STATE OF NEW JERSEY v. LUIS GUIRACOCHA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1555-06T51555-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS GUIRACOCHA,

Defendant-Appellant.

___________________________________

 

Submitted June 27, 2007 - Decided July 12, 2007

Before Judges Skillman and King.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-09-1765.

Aslan T. Soobzokov, attorney for appellant.

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

PER CURIAM

Defendant was indicted for criminal sexual contact, in violation of N.J.S.A. 2C:14-3b, and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a. Defendant entered into a plea bargain under which he agreed to plead guilty to the criminal sexual contact charge and the State agreed to dismiss the endangering the welfare of a child charge and to recommend a probationary sentence under which defendant would serve no jail time. The trial court found an adequate factual basis for the plea and sentenced defendant in accordance with the plea bargain to three years probation. The court dismissed the endangering the welfare of a child charge.

Following initiation of deportation proceedings, defendant filed a motion to withdraw his guilty plea. Defendant claimed that he did not provide an adequate factual basis for the plea and that the offense he committed was an act of lewdness, not criminal sexual contact.

After hearing argument, the trial court denied defendant's motion. Defendant appeals from the order memorializing this ruling. Defendant argues that he did not provide an adequate factual basis for his plea and that it therefore must be vacated.

Under Rule 3:9-2, before accepting a guilty plea, a court must satisfy itself "by inquiring of the defendant and others, in the court's discretion, that there is a factual basis for the plea[.]" See State in the Interest of T.M., 166 N.J. 319, 325-27 (2001). Although it is preferable for such a factual basis to be obtained without leading questions, our courts have recognized that such questioning may be necessary for a defendant to admit "the distasteful reality that makes the charged conduct [on which a sexual offense charge is based] criminal." State v. Smullen, 118 N.J. 408, 415 (1990). "[T]he defendant's admission or acknowledgment [of guilt] may be understood in light of all surrounding circumstances," including other evidence of the offense. State v. Sanz, 107 N.J. 283, 293 (1987); see also T.M., supra, 166 N.J. at 327.

The offense of which defendant pled guilty is a violation of N.J.S.A. 2C:14-3b, which provides:

An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c. (1) through (4).

N.J.S.A. 2C:14-1d defines "sexual contact" to mean:

[A]n intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present[.]

One of the "circumstances set forth in [N.J.S.A. 2C:14-2c]" is that "[t]he victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim" N.J.S.A. 2C:14-2c(4).

The victim in this case was fifteen, and defendant is more than four years older than her. The victim gave the following description of the offense in her statement to the police:

Q. Jillian, at approximately 9:20 in the morning on October 14, 2004, you reported an incident to the Bergen County Police. Would you tell me in your own words what took place?

A. I left my house and went to the bus stop, it was around 7:30. A gray silverfish car pulled up to where I was standing and when I glanced to see why he was there so long I realized that he was masturbating. When he noticed that I noticed him, he pulled away and turned the corner. Five minutes later he came back around and did the same thing.

Q. When he came back around, did he park his car near where you were standing?

A. Yes. Right in front of me.

Q. Do you know if he saw you standing there?

A. He was right in front of me and he was looking at me.

Defendant corroborated the victim's version of the offense in providing a factual basis for his plea to the trial court:

Q. Okay. And you're charged that on October 14th, 2004, that you were on Hudson Street in Hackensack --

A. Yes.

Q. -- that you were driving your car; that you stopped your car where there were some girls standing nearby. Is that correct?

A. Yes.

Q. And you had your -- your pants opened and your private part exposed.

A. Yes.

Q. And you had your hand on your private part at the -- at the time the girls were looking into the car while you had the car stopped.

A. Yes.

. . . .

Q. All right. Just so that we clarified it. You're talking about the penis.

A. Uh-huh.

Q. The penis that you're -- the private parts. I use that word, but the -- let's clarify it --

A. Yes, I touched it.

Q. You had your penis out and you had your hand on the penis while the girls were standing there looking in the car. Is that correct?

A. Yes.

. . . .

Q. On October 14th, 2004, you were in your car on Hudson Street in Hackensack. You stopped the car, and you exposed yourself.

A. Yes.

Q. And you had your penis, your private parts, your penis, sticking out --

A. Yes.

Q. -- and there was a girl on the corner that was looking at you, whom you found out through the discovery was only fifteen years of age.

A. Yes.

Q. And that you had your hand on your penis while she was looking at you, for the purpose -- because -- because it made you feel good and you wanted to gratify yourself sexually.

A. Yes.

Although the factual basis for defendant's plea was obtained partly by leading questions, we are satisfied that, considered in light of the victim's statement, it was adequate. Defendant's other arguments, which are not presented under separate point headings, see R. 2:6-2(a)(5), are clearly without merit. R. 2:11-3(e)(2).

Affirmed.

(continued)

(continued)

6

A-1555-06T5

RECORD IMPOUNDED

July 12, 2007