NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4435-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION v. October 30, 2018 RAINLIN VASCO, APPELLATE DIVISION
Defendant-Appellant. ______________________________________________
Submitted March 14, 2017 – Decided October 20, 2017
Before Judges Espinosa, Suter, and Guadagno (Judge Espinosa dissenting).
On appeal from Superior Court of New Jersey, Law Division, Union County, Accusation No. 15- 09-0641.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Rainlin Vasco appeals his judgment of conviction
for fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(d). We affirm. I.
The following facts are taken from the record. On August 6,
2015, Elizabeth police responded to a report of domestic violence
at an apartment occupied by defendant and his mother, R.P.
Defendant and N.C. began to date in January 2015. N.C. became
pregnant with defendant's child and moved in with defendant and
his mother a few weeks before this incident. When N.C. told
defendant she wanted to go back to her mother's house, he became
angry and grabbed her. N.C. pushed defendant and he "got madder."
Defendant took out a knife, started walking toward N.C. and told
her he was going to cut her neck "wide open." N.C. yelled for
R.P. to come and R.P. took the knife from defendant. Defendant
then jumped on N.C. and began punching her in the leg until R.P.
pulled him off. R.P. dialed 9-1-1 and defendant ran out of the
house before police arrived.
Defendant was initially charged with simple assault, N.J.S.A.
2C:12-1(a), third-degree terroristic threats, N.J.S.A. 2C:12-3(a),
and third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d).
On September 16, 2015, pursuant to a plea agreement, defendant
waived his rights to indictment and trial by jury and agreed to
plead guilty to an accusation charging him with fourth-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
2 A-4435-15T2 During his guilty plea allocution, defendant provided the
following responses to questions by his counsel:
Q: Mr. Vasco, on August 6, 2015, were you in the City of Elizabeth?
A: Yes, I was.
Q: And on that date, did you possess a knife?
A: Yes, I did.
Q: And was it your understanding that it was against the law to possess that knife?
A: Yes, it was.
When defendant's counsel indicated he had no further
questions, the assistant prosecutor asked to confer with him.
Counsel then indicated he had a follow-up question:
Q: And did you — and you didn't have a lawful purpose for that knife, right?
A: I had a lawful — I had a lawful purpose, like, I didn't want to do anything unlawful. I just possessed it.
The judge then indicated he could not accept the plea because
defendant had not presented an adequate factual basis and suggested
the parties return after the lunch break.
When they returned, defendant provided the following
responses to his counsel's questions:
Q: Mr. Vasco, on August 6, 2015, you were
3 A-4435-15T2 in the City of Elizabeth, correct?
Q: And you were in possession of a knife, right?
A: Yes.
Q: And you didn't have a lawful purpose for that knife, right?
A: I did not.
Q: Okay.
After confirming that defendant understood that he was still
under oath, the judge indicated he was satisfied defendant provided
an adequate factual basis for his guilty plea and scheduled
sentencing for October 30, 2015.
On that date, defendant requested an adjournment to apply for
pretrial intervention (PTI). Defendant's PTI application was
subsequently denied and he appealed.
On February 11, 2016, while defendant's PTI appeal was
pending, defendant, represented by new counsel, filed a motion to
withdraw his guilty plea, alleging he received ineffective
assistance from his plea counsel and had not presented an adequate
factual basis for his guilty plea. Later that month, defendant
withdrew his appeal of the denial of his PTI application.
On May 16, 2016, a different judge heard argument on
defendant's motion. Defendant submitted a certification in which
4 A-4435-15T2 he claimed that during his argument with N.C., he noticed a knife
nearby and was afraid N.C. would use the knife against him. He
picked up the knife to move it away from N.C. and put it in a
"safer location" away from N.C. Defendant denied using or
intending to use the knife as a weapon.
Defendant also provided a statement N.C. gave to his
investigator in which she recanted her prior allegation:
Rainlin Vasco did not pull out the knife on the day of the incident. At the heat of the moment we were both upset and arguing verbally, but it never got any further than that. Both me and his mother, [R.P.] wanted him to get help at a Trinitas mental hospital, but were informed that the police needed to be called before anything. Rainlin's intent was and is never to hurt me in any way and I do not see him as a threat.
R.P. also provided a statement, but she confirmed that
defendant possessed a knife:
I was in my house in my living room and I heard them arguing and I know he had a knife and I got very nervous and I know that my son, Rainlin, is a very nervous person. I understood that I had to call hospital crisis and when I did, the hospital told me that I had to call the police for them to come to the house. I was just asking them to talk to a psychologist to speak to my son, Rainlin, and I never thought that this call would go any further than this. I ask that you excuse me for any misunderstanding.
5 A-4435-15T2 The judge provided a thorough analysis of the four factors
set forth in State v. Slater, 198 N.J. 145 (2009), which addressed
the circumstances under which a guilty plea may be withdrawn.
The judge found there was an adequate factual basis for
defendant's plea, noting that during defendant's allocution, he
affirmed under oath that he did not have a lawful purpose when he
possessed the knife on August 6, 2015. The judge also observed
that defendant was pleading to unlawful possession of a weapon and
not possession of a weapon for an unlawful purpose. The judge
rejected defendant's claim that he received ineffective assistance
from plea counsel, noting that defendant's plea agreement was
"generous and beneficial" to him as he pled guilty to a reduced
fourth-degree charge with a recommendation of a non-custodial
sentence of probation.
The judge found defendant had not made a colorable claim of
innocence, noting that defendant's claim was contradicted by
N.C.'s sworn statement to police at the time of the incident, and
by the 9-1-1 call made by R.P. The judge listened to a recording
of the 9-1-1 call1 and read the statement R.P. made to the
dispatcher into the record: "my son took [a] knife and threatened
1 The 9-1-1 recording was not provided to us.
6 A-4435-15T2 his girlfriend . . . .[A]nd said he was going to kill her with
[the knife.]"
The judge found that withdrawal of the guilty plea would
prejudice the State, as the victim, N.C., may not be cooperative
testifying at trial.
The judge then proceeded to sentence defendant in accordance
with the plea agreement to a two-year term of probation with the
conditions that he submit to a substance abuse evaluation and
follow recommendations, and enter and successfully complete a
batterer's intervention program.
Defendant appealed, but initially only challenged his
sentence as excessive. When we heard the matter on an excessive
sentence oral argument calendar, see Rule 2:9-11, it became
apparent that defendant was challenging the denial of his motion
to withdraw his plea. We then transferred the appeal to a plenary
calendar. Defendant now presents the following argument:
DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA WAS WRONGFULLY DENIED.
II.
"Before a court can accept a defendant's guilty plea, it
first must be convinced that (1) the defendant has provided an
adequate factual basis for the plea; (2) the plea is made
voluntarily; and (3) the plea is made knowingly." State v. Lipa,
7 A-4435-15T2 219 N.J. 323, 331 (2014) (citing R. 3:9-2). "Once it is
established that a guilty plea was made voluntarily, it may only
be withdrawn at the discretion of the trial court." Id. at 332
(citing State v. Simon, 161 N.J. 416, 444 (1999)).
A trial judge's finding that a plea was voluntarily and knowingly entered is entitled to [our] deference so long as that determination is supported by sufficient credible evidence in the record. . . . [and] "will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous."
[Ibid. (internal citations omitted)(quoting Simon, supra, 161 N.J. at 444).]
"[D]ifferent burdens . . . attach to pre-sentence and post-
sentence motions to withdraw a plea; 'pre-sentence motions to
withdraw a plea are governed by the "interest of justice" standard
in Rule 3:9-3(e), while post-sentence motions are subject to the
"manifest injustice" standard in Rule 3:21-1.'" State v. McDonald,
211 N.J. 4, 16 (2012) (quoting Slater, supra, 198 N.J. at 158).
Because defendant attempted to withdraw his plea prior to sentence,
the Slater factors are evaluated under the more relaxed interest
of justice standard of Rule 3:9-3. Defendant relies on his
certification and the statements of N.C. and R.P. in arguing the
judge erred in concluding he had not made a colorable claim of
innocence.
8 A-4435-15T2 To prevail on the first Slater factor, defendants must make
a colorable claim of innocence by presenting "specific, credible
facts and, where possible, point to facts in the record that
buttress their claim." Slater, supra, 198 N.J. at 158 (citations
omitted).
Defendant's claim, that he possessed the knife merely to move
it away from N.C. so she would not use it against him, is flatly
contradicted by N.C.'s initial statement to police, and R.P.'s 9-
1-1 call. In her statement to defendant's investigator, R.P.
acknowledged she knew defendant "had a knife and . . . got
nervous." Even N.C.'s retraction, that defendant "did not pull
out the knife," did not squarely support defendant's version that
N.C. was the aggressor and he moved the knife to keep it away from
her. We are satisfied that defendant has not presented "specific
credible facts" in support of his claim of innocence.
The second Slater factor, the nature and strength of
defendant's reasons for withdrawal, "focuses on the basic fairness
of enforcing a guilty plea by asking whether defendant has
presented fair and just reasons for withdrawal, and whether those
reasons have any force." Slater, supra, 198 N.J. at 159.
We note that defendant did not move to withdraw his guilty
plea until after his application for PTI was denied. Moreover,
defendant presents no explanation why he failed to assert the
9 A-4435-15T2 current version before entering his guilty plea. See McDonald,
supra, 211 N.J. at 26 ("In the absence of a colorable claim of
innocence or a credible explanation for defendant's failure to
assert his defenses before his guilty plea, the balancing of the
Slater factors supports the decision . . . to deny defendant's
motion to withdraw his plea of guilty.").
Defendant claims the judge erred in considering his
allocution where he admitted that he did not have a lawful purpose
for possessing the knife. Instead, defendant urges that we focus
on his initial response that he had a lawful purpose in possessing
the knife and "didn't want to do anything unlawful." After the
judge refused to accept defendant's initial allocution, defendant
returned to court after a recess and acknowledged, still under
oath, that he did not have a lawful purpose for possessing the
knife.
Defendant claims his possession of the knife was "manifestly
appropriate" because he was attempting to remove it to prevent
N.C. from using it. However, the motion judge rejected this
version along with N.C.'s recantation, noting "these facts are
contradicted by [N.C.'s] statement given to the police on the
night of the incident, [R.P.'s 9-1-1] calls and the defendant's
original plea allocution." Defendant makes no claim that he was
10 A-4435-15T2 pressured or coerced into changing his allocution2 and presents no
evidence of same.
Even though our November 10, 2016 order transferring this
matter to our plenary calendar, directed the parties to submit
"briefs limited to an analysis of the Slater . . . issues[,]" our
dissenting colleague now argues a Slater analysis is not
appropriate, as the only issue before us is whether defendant
failed to provide an adequate factual basis for his guilty plea.
"The standard of review of a trial court's denial of a motion
to vacate a plea for lack of an adequate factual basis is de novo."
State v. Urbina, 221 N.J. 509, 528 (2015) (quoting State v. Tate,
220 N.J. 393, 404 (2015)). Tate instructs that "when the issue
is solely whether an adequate factual basis supports a guilty
plea, a Slater analysis is unnecessary." Tate, supra, 220 N.J.
at 404 (emphasis added). However, defendant's motion to withdraw
his plea was based not only on his claim that the factual basis
2 In his brief, defendant claims for the first time that during his initial allocution, he attempted to explain why his possession of the knife was lawful, but during the recess his counsel "convinced [him] he was guilty regardless of his explanation." As this claim was not presented to the motion judge where it could have been "subjected to the rigors of an adversary hearing" and is unsupported by any record evidence, we do not consider it now. State v. Robinson, 200 N.J. 1, 18-19 (2009) ("The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves.").
11 A-4435-15T2 was inadequate, but on his allegation that he had demonstrated a
colorable claim of innocence based on new statements by N.C. and
R.P. A review of the later claim required a Slater analysis.
Relying on State v. Gregory, 220 N.J. 413 (2015), the dissent
argues that defendant's factual basis is inadequate as a matter
of law as "he did not admit to circumstances that were manifestly
inappropriate." We find Gregory factually inapposite.
In Gregory, the defendant pled guilty to possessing heroin
with intent to distribute while within 1000 feet of a school,
N.J.S.A. 2C:35-7. Id. at 417. At his plea hearing, the defendant
acknowledged possessing several packages of heroin near a school
but never indicated his intent to distribute that heroin, an
essential element of the crime. Id. at 421.
Here, defendant initially balked when he was first asked if
he had lawful purpose for possessing the knife, explaining he had
no intent "to do anything unlawful." After the judge refused to
accept the plea, defendant returned after a recess and, in response
to questions by his attorney, admitted that he did not have a
lawful purpose for possessing the knife.
While the dissent would have preferred a more expansive and
detailed admission, that is simply not required to establish a
factual basis for N.J.S.A. 2C:39-5(d). Recently, our Supreme
Court reviewed the three classes of possessory weapons offenses
12 A-4435-15T2 and noted that while "possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d), calls for an inquiry into the intent
of the possessor of a weapon, intent is not an element of unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d)." State v. Montalvo,
229 N.J. 300, 317 (2017). The "proper . . . inquiry is not one
of intent, 'but whether the circumstances surrounding the
possession were manifestly appropriate' for lawful use." Ibid.
(quoting State v. Colon, 186 N.J. Super. 355, 357 (App. Div.
1982)). Such an inquiry must focus on "the facts of the case and
not . . . the subjective intent of the actor." Ibid.
In his brief, defendant claims he told probation that "his
possession of the knife was lawful months before the withdrawal
motion was filed." However, defendant's statement to probation,
("Yeah we had an argument and I picked up a knife but I wasn't
gonna use it."), is more consistent with his allocution than his
subsequent version that he was only trying to keep the knife away
from N.C.
Focusing on the "circumstances surrounding the possession"
of the knife, see Montalvo, supra, 229 N.J. at 317, as established
by defendant's allocution, his statement to probation, N.C.'s
initial statement to police, and R.P.'s 9-1-1 call, we are
satisfied that defendant's admission that he did not have a lawful
13 A-4435-15T2 purpose in possessing the knife was sufficient to establish a
violation of unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
There was ample support in the record for the judge's
conclusion that defendant failed to demonstrate that enforcing the
guilty plea would violate the basic fairness concept of the second
Slater factor.
The third and fourth Slater factors (plea made pursuant to a
negotiated plea agreement, and prejudice to the State if plea is
withdrawn) weigh against defendant.
We are satisfied that defendant made an adequate factual
basis for his guilty plea and the judge did not abuse his
discretion in making any of the Slater findings.
Affirmed.
14 A-4435-15T2 ________________________________
ESPINOSA, J.A.D., dissenting.
The majority has marshalled facts gleaned from the
investigation that might well support a conviction of defendant
if presented in the form of competent evidence at trial. It is
questionable that the State could prove the "facts" the majority
has "taken from the record" because the essential facts relied
upon are derived from a statement N.C. gave that she has largely
disavowed, and the description of a 9-1-1 call from defendant's
mother, not in the record provided to us, that apparently conflicts
with her current account of events. But the issue before us is
not whether the State could prove defendant's guilt; it is whether
he admitted his guilt. And it is clear he did not admit facts
relied upon by the majority.
In my view, the threshold for our review must be a recognition
of the difference between a conviction following a trial, in which
the defendant has been afforded his constitutional rights, and a
conviction following a guilty plea, in which he has waived those
rights. "[A] guilty plea is the final relinquishment of the most
cherished right—to be presumed innocent of crime until a jury of
one's peers has determined guilt beyond a reasonable doubt." State
v. Slater, 198 N.J. 145, 154 (2009) (quoting State v. Smullen, 118
N.J. 408, 414 (1990)). When a defendant pleads guilty, he or she waives important constitutional rights, "including the right to avoid self- incrimination, to confront his or her accusers, and to secure a jury trial." A defendant who pleads guilty also relinquishes the right to require that the State prove to the jury every element of the offense beyond a reasonable doubt.
[State v. Gregory, 220 N.J. 413, 418 (2015) (internal citations omitted).]
"Before a court can accept a defendant's guilty plea, it
first must be convinced that (1) the defendant has provided an
voluntarily; and (3) the plea is made knowingly." State v. Lipa,
219 N.J. 323, 331 (2014) (citing R. 3:9-2). "In short, a trial
court must not accept a guilty plea unless it is satisfied that
the defendant is in fact guilty." Ibid.
"[O]ur law requires that each element of the offense be
addressed in the plea colloquy." State v. Campfield, 213 N.J.
218, 231 (2013) (citation omitted). The Court has made it clear
the defendant must be the source for establishing the factual
foundation, either by "a defendant's explicit admission of guilt
or by a defendant's acknowledgment of the underlying facts
constituting essential elements of the crime." Gregory, supra,
220 N.J. at 419 (citing Campfield, supra, 213 N.J. at 231). "[T]he
trial court 'must be satisfied from the lips of the defendant that
2 A-4435-15T2 he committed the acts which constitute the crime.'" State ex rel.
T.M., 166 N.J. 319, 327 (2001) (emphasis added) (quoting Barboza,
115 N.J. 415, 422 (1989).
In Gregory, the Court considered the adequacy of a factual
basis for a guilty plea where, like here, circumstances supporting
an inference of guilt were not acknowledged by the defendant.
Gregory, supra, 220 N.J. at 421-22. The defendant entered a guilty
plea to a charge of possessing heroin with intent to distribute
within 1000 feet of a school property, N.J.S.A. 2C:35-7. Id. at
417. "At his plea hearing, defendant admitted that he knowingly
possessed heroin contained in individual, stamp-sized packages
with specific markings while within 1000 feet of school property."
Ibid. He "did not state the number of small, individually
packaged, specifically marked baggies that he possessed, or
otherwise describe the amount of heroin in his possession." Id.
at 421, n.1.
Among the issues raised in his direct appeal, the defendant
contended he did not provide an adequate factual basis for his
guilty plea because he did not admit an intent to distribute
heroin. Id. at 418. Relying upon T.M., supra, 166 N.J. at 327,
the State argued "defendant's admissions provide a sufficient
factual basis for his guilty plea when 'examined in light of all
3 A-4435-15T2 surrounding circumstances and in the context of [the] entire plea
colloquy.'" Gregory, supra, 220 N.J. at 418.
Certainly, if the court could assess the defendant's
admissions "in light of all surrounding circumstances," even those
not explicitly admitted by the defendant, the factual basis given
in Gregory would appear to be adequate. But, the Court explicitly
rejected the proposition that surrounding circumstances, not
acknowledged by the defendant, could fill the gaps in a defendant's
plea colloquy. Although a trial court may look at "surrounding
circumstances," this only permits "trial courts to consider at the
plea hearing stipulations and facts admitted or adopted by the
defendant when assessing the adequacy of a defendant's factual
basis." Id. at 420. The Court rejected the State's urging "to
presume defendant's intent to distribute from the way the narcotics
were packaged," instructing, "a court is not permitted to presume
facts required to establish 'the essential elements of the crime.'"
Id. at 421 (quoting T.M., supra, 166 N.J. at 333). And in a
companion case, decided the same day as Gregory, the Court stated,
A defendant must do more than accede to a version of events presented by the prosecutor. Rather, a defendant must admit that he engaged in the charged offense and provide a factual statement or acknowledge all of the facts that comprise the essential elements of the offense to which the defendant pleads guilty.
4 A-4435-15T2 [State v. Perez, 220 N.J. 423, 433-34 (2015) (emphasis added) (internal citation omitted).]
The Court recognized that "in certain limited circumstances,
a particular element of an offense may address a fact that is
beyond a defendant's knowledge," such as "whether an unlawful
transaction occurred within 1000 feet of a school." Gregory,
supra, 220 N.J. at 421. Even when there is such a predictable
void in the defendant's knowledge, there is no exception to the
rule that the defendant admit the essential elements of the crime.
Instead, "[t]o satisfy such an element, prosecutors should make
an appropriate representation on the record at the time of the
hearing, so that the defendant can acknowledge or dispute it."
Ibid.
Turning to the facts before it, the Court noted the following
in reversing defendant's conviction:
During his plea colloquy, defendant admitted to knowingly or purposely possessing heroin- albeit not on his person—while within 1000 feet of a school, and that he knew the heroin was individually packaged in small, specifically marked baggies. However, the "intent to distribute" element of the offense was absent from defendant's testimony.
[Ibid. (footnote omitted).]
5 A-4435-15T2 The facts admitted by defendant here fell even further from
an acknowledgment of circumstances that would support a
conviction.
The essential elements of an offense under N.J.S.A. 2C:39-
5(d) are (1) there was a weapon, (2) defendant possessed the weapon
knowingly, and (3) the defendant's possession of the weapon was
under circumstances not manifestly appropriate for a lawful use.
Model Jury Charge (Criminal), "Unlawful Possession of a Weapon,
N.J.S.A. 2C:39-5d" (2005).
During the course of his plea colloquy, defendant admitted
he knowingly possessed a weapon. He admitted little else. In the
first attempted plea colloquy, he stated, "I had a lawful purpose,
like, I didn't want to do anything unlawful. I just possessed
it." The second attempt at establishing a factual basis yielded
the following:
Q. And you didn't have a lawful purpose for that knife, right?
A. I did not.
As the majority has noted, in State v. Montalvo, 229 N.J. 300
(2017), the Court distinguished between the elements of possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), which
"calls for an inquiry into the intent of the possessor of a
6 A-4435-15T2 weapon," and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d),
for which "intent is not an element." Id. at 317.
The Court instructed that the proper inquiry is "'whether the
circumstances surrounding the possession were manifestly
appropriate' for lawful use." Ibid. (quoting State v. Colon, 186
N.J. Super. 355, 357 (App. Div. 1982) (per curiam)). The Court
reviewed circumstances a jury might consider to determine "whether
the use of a weapon is manifestly appropriate or inappropriate
under the circumstances." Ibid. The Court cited cases in which
the circumstances supported a conviction for unlawful possession:
State v. Lee, 96 N.J. 156, 164-67 (1984) (defendant possessed
scissors taped to simulate stiletto while burglarizing home);
State v. Wright, 96 N.J. 170, 172-73 (1984), appeal dismissed, 469
U.S. 1146, 105 S. Ct. 890, 83 L. Ed. 2d 906 (1985) (defendant
possessed Exacto knife, strapped to leg, while wandering
neighborhood) as well as cases in which the circumstances failed
to support a conviction, such as when the defendant possessed a
pocket knife in his pocket while walking down the street, State
v. Blaine, 221 N.J. Super. 66, 70-71 (App. Div. 1987) or when the
defendant possessed a pocket knife but did not display it while
committing a robbery, State v. Riley, 306 N.J. Super. 141, 149-51
(App. Div. 1997).
7 A-4435-15T2 In my view, it was necessary for defendant to admit to
circumstances that were manifestly inappropriate to provide an
adequate factual basis for his guilty plea. Although the majority
has cited circumstances derived from statements made by witnesses
who have since recanted, none of these circumstances were
acknowledged by defendant. Without defendant's admission that
such circumstances were present, his factual basis is no more
adequate than the cases noted by the Supreme Court that failed to
support a conviction.
Finally, I address the appropriate standard of review. As
the majority acknowledges, "[t]he standard of review of a trial
court's denial of a motion to vacate a guilty plea for lack of an
adequate factual basis is de novo." State v. Tate, 220 N.J. 393,
403-04 (2015). But the majority also posits that, because
defendant's motion to withdraw his guilty plea was based upon both
an argument that his factual basis was inadequate and that a Slater
analysis warranted granting his motion, the de novo review of the
factual basis for his guilty plea must give way to a Slater
analysis. The support for this position is a single word in a
sentence in Tate that is taken out of context, "when the issue is
solely whether an adequate factual basis supports a guilty plea,
a Slater analysis is unnecessary." Id. at 404 (emphasis added).
8 A-4435-15T2 A review of the opinion reveals that, when a defendant
contends his guilty plea lacks a sufficient factual basis, the
Court clearly did not intend to limit appellate review to a Slater
analysis merely because other arguments were raised. The Court
noted the distinction between the review of cases in which the
plea is supported by an adequate factual basis and those in which
it is not. As to the latter case, we exercise a de novo review
of that issue, which has dispositive effect. As the Court stated,
"[i]n short, if a factual basis has not been given to support a
guilty plea, the analysis ends and the plea must be vacated."
The Court explained that a different standard of review
applies "where the plea is supported by an adequate factual basis
but the defendant later asserts his innocence." Ibid. Under
those circumstances, the Slater analysis applies and we review the
trial court's decision pursuant to an abuse of discretion standard.
From the first, defendant has asserted he should be permitted
to withdraw his guilty plea because it was not supported by an
adequate factual basis. Therefore, our review must begin there
and, in my view, our analysis ends there with the conclusion that
defendant's plea must be vacated. For these reasons, I
respectfully dissent.
9 A-4435-15T2 10 A-4435-15T2