STATE OF NEW JERSEY VS. RAINLIN VASCO(15-09-0641, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4435-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAINLIN VASCO,
Defendant-Appellant.
______________________________________________
Submitted March 14, 2017 – Decided October 20, 2017
Before Judges Espinosa, Suter, and Guadagno
(Judge Espinosa dissenting).
On appeal from the 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.
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 defendant's mother, 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).
2 A-4435-15T2
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).
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.
3 A-4435-15T2
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
in the City of Elizabeth, correct?
A: Yes, I was.
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
4 A-4435-15T2
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 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:
5 A-4435-15T2
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.
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.
6 A-4435-15T2
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 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 (ESOA) 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
1
The 9-1-1 recording was not provided to us.
7 A-4435-15T2
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,
219 N.J. 323, 331 (2014) (citing Rule 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. . . . [A]nd will be reversed on appeal only if there
was an abuse of discretion which renders the lower court's
decision clearly erroneous. Ibid. (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"
8 A-4435-15T2
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. 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.
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.
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
9 A-4435-15T2
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
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
10 A-4435-15T2
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 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
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
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." Id.
at 404 (Emphasis added). However, defendant's motion to
withdraw his plea was based not only on his claim that the
factual basis 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
12 A-4435-15T2
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
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, 316-17 (2017). The "proper . . .
inquiry is not one of intent, 'but whether the circumstances
surrounding the possession were manifestly appropriate' for
lawful use." Id. at 317 (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.13 A-4435-15T2
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 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 to support 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.
14 A-4435-15T2
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.
15 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 911 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)
(citations omitted).]
"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,
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). 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 he committed the
2 A-4435-15T2
acts which constitute the crime." State ex rel. T.M., 166 N.J.
319, 327 (2001) (citation omitted).
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. The
defendant entered a guilty plea to a charge of possessing heroin
with intent to distribute within 1,000 feet of a school property,
N.J.S.A. 2C:35-7. "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." Gregory, supra, 220 N.J. at 417. 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
surrounding circumstances and in the context of [the] entire plea
colloquy.'" Gregory, supra, 220 N.J. at 418.
3 A-4435-15T2
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.
[State v. Perez, 220 N.J. 423, 433-34 (2015)
(emphasis added).]
4 A-4435-15T2
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.]
The facts admitted by defendant here fell even further from
an acknowledgment of circumstances that would support a
conviction.
5 A-4435-15T2
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
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
6 A-4435-15T2
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).
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
7 A-4435-15T2
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).
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
8 A-4435-15T2
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,
"In short, if a factual basis has not been given to support a
guilty plea, the analysis ends and the plea must be vacated." Id.
at 404.
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.
Ibid.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