STATE OF NEW JERSEY VS. NATASHA MALAVE(13-11-3357, CAMDEN COUNTY AND STATEWIDE), A-2408-15T2

Background

Hoens, a South Brunswick Fire Commission official, diverted public funds to his personal account during 2011–2012 and later sought to make restitution after inheriting funds.
He consulted a private criminal-defense lawyer (first attorney) before any charges; provided a recorded statement to the Middlesex County Prosecutor's Office after allegedly being told there was a "gentlemen's agreement" limiting consequences; $90,000 was placed in the attorney's escrow.
A criminal complaint and then a grand-jury indictment followed, charging multiple counts including second-degree theft and official misconduct.
The first attorney was relieved (fee dispute) pre-indictment; Hoens was represented post-indictment by a public defender (second attorney).
Hoens pleaded guilty under a written plea agreement to two counts, was sentenced to five years’ imprisonment with five years parole ineligibility and ordered to pay $736,847.75 restitution; he did not appeal.
Hoens later moved to withdraw his plea post-sentencing, alleging ineffective assistance by both prior attorneys and claiming the plea was involuntary; the trial court denied the motion without an evidentiary hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hoens is entitled to withdraw his guilty plea under Slater factors	State: Slater factors not satisfied; no colorable innocence; plea was negotiated and voluntary	Hoens: Plea involuntary due to counsel failures; meets Slater factors, especially nature/strength of reasons	Court remands for evidentiary hearing to further develop factual record and reassess Slater factors, particularly the second factor
Whether first attorney provided constitutionally ineffective assistance for pre-charge conduct (arranging recorded interview, alleged "gentlemen's agreement")	State: No proof of an enforceable agreement; constitutional right to counsel may not attach pre-charge	Hoens: First attorney misadvised him and failed to protect interests, inducing the incriminating recorded statement	Court: Facts not developed; remand for testimony/documents to resolve what first attorney told Hoens and whether ineffectiveness claims can be pursued; court flagged uncertainty whether Sixth Amendment claims lie for pre-charge representation
Whether second attorney provided ineffective assistance at plea/sentencing (coercion into plea, failure to press Rice argument for lower sentence)	State: Plea colloquy showed voluntariness; sentencing within negotiated range; Hoens understood terms	Hoens: Second attorney coerced plea and failed to argue for one-degree lower sentence under Rice	Court: Declined to decide on appeal; ordered remand so trial court can consider second-attorney claims after factual development
Whether Post-Conviction Relief (PCR) is available for pre-indictment ineffective assistance claims	State: Constitutional right to counsel normally attaches at formal charge; pre-charge claims may not be viable (citing Kirby/Claudio)	Hoens: Arguably can raise Strickland-type claims to challenge plea voluntariness arising from pre-charge counsel's conduct	Held: Court expressed substantial doubt that Sixth Amendment ineffectiveness claims apply pre-charge and instructed trial court to consider this legal issue on remand if necessary

Key Cases Cited

State v. Slater, 198 N.J. 145 (N.J. 2009) (sets four-factor test for plea-withdrawal motions)
State v. Munroe, 210 N.J. 429 (N.J. 2012) (discusses weight of Slater factors and deference to trial court)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for evaluating ineffective assistance of counsel)
State v. Fritz, 105 N.J. 42 (N.J. 1987) (applying Strickland principles in New Jersey)
Kirby v. Illinois, 406 U.S. 682 (U.S. 1972) (Sixth Amendment right to counsel generally attaches at or after formal charges)
State v. Sanchez, 129 N.J. 261 (N.J. 1992) (discusses when constitutional counsel rights attach)
Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992) (holds no Sixth Amendment right to counsel for alleged pre-charge attorney deficiencies leading to police questioning)
State v. Brito, 345 N.J. Super. 228 (App. Div. 2001) (remand warranted where trial court misapprehended nature of proceedings)
State v. Rice, 425 N.J. Super. 375 (App. Div. 2012) (discusses circumstances to seek a sentence one degree lower)
Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (custodial-interrogation warnings)