STATE OF NEW JERSEY v. DAMIAN GASDASKA

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0299-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMIAN GASDASKA,

Defendant-Appellant.

_______________________________________________

December 22, 2010

Submitted July 13, 2010 - Decided

Before Judges R. B. Coleman and C. L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 98-09-09581.

Maynard, Truland & Sumner, attorneys for appellant (Joe B. Truland, Jr., on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Damian Gasdaska appeals from an order, dated September 9, 2009, denying his motion to withdraw his guilty plea entered on August 28, 2009. Pursuant to the plea bargain, defendant entered a plea of guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). In exchange, the prosecutor argued to recommend probation conditioned on 364 days confinement in the Ocean County Jail and the dismissal of counts one and three alleging second-degree sexual assault and fourth-degree sexual contact. On April 30, 1999, defendant was sentenced to two years probation, with time served, and ordered to register as a sex offender in accordance with Megan's Law, with Community Supervision for life. Defendant now argues there was an insufficient factual basis to support the plea of guilty. We find defendant's contentions to be without sufficient merit to warrant discussion in a written opinion, and we affirm substantially for the reasons stated by Judge Wendel Daniels on the record on August 28, 2009. R. 2:11-3(e)(2). We add the following brief comments.

Rule 3:9-2 directs that a court

shall not accept [a guilty] plea without first addressing the defendant personally and determining by inquiring of defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily . . . and with an understanding of the nature of the charge and the consequences of the plea.

With regard to a motion to withdraw a plea of guilty, Rule 3:21-1 provides that "[a] motion to withdraw a plea of guilty . . . shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice."

Here, the motion to withdraw the plea was filed on July 2, 2009, more than ten years after the sentencing hearing. A plea may only be set aside in the exercise of the court's discretion. State v. Simon, 161 N.J. 416, 444 (1999). "Timing matters as to the strength of the reasons proffered in favor of withdrawal." State v. Slater, 198 N.J. 145, 160 (2009). "[E]fforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons." Ibid. "[A]fter sentencing defendants must show their conviction was manifestly unjust in appealing to the court's broad discretion." Id. at 156. "A bare assertion of innocence is insufficient to justify withdrawal of the plea. Defendants must present specific, credible facts and where possible, point to those facts in the record that support their claim." Id. at 158. A defendant's burden for presenting a plausible basis is heavier when the guilty plea results from a plea bargain. State v. Huntley, 129 N.J. Super. 13, 18 (App. Div. 1974).

Here, defendant argues the attorney who elicited the factual basis erred by using the term "sexual contact," instead of "sexual conduct" as found in N.J.S.A. 2C:24-4. That, he argues, negates the sufficiency of the plea. We reject that argument. Moreover, as the Supreme Court has noted, "[t]he child endangerment statute prohibits impairing or debauching the morals of a child by sexual conduct. Although the term 'sexual conduct' is not defined, clearly included are sexual assaults and sexual contact[.]" State v. Perez, 177 N.J. 540, 553 (2003) (quoting State v. Perez, 349 N.J. Super. 145, 153 (App. Div. 2002)). Defendant specifically admitted at the plea hearing that he and the victim engaged in sexual contact, which he agreed would have tendency to debauch the morals of a child under the age of sixteen. Even though there was no elaboration on the specific nature of the sexual contact, this satisfies the element of sexual conduct under N.J.S.A. 2C:24-4.

Defendant also argues the age of the victim was never properly established, and defendant thought the victim was seventeen years old. It is well established that only a failure to take a factual basis that rises to constitutional dimensions will render the sentence illegal. As we have stated more fully:

We recognize that the requirement to take a factual basis is not absolute. Every alleged deficiency in the taking of a factual basis does not constitute reversible error. Only in those instances where the failure rises to constitutional dimensions is the sentence rendered illegal. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly voluntary decision on his own.

[State v. Pena, 301 N.J. Super. 158, 163 (App. Div.), certif. denied, 151 N.J. 465 (1997) (citing State v. Mitchell, 126 N.J. 565, 577 (1992)) (internal quotations omitted).]

Defendant maintains that the factual basis for his plea was inadequate because he asserted his belief that the victim was seventeen. We find defendant's argument baseless. First, defendant's belief regarding the victim's age is not an essential element of N.J.S.A. 2C:24-4(a). See State v. Moore, 105 N.J. Super. 567, 571 (App. Div.), certif. denied, 54 N.J. 502 (1969). "[I]t is age in fact, not in reasonable belief or appearance, that is dispositive." Ibid. (citing State v. Koettgen, 89 N.J.L. 678, 683 (E. & A. 1916)). Second, and consistent with the discretion permitted by Rule 3:9-2, the court inquired of others, and both the prosecutor and defense counsel agreed that the victim was thirteen years old at the time of the occurrence on May 21, 1998. Moreover, we find no reversible error or manifest injustice. Pena, supra, 301 N.J. Super. at 163; R. 3:21-1.

Affirmed.

1 We note that the record reflects several different indictment numbers. The handwritten number entered on the copy of the indictment in plaintiff's appendix is I-98-07-00936. That indictment is dated July 29, 1998. The transcript of the February 25, 1999, plea hearing reflects Indictment Number 98-9-958. In that transcript, the assistant prosecutor recited Indictment Number 98-8-958. The Judgment of Conviction reflects Indictment Number 98-08-00958. The transcript of the April 30, 1999, sentencing hearing, the September 9, 2009 order denying defendant's motion to withdraw his plea of guilty and the Notice of Appeal reflect Indictment Number I-98-9-958.