STATE OF NEW JERSEY v. DEWAYNE JACKSON DEWUANE JACKSON (2011)

Tried by a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1;  third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5;  and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4A;  and was acquitted of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4).   After merging the weapons offenses, the judge sentenced defendant to an aggregate ten-year prison term, eighty-five percent to be served prior to parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals and we affirm.

According to the State's proofs at trial, at around 3:00 p.m. on January 29, 2006, Edgar Viera began his shift as a cab driver for Caroba Taxi in Plainfield.   Shortly before 4:00 p.m., he picked up two African-American males between twenty and twenty-five years old, one with a goatee, at the taxi station on Watchung Avenue in Plainfield.   Viera already had a passenger in the front seat, so both men sat in the back seat of the vehicle.   After the first fare was dropped off, the men requested a ride to Whitewood Avenue.   Upon arrival, Viera was asked to wait as the man with the goatee exited the cab and went up the driveway toward the house.   Approximately two to three minutes later, he returned and reentered the cab's backseat.   At the same time, the other man, later identified as defendant, switched his seat from the back seat to the front passenger seat, next to Viera.   Next, the men gave Viera various directions until they approached the middle of the block on Kensington Avenue, where they directed Viera to pull the vehicle to the side of the road.

Once stopped, the man with the goatee in the rear seat exited the cab on the driver's side, went to the driver's side window, knocked on the window, and ordered Viera to put the car in park and open his door.   When instructed to open his door, Viera turned around to look at defendant, who was holding a pistol, described as “an automatic black pistol [six to eight inches in length] like the ones that the police carry.”   There was only one-and-a-half to two feet of distance between the gun and Viera's head.

Viera exited the vehicle and the man who knocked on the window took Viera's wallet from his back pocket, while defendant, remaining in the front seat, ordered Viera to hand over his ready cash, a total of approximately $90.   The two men then fled down a driveway on Kensington Avenue.   Viera parked his cab and called dispatch to inform them of the robbery and request that they call the police.

Meanwhile, a resident of the neighborhood, Brian Schoenberger, saw two young African-American males wearing dark puffy “North Face” style jackets move at a fast pace past his home office window and down his driveway towards his backyard.   Schoenberger left his office and ran outside to confront them, demanding to know “what the hell are you doing on my property?”   The two men turned toward Schoenberger, allowing him to see their faces, as it was still daylight, and then ran off, around his garage, over a fence, and through his neighbor's backyard.   After the men fled, Schoenberger walked to the front of the house and approached the parked taxi, where Viera informed him of the robbery.   Schoenberger called the police, who arrived within minutes.

Viera and Schoenberger remained together until the police notified them that “they had caught one of the gentlemen and they asked if [they] could come with them to ID him.”   Viera and Schoenberger were then taken in the same police car to where the suspect was in custody.   From inside the police vehicle, Viera identified defendant, the suspect in custody who Viera stated was standing at the rear of another patrol car, as “the person that was sitting next to me pointing with the gun ․ I was sure 100%.”   Viera estimated that the identification occurred approximately twenty to thirty minutes after the robbery.   From the back of the same police car, Schoenberger identified defendant as one of the men he saw in his backyard.   According to Schoenberger, however, defendant was sitting in, not standing outside of, the other patrol car.   Schoenberger estimated that thirty to forty-five minutes passed between his witnessing the men running through his driveway and the identification.

After the identification, Viera was taken to the police station where he gave a sworn statement.   He was also shown a photograph of defendant and identified him as the person who pointed a gun at him during the robbery.   Schoenberger did not provide an official statement until July 17, 2007.

After he was identified, defendant was transported to the police station where Detective Francis Wilson advised him of his Miranda ¹ rights.   Prior to interrogation and just before signing the final line of the Miranda form, Wilson asked defendant whether he was willing to talk about “who has the actual gun” and defendant volunteered that his cohort “has the gun.”   Defendant then completed execution of the Miranda form and admitted that he was in the front seat of the cab and that the other man, whom he identified as Marcus, “Black,” or “Knight,” approached the cab driver's door with the gun, which was real and loaded.   Defendant denied having a gun and stated that he just pretended to have one by pulling out a cell phone and “poking [Viera] in his head with the phone.”   According to defendant, he only used the phone to prevent Marcus from actually shooting the cab driver.

Crediting the State's proofs, the jury convicted defendant of armed robbery and related weapons offenses.   On appeal, defendant raises the following issues:

I.  THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT SHOW-UP IDENTIFICATIONS OF BRIAN SCHOENBERGER AND EDGAR VIERA WITHOUT FIRST DETERMINING THE RELIABILITY OF THOSE IDENTIFICATIONS.  (Not Raised Below).

II. THE MATTER MUST BE REMANDED FOR A HEARING TO DETERMINE THE RELIABILITY OF THE OUT-OF-COURT IDENTIFICATIONS BECAUSE THE PROCEDURES USED MATERIALLY VIOLATED SEVERAL PROVISIONS OF THE ATTORNEY GENERAL'S GUIDELINES AND ARE THUS PRESUMED TO BE IMPERMISSIBLY SUGGESTIVE.  (Not Raised Below).

III. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO CONDUCT A WADE MOTION PRIOR TO TRIAL.  (Not Raised Below).

IV. THE STATEMENT TAKEN FROM MR. JACKSON WAS NOT VOLUNTARILY MADE AND ITS ADMISSION INTO EVIDENCE DEPRIVED HIM OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION (U.S. CONST.   AMENDS.  V, XIV;  N.J. CONST. (1947), ART. I, PAR. 1).

V. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE COURT RULES BY FAILING TO ALLOW A NEGOTIATED PLEA PRIOR TO TRIAL DESPITE SEVERAL MATERIAL CHANGES OF CIRCUMSTANCES INCLUDING NEW DISCOVERY AND UNRESOLVED TRIAL MOTIONS.

I.

The first three issues involve the failure to hold a Wade ² hearing.   Some background is in order.   Defense counsel moved pretrial to suppress the out-of-court identification by Schoenberger.³  In granting defendant's request for a hearing, the trial judge noted:

I mean, you could bring out all that, that he was sitting in the back of a police car arrested ․ Even though I find it doesn't rise to a constitutionally-suppressible level, it doesn't stop you from arguing to the jury that it was suggestive and they shouldn't rely on it.   But I'm going to allow you a hearing.

However, after a lunch break, defense counsel withdrew the request, informing the court that after discussing the matter with defendant, “he has agreed that we can withdraw the request for the Wade hearing with the understanding that when Mr. Schoenberger testifies I would be able to cross-examine him as to the reliability of his identification in front of the jury.”   The court then questioned defendant to ensure that he had sufficient time to discuss the matter with his attorney, had the benefit of his attorney's advice and input, and had made the “decision voluntarily after thoroughly discussing it with” counsel.⁴  Indeed, during cross-examination at trial, defense counsel questioned Schoenberger on his ability to identify the defendant, including the length of time he observed defendant, the length of time that passed since the crime occurred, his description to police, and his lack of involvement in the case for eighteen months.

On appeal, defendant contends that the trial court erred in failing to order a Wade hearing and that his counsel was ineffective for withdrawing his request for same because defendant's show-up identification was impermissibly suggestive and irreparably tainted its reliability.   We disagree.

Identification evidence will be deemed inadmissible where it is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”  Neil v. Biggers, 409 U.S. 188, 197, 93 S.Ct. 375, 381, 34 L. Ed.2d 401, 410 (1972);  State v. Cook, 330 N.J.Super. 395, 417 (App.Div.), certif. denied, 165 N.J. 486 (2000).   Due process requires suppression of identification evidence in such an instance, Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L. Ed.2d 1247, 1253 (1968), because, in the final analysis, a conviction that “rests on a mistaken identification” constitutes “a gross miscarriage of justice.”  Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L. Ed.2d 1199, 1204 (1967).   “As a result, our courts are obligated to utilize great care in the application of the governing principles in order to prevent an accused from being convicted on the basis of unreliable eyewitness evidence.”  State v. Henderson, 397 N.J.Super. 398, 416 (App.Div.), certif. granted and denied, 195 N.J. 521 (2008), and remanded by 2009 N.J. LEXIS 45 (Feb. 26, 2009).

Thus, a reviewing court must first determine whether the identification process was impermissibly suggestive and, if so, must then decide whether the identification was nevertheless reliable under the totality of the circumstances.  State v. Adams, 194 N.J. 186, 203 (2008) (citing State v. Romero, 191 N.J. 59, 76 (2007)).   This involves “ ‘weighing the suggestive nature of the identification against the reliability of the identification.’ ”  Ibid. (quoting Romero, supra, 191 N.J. at 76).   Factors to be considered include the “ ‘opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation.’ ”  State v. Madison, 109 N.J. 223, 239-40 (1988) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L. Ed.2d 140, 154 (1977)).   Where these and any other relevant factors have been considered and a court is convinced that the identification is reliable, the out-of-court identification should be admitted into evidence.  Adams, supra, 194 N.J. at 204 (citing State v. Herrera, 187 N.J. 493, 503-04 (2006)).   Reliability is clearly the dispositive factor in determining whether the out-of-court identification may properly be introduced at trial.  Ibid.

Thus, while one-on-one show-ups are “inherently suggestive” because the victim can only choose from one person and generally that person is in police custody, such a procedure is neither necessarily impermissibly suggestive nor does it necessarily subvert the reliability of the identification.  Herrera, supra, 187 N.J. at 504.

Our case law recognizes, however, that standing alone a show[-]up is not so impermissibly suggestive to warrant proceeding to the second step.   See State v. Wilkerson, 60 N.J. 452, 461 (1972) (upholding one-on-one identification by witness ninety minutes after observation).

[Ibid.]

Indeed, the Court has recognized that in some circumstances, on-or-near-the-scene identifications “ ‘are likely to be accurate, taking place, as they do, before memory has faded[ ] [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.’ ”  Ibid. (quoting Wilkerson, supra, 60 N.J. at 461);  see also State v. Carter, 91 N.J. 86, 130 (1982).   Nor does the fact that a suspect is handcuffed and in police custody automatically render the identification impermissibly suggestive.  State v. Wilson, 362 N.J.Super. 319, 327 (App.Div.), certif. denied, 178 N.J. 250 (2003);  see also Wilkerson, supra, 60 N.J. at 461 (noting that one-on-one identifications made at or near the scene of the initial observation within a reasonably short time “comes well within the exception to the Wade rule”).

Of course, even if an identification procedure is impermissibly suggestive, the identification may be admitted into evidence if it is reliable.   See Herrera, supra, 187 N.J. at 503-04 (“The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification.”).   As noted, “[t]he essential question is whether there was sufficient reliability in the identifications to overcome the suggestive nature and establish that there was not a substantial likelihood of irreparable misidentification.”  Adams, supra, 194 N.J. at 204.

A Wade hearing is conducted for the purpose of determining whether an out-of-court identification was made in unduly suggestive circumstances and, “if so, whether or not any ensuing in-court identification would be fatally tainted thereby.”   Pressler, Current N.J. Court Rules, comment 3.6.2 on R. 3:4-2 (2010).  “If the court concludes that it is not so tainted even though the identification might have been suggestive, then the credibility of the in-court identification, in view of the taint, becomes a jury question.”  Ibid.

A Wade hearing, however, is required only if there is a proffer of some evidence of impermissible suggestiveness.   See State v. Ruffin, 371 N.J.Super. 371, 391 (App.Div.2004);  State v. Ortiz, 203 N.J.Super. 518, 522 (App.Div.), certif. denied, 102 N.J. 335 (1985).  “[S]uch determination may be made by the trial judge as a matter of discretion under the totality of the circumstances.”  Ortiz, supra, 203 N.J.Super. at 522.   Even if we find that the trial court abused its discretion in denying a defendant's request for a Wade hearing, we will nonetheless affirm the ruling if we conclude that the identification procedure did not result in a “very substantial likelihood of irreparable misidentification.”  State v. Cherry, 289 N.J.Super. 503, 517 (App.Div.1995) (internal citations and quotations omitted).

In other words, a Wade hearing is not required in every case involving identification testimony.   See State v. Rodriquez, 264 N.J.Super. 261, 269 (1993).   Furthermore, trial judges generally will not initiate or conduct a hearing on their own motion without a challenge by a party, as they recognize, as do we, that in many instances challenges are deferred for tactical or strategic reasons.   See State v. Harvey, 151 N.J. 117, 181 (1997);  see also N.J.R.E. 104(a);  Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 104 (2010).   On this score, a defendant may not request a trial court to take a certain course of action, such as here not convening a Wade hearing, take his chance on the outcome of the trial, and “if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.”  State v. Ramseur, 106 N.J. 123, 282 (1987);  see also N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010);  State v. Simon, 79 N.J. 191, 205 (1979) (“Trial errors originating with defendants ordinarily cannot serve as a vehicle for reversal on appeal.”).

Here, defendant, after conferring with counsel, voluntarily and knowingly withdrew his request for a Wade hearing, opting instead for the opportunity to cross-examine the witnesses afresh at trial as to their out-of-court and in-court identifications.   This intentional and self-initiated relinquishment of a known trial right effectively bars defendant's appellate challenge to the court's failure to conduct a Wade hearing sua sponte.

In any event, even though the nature of the show-up here may be considered “inherently suggestive” because both Viera and Schoenberger were brought in the same police car to view a single suspect in police custody, defendant suffered no prejudice from the failure to convene a Wade hearing.   In the first place, identification was not really in issue since defendant admitted to being present at the scene.   Moreover, we are satisfied, based on the proofs, that the identifications here were reliable and did not result in a substantial likelihood of misidentification.   In particular, the show-up took place shortly after the offense and both the victim's and witness's identifications corroborated each other.   Both had ample opportunity to observe defendant and were certain of their identifications.   Based on the totality of the circumstances, we conclude that the trial court properly admitted the out-of-court identifications of defendant.

Given this determination, we reject defendant's claim of ineffective assistance of counsel.   Although the resolution of such a claim is generally reserved for post-conviction relief, State v. Preciose, 129 N.J. 451, 462 (1992), it may be decided on direct appeal where not dependent on evidence outside the record.   Here, for reasons already mentioned, defendant has not established either that:  but for counsel's withdrawal of the request for a Wade hearing, evidence of the out-of-court identifications would not have been admitted;  or but for the admission of the out-of-court identifications he would not have been convicted of armed robbery.   See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 58 (1987).

II.

Defendant next contends the court erred in admitting his confession, in violation of Miranda, supra.   We disagree.

As noted, while being advised of his Miranda rights, defendant wrote “yes” and initialed next to each right as it was explained to him.   Before signing the final line on the Miranda form, defendant engaged in the following colloquy with Detective Wilson:

Wilson:  Are you willing to talk to me about what happened this afternoon.

Defendant:  For what.   What's that helping me out?

Wilson:  Well, for one, maybe you could tell me who has the actual gun

Because I understand that you ․

Defendant:  He has the gun.

Wilson:  Right, and I understand that, before I can talk to you, I need, these are your rights, and you either waive your rights and agree to talk to me, and I can explain all that to you, and again if you sign the waiver form and you decide after we have our discussion that you don't want to talk any more you can end the discussion, you just tell me that you don't want to talk any more.   It's that simple, because I know what the cab driver tells me about the two people and who had the gun, alright, that's why I would like to know who the second person is, all that does is benefit you.

Defendant:  From what?

Wilson:  As not being the guy with the gun.   There is someone out there with a gun, and if it's on the street, if it's laying out there somewhere by someone's house because it was stolen.

Defendant:  Well no, he has it on him.

Wilson:  Ok, well I don't know that, ok, that's why we do this, and again, if we do the rights and you decide that after I explain everything to you, if you decide that you don't want to talk to me you just say that you don't want to talk to me, but you can just listen to what I have to say, am I correct, ok.   By signing that form, all it says is that is that you're willing to talk, and you can just sit there and listen to what I'm going to tell you about what I know about this incident this afternoon, and if you decide that you would rather tell me who the person was that got away with the gun, and maybe where I can recover the victim's wallet all that goes in favor for you.

Defendant:  All that.

Wilson:  But, before you can talk to me, you need to sign that form.

Defendant:  Sign right here.

Wilson:  Sign it, and date it.   Today is the 29 th.

Wilson:  [Unintelligible] Sign it.   I'm sorry.   Again, you know, anytime you decide if you want our conversation [to end] you just say don't want to talk to me no more, you can end it, that's on you, you can stop it at any time.   Today's the 29 th.

Defendant then signed the Miranda form and the interrogation proceeded, during which he admitted participating in the robbery while his cohort was armed.

At the Miranda hearing, defendant argued that his confession was involuntary because it was the result of false assurances by the police that providing information would benefit him and was made before he signed the Miranda form.   The trial judge disagreed and, denying defendant's suppression motion, reasoned:

I mean, because the police officer very well tells [defendant] look, I can't give you any guarantees about anything, about getting out of jail or anything else․  He's just trying to answer the guy's-he's trying to answer your client's question.

[The detective] advised [defendant] of his rights.   Your client in writing said he

understood. He seemed very eager to tell

․ his side of what went on.   The officer made clear that bail was not his issue, it was up to a judge.   He repeatedly told your client ․ at least three or four times he said to him any time you want to stop you just tell me and it will stop.   You want to listen to what I have to say and then you don't want to say anything, just say I don't want to say anything.   There's nothing in the record indicating that your client was under the influence, and there-nothing from the DVD indicates that he's-he's under the influence, and there's been no testimony.   It's been submitted to me on a stipulated record of S-1, 2 and 3. On this record I find that he was advised of his Miranda warnings, knowingly and

voluntarily waived them, and that he was not coerced in any way․

We agree.

The Fifth Amendment right against self-incrimination, applicable to the States through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L. Ed.2d 653, 658 (1964), applies to persons subjected to custodial interrogation.  Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L. Ed.2d at 706.   A statement provided in custody during interrogation is not admissible unless it is preceded by a knowing, intelligent, and voluntary waiver of Miranda rights.  State v. DiFrisco, 174 N.J. 195, 235 (2002), cert. denied, 537 U.S. 1220, 123 S.Ct. 1323, 154 L. Ed.2d 1076 (2003);  State v. Cooper, 151 N.J. 326, 354 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L. Ed.2d 681 (2000);  State v. Knight, 183 N.J. 449, 461 (2005).   New Jersey utilizes the “totality of the circumstances” test to determine the validity of a waiver.  Knight, supra, 183 N.J. at 462.   The factors include personal characteristics such as the defendant's age, education, and intelligence, as well as indicators of the nature of the interrogation, such as the length in detention and whether physical or mental exhaustion were involved in obtaining the confession.   Id. at 462-63.   Courts also consider a defendant's previous interactions with law enforcement and the length of time between the administration of the warnings and the given statement.  Id. at 463.   In New Jersey, the burden is upon the State to prove the validity of a Miranda waiver beyond a reasonable doubt.  State v. O'Neill, 193 N.J. 148, 168 n.12 (2007).

“Moreover, a misrepresentation by police does not render a confession or waiver involuntary unless the misrepresentation actually induced the confession.”  Cooper, supra, 151 N.J. at 355 (police “misrepresentations alone are usually insufficient to justify a determination of involuntariness or lack of knowledge”);  see Knight, supra, 183 N.J. at 463 (“ ‘use of a psychologically-oriented technique ․ is not inherently coercive’ ”) (citations omitted);  State v. Galloway, 133 N.J. 631, 655 (1993) (“The fact that the police lie to a suspect does not, by itself, render a confession involuntary.”) (citations omitted).

Here, we discern no meaningful significance to the fact that defendant made the incriminating statement (that the other robber possessed the gun) prior to signing the final line on the Miranda form.   The statement was rendered after defendant was advised of his Miranda rights, wrote “yes” and initialed the provisions of the waiver form.   Clearly, defendant was aware of his rights when he implicated his confederate and himself in the armed robbery.

Equally clear is that the incriminating statement was voluntary and of defendant's own free will.   As noted by the trial judge, no guarantees, assurances or misrepresentations were made by the police officer and the mere suggestion that talking to the police may be beneficial to defendant does not in itself render the confession involuntary, coerced, or induced.   But not only was defendant's initial statement voluntary, it was also volunteered.   “[V]olunteered statements of any kind are not barred by the Fifth Amendment․”  Miranda, supra, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L. Ed.2d at 726.   Defendant's original damaging admission implicating his cohort was made in the final stages of executing the Miranda form, did not occur during interrogation, and was spontaneous and not responsive to the officer's threshold inquiry as to whether defendant desired to speak with him.   See, e.g., State v. Barnes, 54 N.J. 1 (1969), cert. denied, 396 U.S. 1029, 90 S.Ct. 580, 24 L. Ed.2d 525 (1970).   Under the circumstances, we discern no error in the admission of defendant's incriminating statements.

III.

Lastly, defendant contends the trial court erred in denying his request to enter a guilty plea after the plea cut-off date and shortly before trial.   Briefly, by way of background, on September 21, 2006, defendant pled guilty to first-degree robbery in return for the State's agreement to dismiss the remaining counts of the indictment and to recommend that he be sentenced as a second-degree offender to a five-year prison term subject to an eighty-five percent parole ineligibility period.   Eight months later, on May 11, 2007, defendant moved to withdraw his guilty plea for reasons not readily apparent on the record.   The court granted this request and set July 23, 2007 as the trial date, noting that “once I get that trial memo and give you a trial date there's going to be no more plea negotiations, the 5, 85 percent is history, and you're either going to trial and hope for the best or you're going to plead guilty to the whole indictment with no deal.”   At the commencement of trial, defendant attempted to plead guilty, citing the so-called emergence of a new witness, Brian Schoenberger.   As the matter was well beyond the plea cut-off date, the judge would not allow a negotiated plea.

On appeal, defendant contends the court violated Rule 3:9-3(d) in imposing a plea cut-off when pre-trial motions remained unresolved and because of a material change in circumstances occasioned by the discovery of a new identification witness.   We disagree.

Rule 3:9-3(g) provides:

After the pretrial conference has been conducted and a trial date set, the court shall not accept negotiated pleas absent the approval of the Criminal Presiding Judge based on a material change of circumstance, or the need to avoid a protracted trial or a manifest injustice.

Commentary to this rule notes that a

“material change of circumstances” means a change occurring after the pretrial conference that strengthens or weakens the case of either the prosecution or the defense sufficiently to warrant a change in their plea-bargaining position.   It may be either a change in fact or in the knowledge of counsel.   Some typical examples that may constitute material change of circumstances are when new charges are filed after the plea cut-off has been imposed, a justifiable change of attorney has occurred, a witness becomes no longer available, a mistrial or hung jury occurs, or some evidence is newly discovered.   However, a change that would ordinarily have been anticipated by a reasonably competent prosecutor or defense attorney, including some of the foregoing examples, is not material, nor is a change that results from counsel's lack of ordinary diligence.

[Pressler, Current N.J. Court Rules, comment on R. 3:9-3 (2010).]

We do not view the fact that Schoenberger was listed as a testifying witness in the weeks before trial as a material change in circumstance.   Defendant was afforded discovery early on, was well aware of the identity of the eyewitness, and should not have been surprised that he would be called to testify.   So too, the fact that pre-trial motions were outstanding at the time does not mandate acceptance of a guilty plea at the start of trial.   Defendant was afforded ample opportunity to consider the State's proposed plea bargain and, in fact, had accepted the State's offer.   He made a knowing and voluntary decision to withdraw his negotiated plea despite the fact that it was at the lowest end of the downgraded second-degree range and with full knowledge that once his withdrawal request was accepted, the State's generous plea offer was “off the table and will never appear again.”   Under the circumstances, we find no abuse of judicial discretion in rejecting defendant's last-minute attempt to enter a guilty plea.

Affirmed.

FOOTNOTES

FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

FN2. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967)..  FN2. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967).

FN3. It appears defendant contested only the admission of Schoenberger's identification and now on appeal challenges both Schoenberger's and Viera's identifications..  FN3. It appears defendant contested only the admission of Schoenberger's identification and now on appeal challenges both Schoenberger's and Viera's identifications.

FN4. The following colloquy occurred between the court, counsel and defendant:Defense Counsel:  I've discussed that with[defendant], Your Honor, and he has agreed that we can withdraw the request for the Wade hearing with the understanding that when Mr. Schoenberger testifies I would be able to cross-examine him as to the reliability of his identification in front of the jury.The Court:  All right.   That goes without saying.  [Defendant], is that correct?Defendant:  Yes.The Court:  You had enough time to talk to your attorney about it?Defendant:  Yes.The Court:  And you made this decision voluntarily after discussing it with your attorney?Defendant:  Yes..  FN4. The following colloquy occurred between the court, counsel and defendant:Defense Counsel:  I've discussed that with[defendant], Your Honor, and he has agreed that we can withdraw the request for the Wade hearing with the understanding that when Mr. Schoenberger testifies I would be able to cross-examine him as to the reliability of his identification in front of the jury.The Court:  All right.   That goes without saying.  [Defendant], is that correct?Defendant:  Yes.The Court:  You had enough time to talk to your attorney about it?Defendant:  Yes.The Court:  And you made this decision voluntarily after discussing it with your attorney?Defendant:  Yes.

PER CURIAM