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March 23, 2026 Get Citation Alerts Download PDF Add Note

State of New Jersey v. Ashley Maldonado

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-1170-24

• Precedential Status: Non-Precedential

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (387)

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Combined Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-1170-24

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ASHLEY MALDONADO,

Defendant-Appellant.

---

Argued February 5, 2026 – Decided March 23, 2026

Before Judges Mawla and Puglisi.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 14-03-0137.

Kayla E. Rowe, Designated Counsel, argued the cause
for appellant (Jennifer N. Sellitti, Public Defender,
attorney; Kayla E. Rowe, on the briefs).

Ali Y. Ozbek, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Ali Y. Ozbek, of counsel and on
the brief).

PER CURIAM
Defendant Ashley Maldonado appeals from a December 13, 2024 order

denying her motion to enforce an oral modification of her plea agreement or in

the alternative, to withdraw her guilty plea; and a January 29, 2025 amended

judgment of conviction.1 We affirm the denial of her motion to enforce an oral

modification of the plea agreement and the amended judgment of conviction.

Because the court did not address defendant's motion to withdraw her guilty

plea, we reverse and remand for further proceedings.

I.

Defendant was one of seven co-defendants indicted for offenses arising

out of a sexual assault that occurred on November 5, 2012. She was charged

with: third-degree invasion of privacy – recording a sex act without consent,

N.J.S.A. 2C:14-9(b) (count thirty-one); first-degree aggravated sexual assault –

force/coercion, N.J.S.A. 2C:14-2(a)(5) (count thirty-three); third-degree

aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (counts thirty-five,

thirty-nine, forty-three, and fifty-three); first-degree aggravated sexual assault –

armed with weapon, N.J.S.A. 2C:14-2(a)(4) (count thirty-seven); first-degree

1
Although defendant's notice of appeal also lists the December 13, 2024 order
denying her motion for reconsideration, her brief does not address this order.
"An issue not briefed on appeal is deemed waived." Woodlands Cmty. Ass'n,
Inc. v. Mitchell, 450 N.J. Super. 310, 319 (App. Div. 2017) (quoting
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)).
A-1170-24
2
aggravated sexual assault – victim helpless, incapacitated, N.J.S.A. 2C:14-

2(a)(7) (count forty-one); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1)

(count forty-five); third-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(d) (count forty-seven); fourth-degree unlawful possession of

a weapon, N.J.S.A. 2C:39-5(d) (count forty-nine); first-degree aggravated

sexual assault during a kidnapping, N.J.S.A. 2C:14-2(a)(3) (count fifty-one);

second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count fifty-five); and

fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count fifty-seven).

She was also charged with conspiracy to commit these individual offenses,

N.J.S.A. 2C:5-2 (counts thirty, thirty-two, thirty-four, thirty-six, thirty-eight,

forty, forty-two, forty-four, forty-six, forty-eight, fifty, fifty-two, fifty-four, and

fifty-six).

On May 16, 2017, defendant pleaded guilty to count forty-one, first-

degree aggravated sexual assault, pursuant to a plea agreement. In exchange for

her guilty plea, the State agreed to recommend a five-year sentence in the

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

Parole Supervision for Life (PSL), N.J.S.A. 2C:43-6.4, and Megan's Law,

N.J.S.A. 2C:7-1 to -23. The plea form indicated: "Defendant further agrees to

cooperate and testify truthfully in trial/hearings of co-defendants." Prior to

A-1170-24
3
accepting the plea, the judge reviewed pertinent sections of the plea form,

confirming with defendant she "agree[d] to cooperate with the State and testify

truthfully with regard to the trials and/or hearings of the co-defendants in [the]

case."

Line number twenty-one of the plea form, which states: "List any other

promises or representations that have been made by you, the prosecutor, your

defense attorney, or anyone else as a part of this plea of guilty," was left blank.

Question number twenty-two asks: "Have any promises other than those

mentioned on this form, or any threats, been made in order to cause you to plead

guilty?" to which the plea form indicated "No." The judge confirmed with

defendant there were no "promises or representations . . . made to [her] by

anyone in connection with [the] guilty plea other than what [they] talked about

in open court [that day]."

Defendant's sentencing date was adjourned several times while her co-

defendants' matters were tried. The first co-defendant's trial ended in a mistrial

resulting from a hung jury and was retried. Over the course of the next five

years, defendant testified at the trials of three co-defendants, all of which

resulted in guilty verdicts.

A-1170-24
4
Prior to her sentencing, defendant moved to enforce an oral modification

to the plea agreement or in the alternative, to withdraw her guilty plea. In

support of the motion, defense counsel filed a certification contending "members

of the Passaic County Prosecutor's Office (PCPO) made oral representations to

[defendant] that she would receive a probationary sentence based on her

cooperation and testimony in the prosecution of the co-defendants." Counsel

further certified:

I affirmatively advised defendant that she would
receive a probationary sentence. I made this
representation to [defendant] after speaking to [Senior]
Assistant Prosecutor [in Charge (SAPIC)] Anneris
Hernandez when I learned she was leaving PCPO to
accept a position in a private law firm. [SAPIC]
Hernandez indicated to me that although she was
leaving the office she would make certain that
[defendant]'s assistance was acknowledged and her
cooperation rewarded. [SAPIC] Hernandez never used
the word probation[,] but the inference of no jail time
was clear from our conversation. Subsequent to my
conversation with [SAPIC] Hernandez I advised
Assistant Prosecutor [(AP)] Melissa Simsen when she
was assigned [defendant]'s case that she should contact
[SAPIC] Hernandez in regards to the representations
made to [defendant].

In response, the State submitted written memoranda from various PCPO

staff members. PCPO victim advocate Janett Rubianes-Lopez stated:

I have a vague recollection of speaking with an [AP],
in passing, who said that . . . defendant . . . would be

A-1170-24
5
getting probation. I have searched the [victim witness]
physical file, and the notes in Infoshare for any
documented notes about this conversation; however,
there are none in either location that reflect either this
brief mention of a probation resolution by the AP, or
any conversations discussing [defendant] receiving this
resolution with the victim . . . .

PCPO Detective Cynthia Henriquez recounted she was in a trial

preparation meeting with SAPIC Hernandez and defendant on May 27, 2022.

She recalled Hernandez "mentioned something about probation for [defendant]

provid[ed] the victim[] . . . agreed." Detective Henriquez remembered details

of the meeting, including the weather, and further stated:

It should be noted that since the departure of
SAPIC Hernandez, I was asked several times by PCPO
legal staff if I remembered the offer presented to
[defendant] by SAPIC Hernandez and my answer has
always been consistent in the fact that I do recall SAPIC
Hernandez offering [defendant] something involving
probation. I recall this information as [defendant] was
pregnant at the time and they spoke about her being
pregnant and/or having her baby while in prison.

PCPO Lieutenant Anthony M. Aceste generated three memoranda

memorializing conversations he had with former senior staff members involved

in defendant's case: former Chief Assistant Prosecutor (CAP) Lisa Squitieri,

who handled the case just prior to her retirement in 2017; former Executive First

A-1170-24
6
Assistant Prosecutor (EFAP) Gina Pfund, who inherited the case from Squitieri;

and SAPIC Hernandez.

CAP Squitieri executed the plea agreement with defendant. She told

Aceste "her agreement" was five years, and she never said anything to defense

counsel about probation. She also confirmed the agreement was for defendant

to testify at one trial because it was important for one particular co-defendant's

case, but the remainder of the co-defendants could have been tried without

defendant's testimony. Squitieri said defendant "did very well, and it was

important [defendant testify at trial] because the victim did not remember

anything."

CAP Squitieri further recalled that after she retired, she had phone

conversations with EFAP Pfund, who was handling the case at that time. During

their discussions about trial strategy, Pfund told her defendant "was being

difficult and was reluctant to testify at the second trial." Squitieri told Pfund to

"make it worth her while," meaning they should offer defendant probation to

secure her testimony. Pfund told Squitieri "she intended to recommend a

probationary sentence for [defendant]," which had already been approved by the

county prosecutor.

A-1170-24
7
CAP Squitieri stated she attended trial as an observer in 2019 and

encountered defendant in the hallway. Defendant told her "the prosecutors had

promised her probation, but it was not in writing and . . . she was nervous she

would not receive that sentence." She "assured [defendant] that if they promised

probation that she would receive [it] and encouraged her to focus on testifying."

EFAP Pfund told Lieutenant Aceste defendant "did very well for her

during trial," but she did not discuss any additional agreement "outside the four

corners" of the plea agreement. She "never promised" defense counsel or

defendant "anything beyond the agreement" and "would be shocked if [defense

counsel] said" otherwise. Pfund also said "she never had a conversation

with . . . [CAP Squitieri] seeking anything lower" than the five-year term.

SAPIC Hernandez stated she did not believe any other prosecutors

"promised [defendant] probation," and she did not mention probation to defense

counsel or defendant. Hernandez never heard EFAP Pfund mention anything

about probation, but said "the issue of 'what would happen to [defendant]' was

always a question." She also agreed defendant was "instrumental" in securing a

guilty verdict because the video of the incident "was not self-explanatory."

The State also produced an August 9, 2023 text message from SAPIC

Hernandez to AP Simsen that said:

A-1170-24
8
G[ood ]m[orning]! Hope you are well. [Defendant]
was instrumental in securing guilty verdicts for THREE
of the assailants who sexually assaulted [the victim].
Two of the three are serving a lengthy prison sentence
and the third is a dangerous fugitive, which I am sure
PCPO is expending resources to find for the numerous
crimes he was convicted for last June.

Before I inherited the case and before I tried the two
lengthy trials, . . . [CAP] Squitieri had entered into an
agreement with defense [counsel] to give [defendant] a
sentence that would NOT include prison time if she
cooperated with the [S]tate. [Defendant] cooperated
with the State extensively and was essential in securing
very important convictions in this matter.

I hope the State does the right thing. Please reach out
to me if you need more information.

Have a great day.

On February 6, 2024, the first motion judge considered argument on the

motion and decided it merited a testimonial hearing because the written record

was insufficient "to make a reasonable determination." She needed "a better

understanding of the situation before [she could] properly rule out of fairness to

both parties." The judge set a testimonial hearing date and ordered the parties

to exchange witness lists and exhibits. On April 17, 2024, the judge entered an

order recusing herself from further proceedings because "the State ha[d]

identified [her] as a potential witness." The matter was then transferred to

another judge.

A-1170-24
9
On June 11, 2024, the second judge conferenced the matter with counsel

and then confirmed on the record his "sentencing intentions, which [we]re to

sentence per the written plea agreement." Notwithstanding the judge's

pronouncement, defendant subsequently filed a certification in further support

of her motion, describing a conversation she had with CAP Squitieri the day of

the plea agreement as follows:

During that conversation, I understood that my plea
deal was for [five] years with [eighty-five percent] in
State prison but was also told that the offer could be
amended to probation later, depending on how things
went with my testimony and cooperation at the co-
defendants' trial.

I asked [CAP] Squitieri why it could not be written on
paper that I might receive probation, because I was
worried about my future, she stated to me I wouldn't
seem like a credible witness and that the jury could
think that I was testifying to anything just so I would
not go to prison.

I understood that I would have to go to meetings with
the prosecutor and testify at trial but I did not know that
I was going to have to testify at more than one trial.

If I had known I was going to have to testify multiple
times, I may not have agreed to that much time and may
have negotiated a different plea agreement.

During my preparation for the subsequent,
unanticipated trials, I was told that I would get
probation due to my cooperation but that I still had to
testify that I was going to go to prison for [five] years

A-1170-24
10
because I would not be believable if I said I was getting
probation.

[(numbering omitted).]

The judge denied defendant's motion to enforce the purported oral

modification to the plea agreement. He found only two of the PCPO staff

members supported defendant's claim of a revised plea agreement for a

probation sentence: Detective Henriquez's recollection that SAPIC Hernandez

"mentioned something about probation," which she believed to be an offer of

probation; and CAP Squitieri's conversations with EFAP Pfund about a

probation deal being approved by the county prosecutor, and Squitieri's

subsequent conversation with defendant. The judge also noted Hernandez told

the prior judge "she left a long email in the file when she retired without saying

anything about its contents; it suggests that it would support the claim of a side

deal for probation." However, the State could not locate the email.

After noting plea agreements are governed by principles of contract law,

the judge found:

A modification of this particular form of contract[]
would require the transmittal of a clear offer, in
writing[,] and a clear acceptance of same, in writing.
The consideration is the reduced exposure in exchange
for testimony. A modification here would have
required some elaborate legal gymnastics to make a
guilty plea on first[-]degree [a]ggravated [s]exual

A-1170-24
11
[a]ssault into a [thi]rd[-]degree (or possibly
second[-]degree) offense, for [p]robation to be
considered. The situation here does not come close to
supporting the notion that, while there may have been
some contradictory backroom talk by an AP or retired
AP, there was an effective modification of the
agreement before defendant's testimony in any of the
three trials.

The notion that a promise allegedly made by
[SAPIC] Hernandez (who was an observer) to a defense
attorney at the conclusion of the third and last trial in
these matters to "make certain that [defendant's]
assistance was acknowledged and her cooperation
rewarded" could qualify as a valid modification of the
formal plea agreement is frankly, absurd.

. . . [D]efendant had her reward baked into the
process from the outset: she pleaded "[g]uilty" to a
first-degree offense wherein she had exposure of [ten to
twenty] years in prison in exchange for sentencing at
the bottom of the second-degree range, [five] years,
conditioned based upon her providing truthful
testimony and cooperation. She did her job, so she is
entitled now to receive the benefit of that plea bargain
agreement.

[(eleventh alteration in original).]

Although the motion to withdraw her guilty plea was briefly discussed in court,

neither the judge's opinion nor the confirming order addressed this relief.

After defendant's unsuccessful motion for reconsideration, she was

sentenced on December 11, 2024. Pursuant to N.J.S.A. 2C:44-1(a), the judge

found aggravating factor nine ("[t]he need for deterring the defendant and others

A-1170-24
12
from violating the law"). Pursuant to N.J.S.A. 2C:44-1(b), the judge found

mitigating factors seven ("[t]he defendant has no history of prior delinquency or

criminal activity or has led a law-abiding life for a substantial period of time

before the commission of the present offense"); eight ("[t]he defendant's conduct

was the result of circumstances unlikely to recur"); nine ("[t]he character and

attitude of the defendant indicate that the defendant is unlikely to commit

another offense"); twelve ("[t]he willingness of the defendant to cooperate with

law enforcement authorities"); and fourteen ("[t]he defendant was under

[twenty-six] years of age at the time of the commission of the offense"). The

judge determined "the mitigating factors preponderate[d] the aggravating

factor," and sentenced defendant to five years in prison in accordance with the

plea agreement.

Defendant raises the following issues on appeal:

POINT I

THE TRIAL COURT SHOULD HAVE ENFORCED
[THE] PCPO'S VERBAL REPRESENTATIONS OF
PROBATION THAT INDUCED [DEFENDANT]'S
CONTINUED COOPERATION AND TESTIMONY
ACROSS MULTIPLE TRIALS.

A. The spoken agreement between [the] PCPO
and [defendant] constitutes an enforceable express
contract.

A-1170-24
13
B. Even if the written plea agreement was a fully
integrated contract, the subsequent prosecutor's offer of
probation in exchange for [defendant]'s testimony at the
subsequent trials constitutes an express modified plea
agreement.

C. [Defendant]'s specific performance enforcing
an implied contract and sentencing her to probation.

POINT II

IN THE ALTERNATIVE, THE COURT ABUSED ITS
DISCRETION IN DENYING [DEFENDANT]'S
MOTION TO RETRACT HER GUILTY PLEA, AND
SHE SHOULD BE ALLOWED TO DO SO.

A. The sentencing court erred in denying
[defendant]'s motion to retract her guilty plea.

B. This [c]ourt should rescind the prior plea
agreement, on the basis of its illegality.

POINT III

IN THE ALTERNATIVE TO GRANTING RELIEF
NOW, AN EVIDENTIARY HEARING SHOULD BE
HELD, BECAUSE THE SENTENCING JUDGE
ERRED IN REVERSING THE DECISION OF HIS
CO-EQUAL SISTER JUDGE WHEN HE REFUSED
TO HOLD THE PREVIOUSLY ORDERED
EVIDENTIARY HEARING.

A. The original order for a hearing must be
honored.

B. The situation requires an evidentiary hearing,
at a minimum.

A-1170-24
14
POINT IV

THE SENTENCING COURT'S ANALYSIS OF THE
AGGRAVATING AND MITIGATING FACTORS
WAS IMPROPER AND SHOULD BE
RECALIBRATED TO RECOGNIZE
[DEFENDANT]'S CURRENT PERSONAL
CHARACTERISTICS AND CIRCUMSTANCES.

POINT V

THE FACTUAL BASIS DOES NOT SATISFY THE
ELEMENTS OF ACCOMPLICE LIABILITY,
BECAUSE [DEFENDANT]'S CONDUCT WAS NOT
THAT OF AN ACCOMPLICE.

II.

A.

"The plea bargain system is founded on the '"mutuality of advantage" it

affords to both the defendant and the State.'" State v. Williams, 277 N.J. Super.

40, 46 (App. Div. 1994) (quoting State v. Taylor, 80 N.J. 353, 361 (1979)).

"Defendant obtains the benefit of reduced penal exposure while the State is

provided with the certainty of some punishment and the conservation of limited

resources." Ibid. "This contractually-based principle necessarily requires that

both parties to the bargain voluntarily agree to its term." Ibid. "It requires a

meeting of the minds upon the negotiated pleas and is an executory agreement

since it depends on the approval of the sentencing court." State v. Smith, 306

A-1170-24
15
N.J. Super. 370, 383 (App. Div. 1997). Because the issue here sounds in

contract, we review de novo the judge's determination the parties did not orally

modify the plea agreement. Serico v. Rothberg, 234 N.J. 168, 178 (2018).

The undisputed facts establish the following. The day of the plea

agreement, defendant had a conversation with CAP Squitieri, wherein they

agreed the five-year recommendation could be later amended to probation,

depending on how defendant testified during trial. Squitieri confirmed the

agreement was for one trial. 2 During the course of preparation for three trials,

including a retrial, there were discussions about defendant's receiving a

probationary sentence.3 Based on defense counsel's conversation with SAPIC

Hernandez, he advised defendant she would receive a probationary sentence.

Even accepting defendant's further assertions as true, the second motion

judge correctly found there was no enforceable oral modification of the plea

agreement. After formation, contracting parties "may, by mutual assent, modify

2
The written plea agreement stated "trial/hearings," indicating a singular trial
and plural hearings, but the plea judge stated plural "trials and/or hearings."
3
The State's recommendation of probation would not bind the sentencing judge
to that outcome, and both parties acknowledge probation is not an authorized
sentence for first-degree aggravated assault. See N.J.S.A. 2C:43-2(g)
(prohibiting a probationary sentence for a defendant convicted of an offense
subject to PSL).
A-1170-24
16
it." Cnty. of Morris v. Fauver, 153 N.J. 80, 99 (1998). Generally, modifications

to a written contract are not required to be made in writing. A "modification

can be proved by an explicit agreement to modify, or . . . by the actions and

conduct of the parties, so long as the intention to modify is mutual and clear."

Ibid.; DeAngelis v. Rose, 320 N.J. Super. 263, 280 (App. Div. 1999).

While a plea agreement is generally governed by contract law, there are

additional requirements above those applicable to a contract between private

parties. A plea agreement must be "placed on the record in open court" per Rule

3:9-3(b). A judge may only accept a plea after questioning the defendant and

determining "there is a factual basis for the plea and that the plea is made

voluntarily, not as a result of any threats or of any promises or inducements not

disclosed on the record, and with an understanding of the nature of the charge

and the consequences of the plea." R. 3:9-2. A judge also has the discretion to

reject a plea agreement. Ibid.

The alleged oral modification was neither placed on the record in open

court nor was it accepted by the court. If the parties intended the plea agreement

to only require defendant's testimony at one trial, this condition was contrary to

the agreement's written terms and the parties' representations during the plea

hearing. Moreso, the modification of the plea agreement to a recommendation

A-1170-24
17
of probation was neither mutual nor clear, as demonstrated by the competing

and conflicting statements. We therefore affirm the judge's denial of defendant's

motion to enforce an oral modification of the plea agreement.

We reach a different conclusion regarding defendant's motion to withdraw

her guilty plea. Motions to withdraw a guilty plea filed at or before the time of

sentencing will be granted in the "interests of justice," R. 3:9-3(e), in the

exercise of the court's discretion, State v. Simon, 161 N.J. 416, 444 (1999).

Before sentencing, courts are to exercise their discretion liberally to allow plea

withdrawals. State v. Smullen, 118 N.J. 408, 416 (1990). In a close case, the

"scales should usually tip in favor of defendant." Taylor, 80 N.J. at 365.

In deciding a motion to withdraw a guilty plea,

judges are to consider and balance four factors . . . : (1)
whether the defendant has asserted a colorable claim of
innocence; (2) the nature and strength of defendant's
reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would result in
unfair prejudice to the State or unfair advantage to the
accused.

[State v. Slater, 198 N.J. 145, 157-58 (2009).]

Although the judge considered the Slater motion to be subsumed by the

motion to enforce the oral modification, we conclude this was an oversight

because the motions are not decided on the same basis. We are further

A-1170-24
18
convinced a testimonial hearing was necessary to decide the Slater motion. "To

see if parties dispute a fact, one need only examine side-by-side the parties'

allegations. Determining thereby if facts are in dispute is a matter of law." State

v. Carrillo, 469 N.J. Super. 318, 333 (App. Div. 2021).

The parties' submissions reveal a host of disputed facts material to the

considerations raised by defendant's motion to withdraw her guilty plea. The

PCPO staff members' statements not only contradicted each other, they

supported defendant's claims the plea agreement was for her testimony during

one trial, after which there were discussions about a recommendation of

probation in exchange for her continued testimony. A hearing would enable the

court to consider the testimony, decide credibility, and make findings of fact

necessary to assess the Slater factors.

B.

For the sake of completeness, we address defendant's argument the

sentencing judge failed to consider mitigating factor four, N.J.S.A. 2C:44-

1(b)(4) ("[t]here were substantial grounds tending to excuse or justify the

defendant's conduct, though failing to establish a defense"), based on her

substance use the night of the offense; and mitigating factor eleven, N.J.S.A.

2C:44-1(b)(11) ("[t]he imprisonment of the defendant would entail excessive

A-1170-24
19
hardship to the defendant or the defendant's dependents"), due to her

responsibility as the primary caretaker of her young children. She also argues

the sentencing judge failed to give proper weight to mitigating factor twelve,

and abused his discretion in finding aggravating factor nine outweighed the

mitigating factors.

We review sentencing determinations under a highly deferential standard.

State v. Fuentes, 217 N.J. 57, 70 (2014). "Appellate review of a criminal

sentence is limited; a reviewing court decides whether there is a 'clear showing

of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting

State v. Whitaker, 79 N.J. 503, 512 (1979)). We defer to the sentencing court's

factual findings and will not "second-guess" them. State v. Case, 220 N.J. 49,

65 (2014). A sentence, therefore, must be affirmed "unless: the sentencing

guidelines were violated; (2) the aggravating and mitigating factors . . . were not

based upon competent and credible evidence in the record; or (3) 'the application

of the guidelines to the facts of [the] case makes the sentence clearly

unreasonable so as to shock the judicial conscience.'" Fuentes, 217 N.J. at 70

(second alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65

(1984)).

A-1170-24
20
Having reviewed the record, we are satisfied the judge did not abuse his

discretion in considering the aggravating and mitigating factors to arrive at the

sentence imposed. He found defendant's intoxication the evening of the sexual

assault was insufficient to establish a mitigating factor. He also declined to find

mitigating factor eleven because, although defendant's incarceration would "no

doubt" cause a hardship, she did not establish an excessive hardship by having

young children. After concluding the mitigating factors outweighed the singular

aggravating factor and finding the plea agreement to be fair and in the interests

of justice, the judge imposed a five-year term, which is the lowest permissible

sentence in the second-degree range. See N.J.S.A. 2C:43-6(a)(2). While we

affirm the sentence, it should not be construed as our view on the outcome of

defendant's motion to withdraw her guilty plea.

C.

Finally, for the first time on appeal, defendant argues the factual basis for

her guilty plea does not satisfy the legal requirements for vicarious or

accomplice liability. We ordinarily decline to consider issues not properly

presented to the trial court unless the jurisdiction of the court is implicated or

the matter concerns an issue of great public importance. Nieder v. Royal Indem.

A-1170-24
21
Ins. Co., 62 N.J. 229, 234 (1973); see State v. Witt, 223 N.J. 409, 418-19 (2015).

Neither circumstance is present in this matter.

Affirmed in part; reversed and remanded in part. We do not retain

jurisdiction.

A-1170-24
22