State v. Tahir S. Gregory (072715)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Tahir S. Gregory (A-40-13) (072715)
Argued October 6, 2014 -- Decided February 2, 2015
SOLOMON, J., writing for a unanimous Court.
In this appeal, the Court considers whether defendant provided an adequate factual basis to sustain his plea
of guilty to possession with the intent to distribute a controlled dangerous substance within 1000 feet of school
property.
Defendant Tahir S. Gregory was arrested and charged in a ten-count indictment with, among other things,
possession of a controlled dangerous substance (heroin) with the intent to distribute within 1000 feet of a school,
N.J.S.A. 2C:35-7. Defendant pled guilty to a violation of N.J.S.A. 2C:35-7, which provides that “[a]ny person who .
. . possess[es] with intent to distribute a controlled dangerous substance . . . within 1,000 feet of [any] school
property. . . is guilty of a crime.” 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. He
acknowledged initialing and signing the plea form, and admitted during his plea colloquy that he was entering his
guilty plea knowingly and voluntarily. The “nature of the offense” section of the standard plea form initialed and
signed by defendant lists the charge against defendant as “Poss CDS w/ intent School Zone.” Nowhere on the form
does it state “intent to distribute.” The trial court accepted defendant’s plea of guilty and sentenced him to an
extended term of eight years in prison with a forty-eight month parole disqualifier.
Defendant appealed, contending, among other things, that he did not provide an adequate factual basis to
sustain his guilty plea. The Appellate Division affirmed defendant’s conviction. The Court granted defendant’s
petition for certification. 216 N.J. 359 (2013).
HELD: Defendant did not provide a factual basis sufficient to sustain his guilty plea because he did not admit to all
of the elements of the crime or admit facts from which the court could conclude that all of the elements of the crime
had been established.
1. 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. In recognition of a defendant’s constitutional protections, when he or she decides to plead guilty and waive
the right to a trial the court “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). During a plea hearing, a defendant must be questioned personally in order to establish a factual
basis for the plea. The factual basis for a guilty plea can be established by a defendant’s explicit admission of guilt
or by a defendant’s acknowledgment of the underlying facts constituting the essential elements of the crime. State
v. Campfield, 213 N.J. 218, 231 (2013)(citing State v. Sainz, 107 N.J. 283, 293 (1987). (pp. 4-6)
2. Because the trial court is in no better position than an appellate court to determine whether the factual admissions
during a plea colloquy satisfy the essential elements of an offense, the 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. The elements of the offense to
which defendant pled guilty here were (1) possession of a controlled dangerous substance, (2) with the purposeful or
knowing intent to distribute the substance, and (3) within 1000 feet of any school property. During his plea
colloquy, defendant admitted to knowingly or purposely possessing heroin 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. Although the word “intent” appears on
the plea form that defendant admitted initialing and signing, he did not clarify at the plea hearing whether the word
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“intent” on the plea form referred to “possess” or “distribute.” Without defendant’s testimony explaining and
acknowledging his “intent to distribute,” the plea form is not germane. Although the State urges the Court to
presume defendant’s intent to distribute from the way the narcotics were packaged, a court is not permitted to
presume facts required to establish “‘the essential elements of the crime.’” State ex rel. T.M., 166 N.J. 319, 333
(1999)(quoting Sainz, 107 N.J. at 293). It was incumbent upon the trial court to make sure that a comprehensive
factual basis, addressing each element of the offense in substantial detail, was given when defendant pled guilty.
Because the factual basis falls short here, the Court is constrained to vacate defendant’s guilty plea and remand to
the trial court. (pp. 6-9)
The judgment of the Appellate Division is REVERSED, defendant’s guilty plea is VACATED, the
indictment is REINSTATED, and the matter is REMANDED to the trial court.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.
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SUPREME COURT OF NEW JERSEY
A-40 September Term 2013
072715
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAHIR S. GREGORY, a/k/a TAHIR
NELSON, TAHIR S. SAHKOOR, and
TAMIR SHAKUR,
Defendant-Appellant.
Argued October 6, 2014 – Decided February 2, 2015
On certification to the Superior Court,
Appellate Division.
Susan C. Green, First Assistant Deputy
Public Defender, argued the cause for
appellant (Joseph E. Krakora, Public
Defender, attorney; Ms. Green, Elizabeth C.
Jarit, Assistant Deputy Public Defender, and
Steven E. Braun, Designated Counsel, on the
briefs).
Jane C. Schuster, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
JUSTICE SOLOMON delivered the opinion of the Court.
Defendant pled guilty to possession with the intent to
distribute a controlled dangerous substance within 1000 feet of
school property. The question before this Court is whether
defendant provided an adequate factual basis to sustain his plea
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of guilty. Defendant did not admit to all of the elements of
the crime or admit facts from which the court could conclude
that all of the elements of the crime had been established.
Accordingly, we reverse defendant’s conviction, vacate his
guilty plea, reinstate the indictment, and remand the matter to
the trial court.
I.
Freddie Robinson, Joseph Parker-Bey, and defendant Tahir S.
Gregory were arrested following a narcotics investigation
conducted by the Atlantic City Police Department. Defendant was
charged in a ten-count indictment with, among other things,
possession of a controlled dangerous substance (heroin) with the
intent to distribute within 1000 feet of a school, contrary to
N.J.S.A. 2C:35-7.
On the day of trial, defendant expressed the desire to
represent himself, and the trial court conducted a self-
representation hearing. At the hearing, defendant confirmed
that he understood the nature of the charges against him,
including the charge of “intent to distribute,” and he was able
to define the term distribution. After a short recess,
defendant withdrew the request to represent himself and asked to
proceed to trial.
The next day, defendant decided instead to plead guilty to
a violation of N.J.S.A. 2C:35-7, which provides that “[a]ny
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person who . . . possess[es] with intent to distribute a
controlled dangerous substance . . . within 1,000 feet of [any]
school property. . . is guilty of a crime.” 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. He
acknowledged initialing and signing the plea form, and admitted
during his plea colloquy that he was entering his guilty plea
knowingly and voluntarily. The “nature of the offense” section
of the standard plea form initialed and signed by defendant
lists the charge against defendant as “Poss CDS w/ intent School
Zone.” Nowhere on the form does it state “intent to
distribute.” The trial court accepted defendant’s plea of
guilty and sentenced him to an extended term of eight years in
prison with a forty-eight month parole disqualifier.
Defendant appealed, contending, among other things, that he
did not provide a factual basis sufficient to sustain his guilty
plea. The Appellate Division affirmed defendant’s conviction,
and we granted certification, State v. Gregory, 216 N.J. 359(2013).
II.
Defendant contends that, because he did not admit to
intent to distribute heroin, the factual basis he gave in
support of his guilty plea was insufficient to sustain his
3
conviction under N.J.S.A. 2C:35-7. The State, citing State ex
rel. T.M., counters that 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.” 166 N.J. 319, 327 (1999) (citing
State v. Smullen, 118 N.J. 408, 415 (1990); State v. Barboza,
115 N.J. 415, 422 (1989)).
III.
We begin our analysis with a review of defendant’s rights
and the court’s responsibilities in a plea hearing. 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.” Barboza, supra, 115 N.J. at 420 (citing McCarthy
v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L.
Ed. 2d 418, 425 (1969); State v. Taylor, 80 N.J. 353, 361-62
(1979)). 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. See State v. Medina,
147 N.J. 43, 48-49 (1996).
In recognition of a defendant’s constitutional protections,
when he or she decides to plead guilty and waive the right to a
trial, the court “must be convinced that (1) the defendant has
4
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). Thus, our
rules require that during a plea hearing a defendant be
questioned personally in order to establish a factual basis for
the plea:
The court, in its discretion, may refuse to
accept a plea of guilty and shall not accept
such plea without first questioning the
defendant personally, under oath or by
affirmation, and determining by inquiry of the
defendant and others, in the court’s
discretion, that there is a factual basis for
the plea and that the plea is made
voluntarily, not as a result of any threats or
of any promises or inducements not disclosed
on the record, and with an understanding of
the nature of the charge and the consequences
of the plea.
[R. 3:9-2.]
The factual basis for a guilty plea can be established by a
defendant’s explicit admission of guilt or by a defendant’s
acknowledgment of the underlying facts constituting essential
elements of the crime. State v. Campfield, 213 N.J. 218, 231
(2013) (citing State v. Sainz, 107 N.J. 283, 293 (1987)).
In Campfield, this Court concluded that the defendant’s
admissions to beating the victim, forcing him to remove most of
his clothing, and chasing him into the woods in frigid weather
established the element of recklessness under the manslaughter
statute. Id. at 236. This Court reached a similar conclusion
5
in State v. Simon, 161 N.J. 416, 450 (1999), where we said that,
“[i]n addition to the defendant’s own words, common sense
informs us that when someone shoots at another person in the
upper body region, such as the neck and head, the shooter’s
purpose is either to cause serious bodily injury that results in
death or to actually cause death.”
IV.
With those principles in mind, we turn to defendant’s
contention that the factual basis given was inadequate to
demonstrate that he violated N.J.S.A. 2C:35-7. “The 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, __ N.J. __, __ (2015) (slip op. at 11); Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995) (“A trial court’s interpretation of the law and the legal
consequences that flow from established facts are not entitled
to any special deference.”). Because the trial court is not
making determinations such as the credibility of witnesses,
which call for deference, it is in no better position than an
appellate court to determine whether the factual admissions
during a plea colloquy satisfy the essential elements of an
offense. See Barboza, supra, 115 N.J. at 422 (“The discretion
of the trial court in assessing a plea is limited to assuring
that the criteria for a valid plea of guilty have been met.”).
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The elements of the offense to which defendant pled guilty
here were (1) possession of a controlled dangerous substance,
(2) with the purposeful or knowing intent to distribute the
substance, and (3) within 1000 feet of any school property. Our
analysis of the sufficiency of the factual basis given as to
each of those elements begins with the recognition that trial
courts need not follow a “‘prescribed or artificial ritual’”
when entering a defendant’s guilty plea. Id. at 231 (quoting
T.M., supra, 166 N.J. at 327). Indeed, in State v. Mitchell,
126 N.J. 565, 581 (1992), we held that when considering a guilty
plea, trial courts are permitted to look at the “surrounding
circumstances.” As fully explained in Tate, supra, __ N.J. at
__ (slip op. at 16-18), we interpret Mitchell to allow 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.
Simply put, a defendant must acknowledge facts that
constitute the essential elements of the crime. Sainz, supra,107 N.J. at 293. As we held in Campfield, supra, a defendant’s
admissions to beating the victim, forcing him to remove most of
his clothing, and chasing him into the woods in frigid weather
established the element of recklessness under the manslaughter
statute. 213 N.J. at 236.
7
We recognize that, in certain limited circumstances, a
particular element of an offense may address a fact that is
beyond a defendant’s knowledge; a defendant may not know whether
an unlawful transaction occurred within 1000 feet of a school.
To 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.
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.1
However, the “intent to distribute” element of the offense was
absent from defendant’s testimony.
Although the word “intent” appears on the plea form that
defendant admitted initialing and signing, he did not clarify at
the plea hearing whether the word “intent” on the plea form
referred to “possess” or “distribute.”2 Without defendant’s
1 Defendant 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.
2 A defendant can violate N.J.S.A. 2C:35-7 without intending to
be within 1000 feet of school property. State v. Ivory, 124
N.J. 582, 592 (1991) (“the fact that defendant may not have
intended to make distribution within 1,000 feet of school
property is irrelevant” (internal quotation marks omitted)).
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testimony explaining and acknowledging his “intent to
distribute,” the plea form is not germane.
The State urges this Court to presume defendant’s intent to
distribute from the way the narcotics were packaged. However, a
court is not permitted to presume facts required to establish
“‘the essential elements of the crime.’” T.M., supra, 166 N.J.
at 333 (quoting Sainz, supra, 107 N.J. at 293); see also
Campfield, supra 107 N.J. at 232 (“The trial court’s task is to
ensure that the defendant has articulated a factual basis for
each element of the offense to which he pleads guilty.”).
We acknowledge that this case involved separate hearings on
consecutive days. The many factual representations made at
those proceedings undoubtedly complicated matters.
Nevertheless, it was incumbent upon the trial court to make sure
that a comprehensive factual basis, addressing each element of
the offense in substantial detail, was given when defendant pled
guilty. Because the factual basis falls short here, we are
constrained to vacate defendant’s guilty plea and remand to the
trial court.
V.
For the reasons set forth above, the judgment of the
Appellate Division is reversed, the defendant’s guilty plea is
9
vacated, the indictment is reinstated, and the matter is
remanded to the trial court.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUSTICE SOLOMON’s opinion.
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SUPREME COURT OF NEW JERSEY
NO. A-40 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAHIR S. GREGORY, a/k/a TAHIR
NELSON, TAHIR S. SAHKOOR, and
TAMIR SHAKUR,
Defendant-Appellant.
DECIDED February 2, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
VACATE/
CHECKLIST
REINSTATE/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7
1