STATE OF NEW JERSEY v. KULDEEP KUMAR

NOT FOR PUBLICATION WITHOUT THE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.

KULDEEP KUMAR,

Defendant-Appellant.

____________________________________

Submitted May 31, 2016 Decided June 7, 2016

Before Judges Sabatino and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-03-0455.

De Luca & Taite, attorneys for appellant (Samuel R. DeLuca and George T. Taite, on the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kuldeep Kumar appeals the trial court's denial of his motion to vacate what he contends is his unlawful conviction of third-degree1 aggravated assault, N.J.S.A. 2C:12-1(b)(3), for lack of a sufficient factual basis at the time of his guilty plea. We vacate defendant's guilty plea to that particular charge and his associated conviction and remand to the trial court for further proceedings as we prescribe, infra.

I.

Defendant was charged in Hudson County with various crimes in two separate indictments, Indictment No. 00-03-455 and Indictment No. 01-03-660. Defendant's counsel negotiated a plea agreement in which he pled guilty on December 4, 2002 to unlawful use of a credit card, N.J.S.A. 2C:21-6(h), in Indictment No. 01-03-660, and aggravated assault, N.J.S.A. 2C:12-1(b)(3), in Indictment No. 00-33-455. As part of the plea agreement, the State recommended that defendant receive three years of probation on a concurrent basis for the counts to which he pled guilty. The trial court sentenced defendant in accordance with that agreement.

Subsequently, defendant moved in 2011 to vacate his guilty plea on the credit card offense for lack of an adequate factual basis and also to set aside his conviction on the aggravated assault count, claiming he did not actually plead guilty to that charge. Although we have not been supplied with copies of the ensuing 2011 order, counsel and the trial judge agree that the court in 2011 granted partial relief on the motion, apparently limited to the credit card conviction.

Defendant then filed another motion in 2012, which resulted in an amended judgment of conviction in Indictment No. 01-03-660, dated January 7, 2013, in which the conviction on the credit card count was amended, with the State's consent, to a guilty plea to a disorderly persons offense of theft by deception, N.J.S.A. 2C:20-4. The parties have furnished no orders reflecting any dispositions of defendant's efforts to set aside or modify the aggravated assault conviction in Indictment No. 00-03-455, except for the present order from April 20, 2015 denying such relief. 2

Defendant then filed the present motion to vacate the aggravated assault count of his conviction, arguing that there was likewise an insufficient factual basis for his plea to that particular count. Although the trial court recognized that there were some deficiencies in the December 4, 2002 plea transcript with respect to the aggravated assault charge such as the fact that in the latter half of defendant's plea colloquy his answers were inaudible and thus not transcribed it found the requisite factual basis for the third-degree offense was still established.

The trial court concluded that the plea transcript, when considered as a whole, was sufficient to establish the necessary factual basis for aggravated assault. Namely, the trial court found it persuasive that: (1) there were no recorded objections at the plea hearing; (2) defense counsel used the transition word "okay" after defendant's successive inaudible answers at the plea hearing; and (3) at sentencing, defense counsel explicitly acknowledged that he and defendant had gone over the presentence report, which contained a recitation of the charges, and stated that there were no corrections that needed to be made.

II.

Defendant raises the following point on appeal for our consideration

ABSENT A FACTUAL BASIS TO THE ELEMENTS OF THE OFFENSE THE CONVICTION CAN NOT STAND.

A.

Our Supreme Court has instructed that

when accepting a guilty plea, the trial court should inquire "among other things, (1) whether anyone had forced, threatened, or put [defendant] under pressure to plead guilty, (2) whether the defendant understood that he was relinquishing certain constitutional rights, (3) whether the defendant understood the nature of the charge and content of the sentencing recommendation, and (4) whether the defendant was in fact guilty of the specific charge[.]"

[State v. Campfield, 213 N.J. 218, 230-31 (2013) (alterations in original) (quoting State ex rel. T.M., 166 N.J. 319, 336 (1999)).]

Moreover, "[t]o that end, our law requires that each element of the offense be addressed in the plea colloquy." Id. at 231 (emphasis added). The trial judge "must be satisfied from the lips of the defendant that he committed the acts which constitute the crime." Ibid. (quoting State v. Sainz, 107 N.J. 283, 293 (1987)).

In this regard, the trial court's "inquiry need not follow a 'prescribed or artificial ritual[,]'" as different "criminal charges and different defendants require courts to act flexibly to achieve constitutional ends." Ibid. (quoting T.M., supra, 166 N.J. at 327). A defendant's admissions "should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy." Ibid. (quoting T.M., supra, 166 N.J. at 327). For example, in some cases, a "judge's leading questions may be necessary to ensure an adequate factual basis for the guilty plea. Ibid. Overall, 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." Id. at 231-32.

Here, at defendant's December 4, 2002 plea hearing, his counsel engaged him in the following exchange in an attempt to establish the factual basis for the aggravated assault charge3

Defense counsel: [Defendant], going back to June 12, 1999 did you find yourself on Newark Avenue?

Defendant: Yes.

Defense counsel: In a parking lot or parking area?

Defendant: Yes.

Defense counsel: And you you were part of a fight there?

Defendant: Yes.

Defense counsel: And did you pick up a stick and strike Mr. Ravia (phonetic).

Defendant: --

Defense counsel: I'm sorry I'm sorry I'm sorry. Ravia Rajeesh (phonetic).

Defendant: --

Defense counsel: And you struck him with a stick, is that correct?

Defendant: --

Defense counsel: Okay. You knew you that was a criminal act correct?

Defendant: --

Defense counsel: Okay.

Prosecutor: The State's satisfied, Your Honor.

Defendant then acknowledged that his plea was voluntary and made without coercion.

The State contends in its brief that the nature of the exchange quoted above makes it virtually certain that defendant responded, albeit inaudibly, in the affirmative to all of the questions regarding the factual basis asked of him. Moreover, the State, like the trial court, reasons that the fact that no objections were made during the plea hearing or the sentencing proceeding signifies that defendant understood and voluntarily pled to the charge. However, even if we were to accept both of these contentions as true, this does not solve the substantive problem that the record from the plea hearing does not establish an adequate factual basis to prove the elements of aggravated assault, as opposed to simple assault.

According to the pertinent provision within the Criminal Code, a person is guilty of aggravated assault when he

(2) Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3) Recklessly causes bodily injury to another with a deadly weapon[.]

[N.J.S.A. 2C:12-1(b)(2)-(3).]

Conversely, a person commits only simple assault if he

(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

(2) Negligently causes bodily injury to another with a deadly weapon; or

(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

[N.J.S.A. 2C:12-1(a).]

Even if we were to accept the premise that defendant voluntarily admitted to all of the facts contained in the questions asked of him during the plea hearing, the queries were not sufficient to support the required elements of aggravated assault. Admitting to striking another person a single time with a stick does not in itself establish that someone either: (1) attempted to cause or purposely caused bodily injury to another with a deadly weapon, or (2) recklessly caused bodily injury to another with a deadly weapon.

Although we recognize there are certain circumstances in which a stick could potentially be transformed into a deadly weapon such as if it were extremely large or had been sharpened into a dangerous point that could be used to stab someone no such circumstances were established here by defendant's plea colloquy. Moreover, there were no facts presented in the colloquy suggesting that defendant used the stick in a deadly manner, such as striking the victim particularly hard a number of times or on a body part that is especially vulnerable to severe, potentially fatal injury. At most, there is merely an admission by defendant to using a nondescript stick to strike another individual a single time. Such a factual basis does not fulfill each of the required elements of the offense of aggravated assault.

The limited record only reflects a factual basis sufficient to support the offense of simple assault. Intentionally hitting another individual with a stick would satisfy either subsection (1) or (3) of N.J.S.A. 2C:12-1(a), as such an action demonstrates "[an] attempt[] to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another[,]" see N.J.S.A. 2C:12-1(a)(1), as well as an attempt to "by physical menace to put another in fear of imminent serious bodily injury[,]" see N.J.S.A. 2C:12-1(a)(3).

The Supreme Court in Campfield instructed that a plea colloquy must be tailored to a particular defendant and the specific circumstances of a case to provide a factual basis for each element of the offense to which he pleads guilty. Campfield, supra, 213 N.J. at 230-31. Accordingly, it would have been prudent for either the trial court or the prosecutor at the plea hearing to question defendant in an open-ended manner to establish necessary elements of the crime that defense counsel's limited colloquy did not cover. Specifically, the trial judge or the prosecutor could have questioned defendant further as to the nature of the stick he used, or the manner in which he used it to determine whether or not it constituted a deadly weapon. But that was not done here.

In sum, there is an inadequate factual basis in this record to establish the elements of aggravated assault to which defendant pled guilty. As the Court in Campfield instructed, "[t]he remedy for an inadequate factual basis is an order vacating the guilty plea and restoring both parties to their positions prior to the trial court's acceptance of the plea." Campfield, supra, 213 N.J. at 232. Consequently, "the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges [must be] reinstated, and defendant [must be] allowed to re-plead or proceed to trial." Ibid. (quoting State v. Barboza, 115 N.J. 415, 420 (1989)). Our disposition does not foreclose, of course, an agreement between the parties to have the judgment of conviction amended to reflect a conviction for simple assault, as is supported by the existing plea colloquy, assuming defendant's inaudible responses are treated in context as affirmative acknowledgements.

B.

In opposing defendant's appeal, the State separately argues that defendant's current attorneys one of whom represented defendant at his 2002 plea and 2003 sentencing have a conflict of interest because they have refrained from making an argument that defendant was deprived of ineffective assistance of counsel. We discern no such conflict. Defendant is free to challenge the validity of his conviction without asserting that his counsel's representation was constitutionally ineffective.

Additionally, the State argues that defendant's challenge is time-barred pursuant to Rule 3:22-12(a)(2), characterizing defendant's motion as a claim for post-conviction relief. We do not adopt that characterization. Defendant does not argue any of the grounds appropriate for inclusion in a petition for post-conviction relief under Rule 3:22-2. Nor is he required to do so in order to challenge the legality of his conviction. Hence, we find this procedural argument to be without merit. R. 2:11-3(e)(2).

Vacated and remanded for further proceedings consistent with Campfield and this opinion. We do not retain jurisdiction.

1 Although there is discrepancy in the parties' briefs and the record as to whether this charge was a third- or fourth-degree offense, we rely on the March 11, 2003 judgment of conviction, which clearly states that it is a third-degree offense.

2 Notably, the State does not argue res judicata or that prior motion orders entered by the trial court disposed of the issue now before us concerning the aggravated assault conviction.

3 At the outset of the proceeding, the assistant prosecutor noted that defendant would plead guilty to a charge of aggravated assault.