Retrial for alleged Morris County sex attacker

Jury selection is scheduled to start Monday in Morristown for the retrial of a former Vernon carpenter who will represent himself on charges of sexually assaulting a woman outside a Butler bagel shop in 2007.

A state Superior Court judge in March ruled that Andrew W. Pena, now 48, can act as his own lawyer to defend himself against charges he sexually attacked a then-19-year-old woman on Jan. 28, 2007, at the rear of G&A Bagels.

However, Elizabeth Martin, Morris County deputy assistant public defender, will act as stand-by counsel for Pena and is expected to cross-examine the alleged victim in place of Pena.

In March, Judge Robert Gilson, who has since been assigned to the  appellate division, granted Pena's request to act as his own lawyer after questioning him at length on whether he understood the consequences of defending himself and the necessity of following judicial orders and court rules at trial.  Pena had told the judge he learned about trial protocol while he was on trial and after his conviction, which was overturned.

The retrial is expected to start Monday before Superior Court Judge Stephen Taylor with jury selection. Assistant  Morris County Prosecutor Christopher Schellhorn is representing the state.

"It's not the prosecutor or a forced-upon public defender who would suffer. This is a life sentence for me, udge," Pena said in March in outlining his reasons for wanting to act as his own counsel.

A Morris County jury in 2009 found Pena guilty of sexually assaulting a woman outside G&A Bagels on Route 23 in Butler on Jan. 28, 2007. He was sentenced in December 2009 to 27 years nine months in prison,  but in December a state appeals court reversed his conviction because of  errors made by the trial court judge. The direct evidence used in the first trial was not a reason for the reversal.

Pena remains charged with aggravated sexual assault, burglary, criminal sexual contact and sexual assault. He reportedly was sweeping snow from the front of the shop though he wasn't an employee and approached the woman  in a car as she waited for friends to emerge from the bagel shop. The victim said he asked her to move the vehicle to the rear of the store to avoid blocking other cars.

The woman contends that after she moved the car, she was approached by a person she later identified as Pena and was sexually assaulted. Pena at first denied to police that he was at the shop, but then said he was, and that his fingerprint was on her car because he touched it while walking in the snowy parking lot. He has maintained he did not assault the woman.

   Staff Writer Peggy Wright: 973-267-1142; pwright@GannettNJ.com.