STATE OF NEW JERSEY v. KENNETH B. MOSLEY, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH B. MOSLEY, JR.,

Defendant-Appellant.

________________________________________________________________

November 4, 2016

Submitted May 24, 2016 Decided

Before Judges Rothstadt and Currier.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 13-06-0614.

Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the briefs).

SeanF. Dalton,Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Defendant Kenneth B. Mosley, Jr. pled guilty to third-degree making terroristic threats against a police officer, N.J.S.A. 2C:12-3(a), and sentenced to three years probation.1 He now appeals from his conviction arguing that the factual basis for his guilty plea was insufficient and that the court improperly denied his motion to withdraw his plea. We disagree and affirm.

The facts leading to defendant's arrest, indictment, and conviction can be summarized as follows. Responding to a call about an erratic driver who almost crashed his vehicle into a house, police officers discovered defendant asleep in a car stopped on the driveway of the house. After banging on the vehicle's window, defendant awoke, and after the police officer removed the keys from the car's ignition, an argument ensued between defendant and the officer. As the officer attempted to remove defendant, place him under arrest, and into the officer's vehicle, defendant became more verbally combative.

Defendant was charged with two counts of making terroristic threats and various motor vehicle offenses related to his driving while intoxicated and refusing to submit to an Alcotest. Prior to defendant pleading guilty to one count of making a terroristic threat in exchange for the dismissal of the other count and a plea recommendation to probation, his attorney was given copies of a video tape of defendant's conduct while at the police station. Defendant decided to plead guilty and during defendant's plea allocution he confirmed that he threatened to harm one of the officers in order to terrorize the officer. He made that admission during questioning by his counsel and the prosecutor

[DEFENSE COUNSEL:] And on [March 30, 2013], did you come in contact with [a] Patrolman . . . ?

[DEFENDANT:] Yes.

[DEFENSE COUNSEL:] And did you threaten to commit harm to [the] Patrolman . . . ?

[DEFENDANT:] Yes.

[DEFENSE COUNSEL:] And you did that with the purpose to terrorize him; is that correct?

[DEFENDANT:] Yes.

. . . .

[PROSECUTOR:] And, he was an officer; did you know he was an officer? Was he in uniform?

[DEFENDANT:] Yeah yes, he was in uniform.

[PROSECUTOR:] He was in uniform? You were at the police station; is that correct?

[DEFENDANT:] Yeah.

Prior to admitting to committing the crime, defendant confirmed to the court that he was entering the plea voluntarily after consulting with counsel. During the court's examination of defendant, he testified that he had enough time to consult with his attorney before agreeing to plead guilty and he discussed with counsel "the State's case and the evidence that they [had] against" him and "any possible defenses that [he] might have to [the] charge."

Based on defendant's sworn testimony, the court accepted his plea and later imposed a sentence in accordance with defendant's plea agreement. Before his sentencing, however, defendant filed a motion to withdraw his plea. Defendant argued that because he was intoxicated at the time he made the threats against the officers, he did not know what he was saying to them. In its consideration of defendant's argument, the court listened to a recording of defendant's plea allocution and noted that he never mentioned that he was intoxicated at the time of his arrest.

The court reviewed the factors it was required to consider pursuant to the Supreme Court's decision in State v. Slater, 198 N.J. 145 (2009), and denied defendant's motion. In its consideration of the Slater factors, the court found that granting defendant's motion would not be prejudicial to the State because "the police witnesses [were] still available"; defendant pled guilty pursuant to a plea agreement; the "nature and the strength of defendant's reasons for withdrawal [were] minimal, at best" as they related to his driving offenses that were being remanded to municipal court; and, despite defendant's assertion that he was intoxicated when he committed the crime to which he pled guilty, he did not assert a colorable claim of innocence because he did not "present[] . . . substantial information" to establish he was intoxicated to the extent that it would be a defense to the crime.

On appeal, defendant argues

POINT I

DEFENDANT'S PLEA MUST BE VACATED BECAUSE HE DID NOT GIVE A FACTUAL BASIS FOR THE CHARGED CRIME OF THIRD-DEGREE TERRORISTIC THREATS. (Not raised below).

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PRE-SENTENCING MOTION TO WITHDRAW FROM HIS GUILTY PLEA.

We conduct a de novo review of a trial court's denial of a motion to vacate a plea for lack of an adequate factual basis. See State v. Urbina, 221 N.J. 509, 528 (2015). "We therefore owe no deference to the trial court that took this plea [as we are] 'in the same position as the trial court in assessing whether the factual admissions during a plea colloquy satisfy the elements of an offense.'" Ibid. (quoting State v. Tate, 220 N.J. 393, 404 (2015)). However, we review for an abuse of discretion a decision on a motion to withdraw a plea that is supported by a sufficient factual basis. Tate, supra, 220 N.J. at 404.

We turn first to defendant's assertion that his factual basis was inadequate. Defendant did not raise this argument before the trial court. Consequently, defendant must demonstrate plain error, - that the court's error, if any, was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971).

Defendant argues that because he only testified at his allocution that he threatened to do harm to the police officer, he did not articulate that he intended to commit "a crime of violence," which is an element of committing the act of making a terroristic threat. N.J.S.A. 2C:12-3(a). We disagree.

Our court rules generally "require a judge to elicit a factual basis for a guilty plea." State v. Mitchell, 126 N.J. 565, 577 (1992) (citing R. 3:9-2). Rule 3:9-2 prohibits a court from accepting a guilty plea unless the court "first question[s] the defendant personally, under oath or by affirmation, and determin[es] 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 . . . ." "A factual basis for a plea must include either an admission or the acknowledgement of facts that meet the essential elements of the crime." Tate, supra, 220 N.J. at 406 (internal quotation marks and citations omitted). "[I]f a factual basis has not been given to support a guilty plea, . . . the plea must be vacated." Id. at 404.

"[W]hen considering a guilty plea, trial courts are permitted to look at the 'surrounding circumstances'" of the defendant's commission of the subject crime. State v. Gregory, 220 N.J. 413, 420 (2015). In order to prove that he gave an inadequate factual basis, a "defendant [must] show[] that there was insufficient evidence in the record as a whole available to the court . . . ." Mitchell, supra, 126 N.J. at 581.

In determining whether an adequate factual basis exists, the court may consider the defendant's statements as well as information gleaned from the surrounding circumstances. In evaluating the 'surrounding circumstances,' the court may consider a wide range of information sources, including all testimony at the plea and sentencing hearings, the presentence report, as well as other sources unique to a particular case . . . .

[Id. at 581-82 (citations omitted).]

"Surrounding circumstances cannot[, however,] substitute for the failure to elicit an adequate factual basis from a defendant, where a timely motion . . . is made to vacate a plea." Tate, supra, 220 N.J. at 408.

The elements of the crime to which defendant pled guilty are contained in N.J.S.A. 2C:12-3, which states, 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 . . . ." (emphasis added). The threat must be serious and not just an expression of fleeting anger but rather communicate a "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:12-3(a) (2015).

Applying defendant's statements to the elements of making a terroristic threat, we conclude from his plea allocution and the surrounding circumstances, that defendant provided a factual basis for the crime. Not only did defendant admit to the crime of threatening to do harm but, the discovery in the case, about which defendant admitted he had knowledge, disclosed that his actual statements clearly indicated that the harm he threatened was a crime of violence. For example, as contained in defendant's presentence report, the contents of which defendant did not materially challenge at sentencing, it was clear that defendant told the officer that he was going to "beat the shit out of" him, and explained that he was on bail for attempted murder for shooting a man, and that if the officer released him "everything [would] be good," implying the same fate would not befall the officer as the victim of the other crime. Defendant never contended he did not make these statements, only that he was intoxicated when he did so. Even if the court should have elicited more from defendant i.e., have him state verbatim what he said to the officer we do not believe the failure to do so constituted plain error. R. 2:10-2.

Having agreed with the trial court that defendant's factual basis was adequate, we discern no abuse in the court's discretion in denying defendant's motion to withdraw his plea. The court properly analyzed the application under Slater, and determined defendant did not meet his burden.

In addressing a defendant's motion to vacate a plea, the court must consider the four-prong test set forth in Slater: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal [will] result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58 (citation omitted).

When considering the first Slater factor, an assertion of a defense to a crime can amount to a colorable claim of innocence. Id. at 158; see also State v. Munroe, 210 N.J. 429, 442 (2012). Under N.J.S.A. 2C:2-8(a), self-intoxication permits evidence of intoxication as a defense to crimes requiring "purposeful" or "knowing" mental states. State v. Cameron, 104 N.J. 42, 52 (1986). Self-induced intoxication can negate an element of an offense if "the intoxication [is] of an extremely high level." Id. at 54. However, there must be a rational basis for the conclusion that defendant's faculties were so "prostrated" that he was incapable of forming an intent to commit the crime. State v. Mauricio, 117 N.J. 402, 418-20 (1990). The Court in Cameron described some of the factors used in determining "prostration of faculties" as follows

the quantity of intoxicant consumed, the period of time involved, the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor's ability to recall significant events.

[Cameron, supra, 104 N.J. at 56.]

"Testimony by the . . . defendant that the defendant was 'drunk' is no more than a conclusory label, of little assistance in determining whether any drinking produced a prostration of faculties." State v. Buhl, 269 N.J. Super. 344, 365 (App. Div.) (citing Cameron, supra, 104 N.J. at 56), certif. denied, 135 N.J. 468 (1994).

We reject defendant's contention that the court erred by finding defendant had admitted to the crime charged, and by finding that defendant did not assert "a colorable defense, namely that he did not have the specific purpose to" commit the crime "since he was too intoxicated to form the requisite state of mind." Defendant's contentions are belied by the record of his plea and his motion to withdraw his plea, which, as we have found, contained a sufficient factual basis, and does not contain any reference to the level of defendant's alleged intoxication that could have established a viable defense.

Here, defendant did not explain how much alcohol he used, how long he had used it, or when he last used it before committing the crime. Instead, he merely asserted he was intoxicated as established by his arrest for refusing to submit to an Alcotest and driving while intoxicated. This assertion is inadequate to establish the requisite high level of intoxication or its equivalent needed to require a court to reject his factual basis as testified to at his plea hearing.

Affirmed.

1 Defendant's Plea Agreement also states he waives his right to appeal.