant's

conviction for hindering apprehension or prosecution.

      The court found only mitigating factor seven, N.J.S.A. 2C:44-

1(b)(7), defendant's lack of criminal record, because he had no

prior history of criminal activity.

      On   appeal,   defendant     first   argues      he   "should   have   been

permitted to withdraw the guilty plea entered herein."                 He claims

the   statements     the   trial   court   made   at    a   status    conference

misstated the law concerning reckless manslaughter. Specifically,

he asserts "the court misstated . . . that a retrial would involve

presentation to the jury of a charge that 'simply says conspiracy

agreement, reckless act causing death.'"            Emphasizing this point,

as well as the court's statement to defendant to "think long and

hard what a jury is going to do if that's the only charge in front

of them," defendant insists his plea was coerced.                 In addition,

                                     13                                  A-4343-13T4
for the first time on appeal, defendant raises an argument that

the trial court's acceptance of the jury's partial verdict and

intent to retry defendant on reckless manslaughter violated the

constitutional protection against double jeopardy.

     Defendant's arguments are without sufficient merit to warrant

discussion.       R.    2:11-3(e)(2).       We   add   these   comments     only.

Defendant's contention he was misled by comments the trial court

made during a status conference is premised on a partial statement

the court made, which defendant takes entirely out of context.

Defendant overlooks the court's reference to defendant having sat

through trial, having a copy of the model jury charges, and

therefore     knowing     the   content     of   the    charge   on   reckless

manslaughter.     Considered in context, the court was doing nothing

more than pointing out a possibility defendant could be convicted

even if he did not participate in the actual beating of the victim.

     In addition, the court repeatedly told defendant it was his

decision to accept or reject the plea offer.             Defendant heeded the

advice and rejected the offer.              Five months later, when jury

selection for the retrial was scheduled to begin, the parties

negotiated    a   new   plea    agreement   that   was    more   favorable       to

defendant.    The plea colloquy leaves no doubt defendant was fully

informed of every material aspect of the new plea agreement and

voluntarily entered his plea.

                                     14                                   A-4343-13T4
     Defendant's double jeopardy argument is also devoid of merit.

Generally, "'double jeopardy . . . do[es] not prohibit retrial of

a defendant when a prior prosecution for the same offense has

ended in mistrial attributable to the inability of the jury to

agree on a verdict,' because 'the jeopardy to which the defendant

is exposed is considered a continuation of original jeopardy,

which was not terminated by the mistrial.'"   State v. Johnson, 436

N.J. Super. 406, 421 (App. Div. 2014) (alterations in original)

(quoting State v. Abbati, 99 N.J. 418, 425-26 (1985)).   Defendant

has pointed to nothing in the record to suggest either that the

mistrial in his case was granted for any reason other than the

jury's inability to reach a verdict, or that the trial court's

decision to declare a mistrial was inappropriate.

     Having considered defendant's remaining arguments in view of

the record and applicable legal principles, we find no basis for

concluding the trial court abused its discretion when it denied

defendant's application to withdraw his guilty plea.      State v.

Munroe, 210 N.J. 429, 442 (2012) (citing Slater, supra, 198 N.J.

at 145).

     In his second point, defendant argues for the first time on

appeal his plea to conspiracy to commit aggravated assault, as

amended from reckless manslaughter, must be vacated because the

amended charge was not a lesser-included offense.   The trial court

                               15                           A-4343-13T4
amended the charge to facilitate the parties' plea agreement.                       We

find no plain error in the court doing so.                 R. 2:10-2.

      Generally,     "[i]n    the   absence      of    a    valid   waiver,        the

submission to the jury of an offense which is not a lesser

included offense violates a defendant's state constitutional right

not to be tried except upon the presentment or indictment of a

grand jury."      State v. Battle, 256 N.J. Super. 268, 281 (App.

Div.) (citations omitted), certif. denied, 130 N.J. 393 (1992).

Although   a    defendant    generally    must     waive      the   right     to    an

indictment in writing, State v. Ciuffreda, 127 N.J. 73, 79 (1992),

there are circumstances in which oral consent will suffice.                        See

id. at 82.     We deem this to be such a circumstance.

     Here,     defendant    explicitly    agreed      to    plead   to   a    lesser

offense, and thus to an amended charge.               By doing so, he reduced

his potential prison sentence to four years subject to NERA.                        In

addition, defendant pleaded guilty to the conspiratorial offense

because he believed such a conviction would be easier to expunge.

Under those circumstances, defendant's guilty plea to conspiracy

to commit aggravated assault — an offense for which he had not

been indicted — was not clearly capable of producing an unjust

result.

     Defendant argues in his final point that his sentence is

excessive and unduly punitive.        Our review of the record reveals

                                     16                                      A-4343-13T4
both that the court's findings of aggravating and mitigating

factors are supported by the record and that the court followed

the sentencing guidelines in New Jersey's Code of Criminal Justice.

The sentence does not "shock the judicial conscience" in light of

the facts of the case.   State v. Roth, 95 N.J. 334, 364-65 (1984).

Accordingly, we find no basis for reversing the trial court's

sentencing discretion.

     Affirmed.




                                17                          A-4343-13T4
