STATE OF NEW JERSEY v. ADAM P. CORNELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0867-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADAM P. CORNELL,

Defendant-Appellant.

____________________________

February 17, 2012

Submitted January 17, 2012 - Decided

Before Judges Ashrafi and Newman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-12-2206.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal focusing on the guilty plea entered on a terroristic threat charge in which defendant Adam P. Cornell received a probationary sentence.

The facts surrounding this matter are largely contained in the presentence report. On August 16, 2008, defendant was a passenger in an automobile that he owned which was parked in a fire zone at the Garden State Plaza in Paramus. The car was being driven by co-defendant, Christina Pejovski. A Paramus police officer observed the vehicle at approximately 10:03 P.M. The officer approached the vehicle and asked for the driver's credentials, observing at the same time articles of clothing and sneakers in the back seat of the automobile. The officer requested information from headquarters regarding the registration provided and what he had observed. The officer was informed that a vehicle was wanted in connection with a possible shoplifting incident from Famous Footwear earlier that day.

Paramus Police Officers Betancourt and Parrello arrived on the scene. The investigation confirmed that Pejovski and the vehicle matched the description of the suspect alleged to have stolen footwear from Famous Footwear and the vehicle in which the suspect left the scene. Pejovski ultimately admitted to stealing the items and was arrested. A search of her person and purse found a stolen pair of earrings and an open prescription bottle containing Diazepam. A loss prevention employee from Nordstrom who came to the scene identified the earrings as stolen items.

Defendant was asked to exit the vehicle. He admitted he was the owner of the vehicle but was not driving due to a suspension of his driver's license. The loss prevention officer from Nordstrom's indicated that defendant had attempted to conceal two watches while he was in the store earlier that day. Defendant became belligerent. When Officer Betancourt tried to calm him down, defendant, according to the officer, stated "that he would shoot and kill him if he had his M-16."

Defendant was indicted on one count of terroristic threats, N.J.S.A. 2C:12-3a. A plea agreement was entered into, and the trial court subsequently asked defendant to establish the factual basis for his plea. The initial factual basis provided by defendant on July 14, 2009 contained the following relevant colloquy:

Q: Mr. Cornell, were you in Paramus on August 16, 2008?

A: Yes.

Q: And were you in your vehicle, but in the passenger seat?

A: Yes.

Q: And were you stopped and being questioned by police officers regarding a theft from Nordstrom's?

A: Yes. Well -

Q: Okay. And was there an exchange of words between you and the police officer?

A: Yes.

Q: And during speaking with the police officer did you say to that officer, 'I shot an M-16 in the Army,' in a threatening manner?

A: Yes.

The trial court did not view the foregoing colloquy as an adequate factual basis to enter a guilty plea to the crime of terroristic threats. The court then adjourned the matter to enable defendant to speak to his attorney.

Once back on the record, defendant admitted to threatening a police officer, but the court then asked more specific questions as follows:

Q: And apparently the conversation had to do with the fact that you had used an M-16 in the past?

A: Yeah. When I was in the service I used one.

Q: I understand that. But did you say this to the police officer in a threatening manner to make him understand that this was a threat?

A: He misunderstood it, sir. But it could have been taken as being a threat.

Once again, the court declined to accept the plea and enabled defendant and his attorney to have a further discussion.

Following that break in the proceedings, another effort to extract a factual basis was made as follows:

Q: And did you make a threat to the police officer?

A: Yes.

Q: Did you threaten to harm the police officer?

A: Yes.

Q: You don't recall the exact words you used, did you?

A: No, I don't.

Q: You don't? But you do recall making reference to an M-16 that you used during the time you were in the army?

A: Yes. Yes.

The court found the factual basis to be sufficient to accept the plea.

On July 29, 2009, defendant wrote a letter to the trial judge indicating that he was unhappy with his attorney and was not aware if she rescinded his plea. He further noted that he was "disgusted" and "ashamed" that he spoke in a low voice in court because he was lying to get out of prison by entering a guilty plea.

On August 14, 2009, the trial court postponed defendant's sentencing because of concerns about defendant's mental state and possible intoxication. Apparently, defendant was acting belligerently toward his attorney.

On August 28, 2009, defendant was sentenced in accordance with the plea agreement to a three-year probationary term with the condition that he follow any recommendations made by Care Plus and to participate in an anger management program.

At the time of sentencing, defendant orally moved to retract his plea of guilty. He did indicate to the court that his medications had been changed, and he was confused. At this juncture, defendant felt he was "leveling out" and that he was not the same person who appeared before the court when he was incarcerated in the county jail.

Throughout the initial sentencing hearing on August 14, 2009, and later on the day of sentencing, August 28, 2009, the court alerted defendant to his exposure to a perjury charge. The court afforded defendant an opportunity to speak to his attorney because of what he had stated in his letter to the court. The court then advised him that if defendant gave a false statement, he would direct the prosecutor to review the file for the purpose of filing perjury charges.

On August 28, 2009, the court reminded defendant that if he takes the position that he lied and insisted on vacating his plea, the court would direct the prosecutor to file perjury charges against the defendant. The court also indicated it had spent twenty to twenty-five minutes in thoroughly going over the plea when it was taken and found it to be intelligent, knowing and voluntary. The trial court advised defendant that if he sought to vacate the plea, he would "have to make a formal application." The court then said the following:

[M]ake a formal application and if those statements then are what you told me under oath, I'm directing the prosecutor to file perjury charges against you, because I've had it with people coming in here and making false statements.

The letter indicates that you were lying. I'm not going to react to it until there's a motion to vacate. But in the event that you take the position that in fact you did lie and you want to vacate the plea, Prosecutor, then I would direct you to file perjury charges against this Defendant.

On appeal, defendant raises the following argument:

POINT I

THE DEFENDANT'S PLEA SHOLD BE VACATED BY THIS COURT AS THERE WAS AN INSUFFICIENT FACTUAL BASIS SUPPLIED TO SUPPORT THE PLEA.

Defendant argues that an insufficient factual basis cannot support this conviction, and the sentence should be set aside. It is further asserted that the matter should be remanded for further proceedings. In the alternative, defendant contends that, "[a]t the very least, a remand should be ordered in order that the judge follow the dictates of State v. Slater, 198 N.J. 145, 150 (2009) and evaluate whether the defendant's informal demand that he be allowed to withdraw from his plea should be granted."

It is clear that for a plea of guilty to be accepted, there must be a factual basis for the plea. State v. Smullen, 118 N.J. 408, 414 (1990). A factual basis for the plea must include an acknowledgment of facts which would constitute the essential elements of the crime, not simply an admission of guilt. State v. Sainz, 107 N.J. 283, 293 (1987).

Defendant was indicted for violating N.J.S.A. 2C:12-3a which provides in pertinent part:

A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

The threat must be serious and not just an expression of fleeting anger but rather "settled purpose to carry out the threat or to terrorize the other person." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:12-3a (2010).

Here, defendant admitted that he may have acted in a belligerent manner. He also made a reference to an M-16 rifle from his service days. He acknowledged that he threatened to kill or shoot the officer although he obviously did not have an accessible weapon to then carry out any threat. While the factual basis is thin, we find it sufficient to support the plea.

We cannot overlook the fact that the trial judge had to interrupt the plea proceedings on two occasions because the factual basis was insufficient to establish the elements of the offense. We, however, conclude that the third attempt provided the necessary factual elements of the offense to support the guilty plea.

Defendant argues in the alternative that the court should have followed the dictates of State v. Slater in evaluating whether defendant's informal plea withdrawal should have been granted. The trial judge's coercive efforts to preclude defendant from moving formally to vacate his guilty plea by the threat of perjury cannot be condoned. While we recognize that it may have been proper for the trial judge to alert defendant of a potential perjury situation emanating from his letter to the court in which he said he was lying, the judge has no authority to direct the prosecutor to bring a charge of perjury.

Whether to charge persons suspected of criminal offenses is within the prosecutor's discretion. State v. DiFrisco, 118 N.J. 253, 265 (1990) (citing State v. Hermann, 80 N.J. 122, 127 (1979)). "[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case." United States v. Nixon, 418 U.S. 683, 693, 94 S. Ct. 3090, 3100, 41 L. Ed. 2d 1039, 1055 (1974). "Beyond purely constitutional concerns, the judiciary generally defers to the prosecuting attorney's discretion to charge or not to charge because enforcement decisions are the product of prosecutorial value judgments and expertise, and [because] courts lack standards by which to review these decisions." DiFrisco, supra, 118 N.J. at 265 (citation and internal quotations omitted).

The trial court clearly overstepped its boundaries. Such conduct should not be repeated. Had the court entertained the informal guilty plea withdrawal application, the procedure set forth in the then recent opinion of State v. Slater, supra, 198 N.J. at 150, should have been followed.

The matter is remanded to the trial court to permit defendant to file a formal plea withdrawal motion as if it was filed prior to sentencing. Defendant must file said motion within 45 days of the date of this opinion. Failing to do so, the sentence stands as affirmed.

Remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.