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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1056-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OLVIN A. AGUILAR,
Defendant-Appellant. ________________________
Submitted September 13, 2021 – Decided September 21, 2021
Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 17-08- 0880.
Michael J. Cennimo, attorney for appellant.
Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Olvin A. Aguilar appeals the denial of his motion to withdraw
his guilty plea to third-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a)(1). He argues:
POINT I
THE [TRIAL] COURT COMMITTED PLAIN ERROR BY DENYING THE MOTION TO WITHDRAW THE GUILTY PLEA BECAUSE THE FACTUAL BASIS WAS INADEQUATE AS A MATTER OF LAW.
POINT II
IF THE SEXUAL CONDUCT ADMITTED TO HERE "AUTOMATICALLY" CONSTITUTED ENDANGERING THE WELFARE OF A CHILD, THERE WOULD BE AN IRRESOLVABLE CONFLICT BETWEEN N.J.S.A. 2C:24-4(a)(1) AND N.J.S.A. 2C:14-2 [ ].
We affirm because the plea record reflects defendant gave an adequate factual
basis that he endangered the welfare of a child through sexual contact that
impaired or debauched her morals.
A Middlesex County grand jury indicted defendant for second-degree
sexual assault by an act of sexual penetration upon M.H., 1 on or between June
1, 2016 and June 30, 2016, when M.H. was at least thirteen years old but less
than sixteen years old, and defendant being at least four years older, N.J.S.A.
1 We use initials for the minor victim to protect her privacy. R. 1:38-3(c)(9).
2 A-1056-19 2C:14-2(c)(4) (count one); fourth-degree criminal sexual contact for the purpose
of sexually arousing or sexually gratifying defendant or to humiliate or degrade
M.H. on or between June 1, 2016 and June 30, 2016, when M.H. was at least
thirteen years old but less than sixteen years old, and defendant being at least
four years older, N.J.S.A. 2C:14-3(b) (count two); and third-degree endangering
the welfare of a child on or between June 1, 2016 and June 30, 2016, when
defendant engaged in sexual conduct with M.H., a child under the age of
eighteen, which would impair or debauch her morals, N.J.S.A. 2C:24-4(a)(1)
(count three).
Nine months later, the State and defendant reached an agreement whereby
defendant pled guilty to third-degree endangering the welfare of a child in
consideration for the dismissal of the two other charges. Defendant gave the
following factual basis for his guilty plea:
[DEFENSE COUNSEL]: Mr. Aguilar, do you know an individual, initials M.H., who was born on October 8th, 2000?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And well in the City of New Brunswick, in the County of Middlesex, did you engage in sexual conduct with M.H.?
3 A-1056-19 [DEFENSE COUNSEL]: And this conduct occurred before she had turned [eighteen]. Is that correct?
[DEFENSE COUNSEL]: And you understand that conduct . . . can impair or debauch the morals of a child under the age of eighteen?
[DEFENDANT]: Yes, I understand.
The State agreed it would recommend defendant serve a three-year prison
sentence, subject to parole supervision for life, N.J.S.A. 2C:43-6.4, and Megan's
Law, N.J.S.A. 2C:7-1 to -23. The plea judge, however, deviated from the State's
recommendation and sentenced defendant to three years of probation,
conditioned on him serving 364 days in the county jail. 2
Almost two years later, when defendant became subject to deportation
proceedings due to his conviction, he moved to withdraw his guilty plea, citing
Rule 3:9-3(e), claiming that he provided an inadequate factual basis for his plea.
Following the State's opposition, defendant's reply brief acknowledged his
motion was incorrectly based on Rule 3:9-3(e), which provides that to withdraw
a guilty plea prior to sentencing is done in the interest of justice. Thus, he asked
2 The sentencing transcript was not provided in the record. Thus, we are unable to ascertain why the judge did not sentence defendant in accordance with the plea agreement.
4 A-1056-19 the court to consider the motion under Rule 3:21-1, which provides that to
withdraw a guilty plea after sentencing requires a showing of manifest injustice.
Following argument, the motion judge, who was not the plea and
sentencing judge, issued an order denying the motion. In her oral decision, the
judge stated she considered the merits of the motion under Rule 3:21-1 and not
Rule 3:9-3(e), as defendant requested in his reply brief. Applying the four-prong
test under State v. Slater, 198 N.J. 145, 157-158 (2009) to determine whether a
defendant can withdraw a guilty plea, the judge found there was no basis to grant
defendant's motion. The crux of the judge's reasoning was that defendant's "plea
transcript clearly show[ed] . . . defendant admitted to engaging in sexual contact
with M[.]H[.] when she was under the age of [eighteen]."
In addition, the judge rejected defendant's argument that his factual basis
was deficient because he did not admit his sexual contact with M.H. involved
aggravating circumstances. The judge ruled the child endangering statute,
N.J.S.A. 2C:24-4(a)(1), did not require the element of aggravating
circumstances for a third-degree offense. The judge also dismissed defendant's
contention that he had to be M.H.'s caretaker to be guilty of the offense because
the statute did not require such a relationship. In sum, the judge found there was
a no manifest injustice in allowing defendant's guilty plea to stand.
5 A-1056-19 Before us, defendant argues his guilty plea was inadequate because "he
admitted only to sexual conduct with an individual younger than eighteen (but
older than sixteen) and did not admit to any other conduct 'which would impair
or debauch the morals of the child,'" a necessary element of N.J.S.A. 2C:24-
4(a)(1). Because there was "no indication of force, threat, coercion[,] or any
relationship[,] either familial or supervisory[,] that would make [him] liable to
a conviction for sexual assault and/or criminal sexual conduct pursuant to
N.J.S.A. 2C:14-2 [ ]," defendant posits there "would be an irresolvable conflict
of [c]onstitutional magnitude to hold him criminally liable [under] N.J.S.A.
2C:24-4[(a)](1) for . . . conduct . . . not criminalized [under] N.J.S.A. 2C:14-2,
. . . [without additional] proof. . . that the sexual conduct in question would tend
to impair or debauch the morals of . . . [M.H.]"
Based on our de novo review, State v. Tate, 220 N.J. 393, 403-04 (2015),
we discern no basis to grant defendant relief. Because "the issue [presented] is
solely whether an adequate factual basis supports a guilty plea, a Slater analysis
is unnecessary." Id. at 404. Contrary to defendant's argument, we agree with
the motion judge that his plea colloquy established that he was guilty of third-
degree child endangering.
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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-1056-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OLVIN A. AGUILAR,
Defendant-Appellant. ________________________
Submitted September 13, 2021 – Decided September 21, 2021
Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 17-08- 0880.
Michael J. Cennimo, attorney for appellant.
Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Olvin A. Aguilar appeals the denial of his motion to withdraw
his guilty plea to third-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a)(1). He argues:
POINT I
THE [TRIAL] COURT COMMITTED PLAIN ERROR BY DENYING THE MOTION TO WITHDRAW THE GUILTY PLEA BECAUSE THE FACTUAL BASIS WAS INADEQUATE AS A MATTER OF LAW.
POINT II
IF THE SEXUAL CONDUCT ADMITTED TO HERE "AUTOMATICALLY" CONSTITUTED ENDANGERING THE WELFARE OF A CHILD, THERE WOULD BE AN IRRESOLVABLE CONFLICT BETWEEN N.J.S.A. 2C:24-4(a)(1) AND N.J.S.A. 2C:14-2 [ ].
We affirm because the plea record reflects defendant gave an adequate factual
basis that he endangered the welfare of a child through sexual contact that
impaired or debauched her morals.
A Middlesex County grand jury indicted defendant for second-degree
sexual assault by an act of sexual penetration upon M.H., 1 on or between June
1, 2016 and June 30, 2016, when M.H. was at least thirteen years old but less
than sixteen years old, and defendant being at least four years older, N.J.S.A.
1 We use initials for the minor victim to protect her privacy. R. 1:38-3(c)(9).
2 A-1056-19 2C:14-2(c)(4) (count one); fourth-degree criminal sexual contact for the purpose
of sexually arousing or sexually gratifying defendant or to humiliate or degrade
M.H. on or between June 1, 2016 and June 30, 2016, when M.H. was at least
thirteen years old but less than sixteen years old, and defendant being at least
four years older, N.J.S.A. 2C:14-3(b) (count two); and third-degree endangering
the welfare of a child on or between June 1, 2016 and June 30, 2016, when
defendant engaged in sexual conduct with M.H., a child under the age of
eighteen, which would impair or debauch her morals, N.J.S.A. 2C:24-4(a)(1)
(count three).
Nine months later, the State and defendant reached an agreement whereby
defendant pled guilty to third-degree endangering the welfare of a child in
consideration for the dismissal of the two other charges. Defendant gave the
following factual basis for his guilty plea:
[DEFENSE COUNSEL]: Mr. Aguilar, do you know an individual, initials M.H., who was born on October 8th, 2000?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And well in the City of New Brunswick, in the County of Middlesex, did you engage in sexual conduct with M.H.?
3 A-1056-19 [DEFENSE COUNSEL]: And this conduct occurred before she had turned [eighteen]. Is that correct?
[DEFENSE COUNSEL]: And you understand that conduct . . . can impair or debauch the morals of a child under the age of eighteen?
[DEFENDANT]: Yes, I understand.
The State agreed it would recommend defendant serve a three-year prison
sentence, subject to parole supervision for life, N.J.S.A. 2C:43-6.4, and Megan's
Law, N.J.S.A. 2C:7-1 to -23. The plea judge, however, deviated from the State's
recommendation and sentenced defendant to three years of probation,
conditioned on him serving 364 days in the county jail. 2
Almost two years later, when defendant became subject to deportation
proceedings due to his conviction, he moved to withdraw his guilty plea, citing
Rule 3:9-3(e), claiming that he provided an inadequate factual basis for his plea.
Following the State's opposition, defendant's reply brief acknowledged his
motion was incorrectly based on Rule 3:9-3(e), which provides that to withdraw
a guilty plea prior to sentencing is done in the interest of justice. Thus, he asked
2 The sentencing transcript was not provided in the record. Thus, we are unable to ascertain why the judge did not sentence defendant in accordance with the plea agreement.
4 A-1056-19 the court to consider the motion under Rule 3:21-1, which provides that to
withdraw a guilty plea after sentencing requires a showing of manifest injustice.
Following argument, the motion judge, who was not the plea and
sentencing judge, issued an order denying the motion. In her oral decision, the
judge stated she considered the merits of the motion under Rule 3:21-1 and not
Rule 3:9-3(e), as defendant requested in his reply brief. Applying the four-prong
test under State v. Slater, 198 N.J. 145, 157-158 (2009) to determine whether a
defendant can withdraw a guilty plea, the judge found there was no basis to grant
defendant's motion. The crux of the judge's reasoning was that defendant's "plea
transcript clearly show[ed] . . . defendant admitted to engaging in sexual contact
with M[.]H[.] when she was under the age of [eighteen]."
In addition, the judge rejected defendant's argument that his factual basis
was deficient because he did not admit his sexual contact with M.H. involved
aggravating circumstances. The judge ruled the child endangering statute,
N.J.S.A. 2C:24-4(a)(1), did not require the element of aggravating
circumstances for a third-degree offense. The judge also dismissed defendant's
contention that he had to be M.H.'s caretaker to be guilty of the offense because
the statute did not require such a relationship. In sum, the judge found there was
a no manifest injustice in allowing defendant's guilty plea to stand.
5 A-1056-19 Before us, defendant argues his guilty plea was inadequate because "he
admitted only to sexual conduct with an individual younger than eighteen (but
older than sixteen) and did not admit to any other conduct 'which would impair
or debauch the morals of the child,'" a necessary element of N.J.S.A. 2C:24-
4(a)(1). Because there was "no indication of force, threat, coercion[,] or any
relationship[,] either familial or supervisory[,] that would make [him] liable to
a conviction for sexual assault and/or criminal sexual conduct pursuant to
N.J.S.A. 2C:14-2 [ ]," defendant posits there "would be an irresolvable conflict
of [c]onstitutional magnitude to hold him criminally liable [under] N.J.S.A.
2C:24-4[(a)](1) for . . . conduct . . . not criminalized [under] N.J.S.A. 2C:14-2,
. . . [without additional] proof. . . that the sexual conduct in question would tend
to impair or debauch the morals of . . . [M.H.]"
Based on our de novo review, State v. Tate, 220 N.J. 393, 403-04 (2015),
we discern no basis to grant defendant relief. Because "the issue [presented] is
solely whether an adequate factual basis supports a guilty plea, a Slater analysis
is unnecessary." Id. at 404. Contrary to defendant's argument, we agree with
the motion judge that his plea colloquy established that he was guilty of third-
degree child endangering.
6 A-1056-19 "[T]hird-degree endangering the welfare of a child requires proof only that
the victim is a child and sexual conduct by any person 'which would impair or
debauch the morals of the child.'" State in Interest of D.M., 238 N.J. 2, 18 (2019)
(citing N.J.S.A. 2C:24-4(a)(1)). The Legislature provided no great specificity
about what was being criminalized by N.J.S.A. 2C:24-4(a) beyond the general
description contained in the statute itself. The term "sexual conduct" is not
defined by N.J.S.A. 2C:24-4(a) or elsewhere in the Criminal Code, but our
Supreme Court has held that the phrase includes sexual assaults and sexual
contacts, State v. Perez, 177 N.J. 540, 553 (2003), as well as conduct that does
not constitute an assault or contact, D.M., 238 N.J. at 20 n.6, limited only by the
modifying phrase: "which would impair or debauch the morals of a child." In
D.M., the Court held that a juvenile could be adjudicated delinquent under
N.J.S.A.2C:24-4(a)(1), even when the specific conduct did not involve sexual
penetration, force, or coercion, and the juvenile and the victim are fewer than
four years apart in age. Id. at 20. Had the Legislature intended the elements of
sexual assault, N.J.S.A. 2C:14-2, to prove the elements of child endangering,
N.J.S.A. 2C:24-4(a)(1), it would have incorporated such language into the
endangering statute. Ibid.
7 A-1056-19 Defendant contends D.M. is distinguishable from his case and does not
support affirmance of the denial of his guilty plea withdrawal motion. He
maintains the victim in D.M. "was only eleven years old, and incapable of
entering into a consensual sexual relationship under any scenario pursuant to
New Jersey's [s]exual [a]ssault and [c]riminal [s]exual [c]ontact statutes[,]"
whereas the sixteen-year-old M.H. was capable of consenting to a sexual
relationship with an adult in New Jersey. He also contends the trial court in
D.M. specifically found that the sexual conduct in question "would tend to
debauch and impair the morals of a child." We disagree.
D.M. applies here because it stands for the proposition that for a defendant
to be guilty of third-degree child endangering, there only needs to be sexual
conduct that impairs or debauches the morals of a child. No sexual contact, such
as touching or penetration, is necessary. The fact that the victim in D.M. was
eleven years old is of no import. Defendant's admission that he engaged in
sexual conduct with M.H. that impaired or debauched her morals satisfied the
elements of third-degree child endangering. There was no need for the State to
independently establish the element of impairing or debauching the morals of
M.H. Defendant's guilty plea was sufficient, and despite his pending deportation
proceeding, we discern no manifest injustice in allowing his plea to stand.
8 A-1056-19 Affirmed.
9 A-1056-19