STATE OF NEW JERSEY v. A.D.D.

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2778-20

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

A.D.D.,1

     Defendant-Appellant.
_______________________

                   Submitted October 14, 2021 – Decided November 10, 2021

                   Before Judges Gooden Brown and Gummer.

                   On appeal from an interlocutory order of the Superior
                   Court of New Jersey, Camden County, Indictment No.
                   18-09-2337.

                   Robin Kay Lord, attorney for appellant.

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Cynthia Russomanno, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).



1
     We use initials to protect the confidentiality of the victim. R. 1:38-3(c)(12).
PER CURIAM

      By leave granted, defendant appeals from the January 20, 2021 Law

Division order denying his motion to withdraw his guilty plea prior to

sentencing. Based on our de novo review of the plea colloquy in light of the

applicable legal standards, we conclude the factual basis for the guilty plea was

inadequate and reverse.

      Defendant was charged in a Camden County indictment with second-

degree sexual assault,  N.J.S.A. 2C:14-2(b), and third-degree endangering the

welfare of a child,  N.J.S.A. 2C:24-4(a)(1), stemming from allegations that

between June 23 and July 11, 2018, he committed an act of sexual contact by

touching his five-year-old neighbor's vagina for sexual gratification.2       On

August 11, 2020, defendant entered a negotiated guilty plea to the child

endangerment count 3 in exchange for the State's agreement to move to dismiss

the remaining count and recommend a sentence of probation conditioned upon


2
  Defendant was arrested on the charges on July 12, 2018. At the time of his
arrest, defendant was serving a special sentence of parole supervision for life
(PSL),  N.J.S.A. 2C:43-6.4(a), and subject to Megan's Law,  N.J.S.A. 2C:7-1 to -
23, for an unrelated charge. His July 12 arrest resulted in a parole violation.
3
  Defendant had previously gone to trial on the charges in October 2019,
resulting in a hung jury. Prior to the re-trial, defendant entered into the plea
agreement with the State from which this appeal arises.


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time served subject to PSL, Megan's Law, and Nicole's Law,  N.J.S.A. 2C:14-2

and 2C:44-8.4

      On August 27, 2020, prior to defendant's scheduled sentencing date,

defendant moved to withdraw his guilty plea for various reasons, including an

inadequate factual basis to support the plea. 5 On January 20, 2021, following

oral argument, the trial judge denied defendant's motion. In an oral decision

delivered from the bench, the judge reviewed in detail the factual basis elicited

at the plea hearing, which we recount verbatim for context:

            [DEFENSE COUNSEL]: Between June 23[], [20]18,
            and July 11[], [20]18, were you in Pine Hill?

            [DEFENDANT]: Yes.

             ....

            [DEFENSE COUNSEL]: Did you have a residence in
            Pine Hill?

            [DEFENDANT]: Yes.

4
  Defendant had been detained since his July 12 arrest and was to remain in
custody pending sentencing. Under the terms of the plea agreement, defendant's
probation would be terminated upon sentencing as he would be under the
supervision of the State Parole Board's Division of Parole as a result of the PSL
sentence.
5
   On the same date, the Attorney General's Office filed a petition seeking
defendant's civil commitment as a sexually violent predator pursuant to the
Sexually Violent Predator Act,  N.J.S.A. 30:4-27.24 to -27.38. That petition is
not pertinent to the issues raised in this appeal.
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[DEFENSE COUNSEL]: Was there . . . a [five-year-
old] girl that lived next door to you?

[DEFENDANT]: Yes.

....

[DEFENSE COUNSEL]: Okay. Did there come a point
in time when you would invite her into your home?

[DEFENDANT]: Yes.

[DEFENSE COUNSEL]: And did you invite her into
your home during that period of time sometime
between June 23[] and July 11[], 2018?

[DEFENDANT]: Yes.

[DEFENSE COUNSEL]: And what was the purpose of
you inviting her into your home?

[DEFENDANT]: I was thinking about touching her.

[DEFENSE COUNSEL]: Touching her where?

[DEFENDANT]: Touching her sexually.

[DEFENSE COUNSEL]: And was that for . . . purposes
of sexual gratification on your part?

[DEFENDANT]: Yes.

[DEFENSE COUNSEL]: And did she actually enter
your home on those occasions?

[DEFENDANT]: She did come in one day, one time.



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                        4
            [DEFENSE COUNSEL]: Okay. Were you seated on
            the couch?

            [DEFENDANT]: Yes.

            [DEFENSE COUNSEL]: Did you invite her to sit next
            to you on the couch?

            [DEFENDANT]: Yes.

            [DEFENSE COUNSEL]:             And for what was that
            purpose?

            [DEFENDANT]: For the purpose of touching her but
            at the last minute I decided not to touch her.

            ....

            [PROSECUTOR]: And, sir, you would agree that by
            inviting her over with the purpose to touch her vagina,
            that would constitute sexual conduct, correct?

            [DEFENDANT]: Yes.

            [PROSECUTOR]: And I don't think this was explicitly
            said, but when you said "touch her," it was specifically
            her vagina, correct?

            [DEFENDANT]: Yes.

      The judge acknowledged that although the factual basis did not establish

the elements of child endangerment, it did "support an attempted child

endanger[ment] charge" and, "under [N.J.S.A. 2C:1-8(d)(2)], attempts . . . are

defined as lesser included offenses, notwithstanding that they require proof of


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facts that may not be necessary for the proof of the substantive crime

committed." In denying the motion, the judge unilaterally amended defendant's

guilty plea to the lesser included offense of attempted child endangerment,

stating:

            [D]efendant stated under oath that he invited the [five-
            year-old] victim in his home so that he could touch her
            vagina for sexual gratification. I find that his purpose
            of isolating her in his home away from her parents,
            having the victim sit on his sofa next to him is clear. It
            was to complete an act of sexual conduct. I find that
            the factual [basis] certainly shows that substantial steps
            were taken in this matter. The conduct was to touch the
            victim['s] . . . vagina. I find based on . . . [N.J.S.A.]
            2C:1-8[(d)](2) . . . that defendant's statements under
            oath are certainly adequate on an attempted
            endangering of the victim.

The judge entered a memorializing order on the same date, denying defendant's

motion on this ground as well as the other grounds raised, none of which are

pertinent to this appeal.

      On March 4, 2021, we denied defendant's motion for leave to appeal the

January 20, 2021 order. However, in an order filed June 4, 2021, the Supreme

Court granted defendant's motion for leave to appeal solely on the sufficiency

of the factual basis and "summarily remanded to the . . . Appellate Division to

consider on the merits, including consideration of State v. Barboza,  115 N.J. 415

(1989)."

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      In this ensuing appeal, defendant makes the following argument:

            THE TRIAL COURT ERRONEOUSLY DECIDED
            THAT IT COULD UPHOLD DEFENDANT'S
            FACTUAL BASIS BY FINDING DEFENDANT
            GUILTY OF AN ATTEMPTED CRIME IN LIEU OF
            THE ACTUAL CRIME LISTED IN THE PLEA
            AGREEMENT.

                  A. The Trial Court Erroneously Amended
                  Defendant's     Plea     From    Child
                  Endangerment To Attempted Child
                  Endangerment, Which Are Separate
                  Criminal Offenses.

                  B. Because Defendant Did Not Agree To
                  Plead Guilty To Attempted Child
                  Endangerment, Defendant's Plea Was Not
                  Knowing, Intelligent, And Voluntary.

                  C. Pursuant To The Court's Ruling In State
                  v. Barboza, . . . The Only Appropriate
                  Remedy Here Is To Vacate Defendant's
                  Guilty Plea So That Defend[an]t May
                  Either Re-Plead Or Proceed To Trial.

      We begin our analysis by acknowledging the legal principles that govern

this appeal. Our "review of a trial court's denial of a motion to vacate a guilty

plea for lack of an adequate factual basis is de novo." State v. Tate,  220 N.J.
 393, 403–04 (2015) (citing Manalapan Realty, L.P. v. Twp. Comm.,  140 N.J.
 366, 378 (1995)). "An appellate court is in the same position as the trial court

in assessing whether the factual admissions during a plea colloquy satisfy the


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essential elements of an offense." Id. at 404. "[I]f a factual basis has not been

given to support a guilty plea, the analysis ends and the plea must be vacated."

Ibid.

        "[A]t a plea hearing, a judge must be satisfied that the defendant has given

a factual account that makes him guilty of the crime." Id. at 405 (citing R. 3:9-

2). Under Rule 3:9-2, "a court shall not accept a guilty plea 'without first

questioning the defendant personally, under oath or by affirmation, and

determining by inquiry of the defendant and others, in the court's discretion, that

there is a factual basis for the plea.'" Ibid. (quoting R. 3:9-2). The necessity for

a factual basis to support a guilty plea is rooted in due process. McCarthy v.

United States,  394 U.S. 459, 466–67 (1969). "The principal purpose of the

factual-basis requirement of Rule 3:9-2 is to 'protect a defendant who is in the

position of pleading voluntarily with an understanding of the nature of the

charge but without realizing that his conduct does not actually fall within the

charge.'" Tate,  220 N.J. at 406 (quoting Barboza,  115 N.J. at 421). Thus, before

accepting a guilty plea, "a defendant must acknowledge facts that constitute the

essential elements of the crime." State v. Gregory,  220 N.J. 413, 420 (2015)

(citing State v. Sainz,  107 N.J. 283, 293 (1987)).




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      To that end, "[t]he factual basis for a guilty plea can be established by a

defendant's explicit admission of guilt or by a defendant's acknowledgmen t of

the underlying facts constituting essential elements of the crime." Id. at 419

(citing State v. Campfield,  213 N.J. 218, 231 (2013)). "[I]f an appellate court

subsequently determines that a plea has been accepted without an adequate

factual basis, the plea, the judgment of conviction, and the sentence must be

vacated, the dismissed charges reinstated, and defendant allowed to re-plead or

to proceed to trial." Barboza,  115 N.J. at 420.

      Here, we agree with the judge that defendant failed to establish a factual

basis for child endangerment.6      Significantly, defendant did not admit to


6
  The State counters that State v. Sanders,  230 N.J. Super. 233 (App. Div. 1989),
supports its position that defendant's factual basis was adequate to establish a
child endangerment charge. We disagree. In Sanders, we found "a sufficient
factual basis to sustain [a] plea of guilty" to child endangerment "subject to
prosecution in this State" where defendant admitted leaving Atlantic City "by
bus expressly for purposes of abandoning her two-day old baby in Philadelphia."
Id. at 235-236. The infant "was discovered in a restroom of a bus station" in
Philadelphia. Id. at 235. We posited that "the sole issue" was "whether the trial
court properly determined that New Jersey has jurisdiction to prosecute
defendant for the offense of endangering the welfare of a child and whether a
sufficient factual basis was given." Id. at 236. We held "[i]t is clear from the
facts admitted here that, by leaving New Jersey with the express purpose of
abandoning the child in Pennsylvania, defendant endangered the welfare of the
child in this [S]tate." Id. at 236-37. We determined that although defendant's
conduct in this State "may have constituted only an attempt to endanger in New
Jersey," the fact that defendant "took a substantial step in this state towards the


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                                        9
engaging in sexual conduct with the victim. On the contrary, defendant clearly

stated he did not touch the victim on her vagina as he had intended , which was

the sexual conduct that formed the evidential basis for the child endangerment

charge. We part company with the judge, however, when she determined she

had the authority to unilaterally modify the charge to which defendant pled

guilty to a lesser included offense in order to sustain the guilty plea.

      Our Supreme Court has explained:

                    Nowhere do New Jersey's court Rules
             contemplate a modification of a charge pleaded to
             either unilaterally or by arrangement with the
             prosecutor. The discretion of the trial court in assessing
             a plea is limited to assuring that the criteria for a valid
             plea of guilty have been met. Rule 3:9-2 makes clear
             that a plea is either accepted in full or rejected in full.
             There is no intermediate status for a plea. A plea
             agreement is an all-or-nothing arrangement. Accord
             People ex rel. Daley v. Suria,  490 N.E.2d 1288, 1290
             (Ill. 1986) (the authority of a trial court that finds that
             a plea is not supported by a factual basis is limited to
             rejecting the plea and does not extend to finding
             defendant guilty, without a trial, of a lesser-included
             offense to which defendant had not entered a plea).

ultimate act of neglecting the child" sufficed to establish a factual basis for child
endangerment. Id. at 237. Thus, the import of our ruling in Sanders was that
the defendant committed a completed act of child endangerment, albeit in a
different state, to confer jurisdiction in this State. Ibid. The facts here are
clearly distinguishable because there is neither a jurisdictional question nor a
completed act of child endangerment. Although the factual basis evidenced a
substantial step towards the ultimate act of child endangerment, defendant never
consummated the crime.
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                                        10
             ....

                    Moreover, to allow a court to direct the entry of
             a guilty plea to a lesser-included criminal offense
             without defendant's consent is tantamount to permitting
             a court to direct a verdict against a defendant in a
             criminal case. See State v. Collier,  90 N.J. 117, 122
             (1982) (a trial court's directing a verdict of guilty to a
             lesser-included offense violates defendant's federal and
             state constitutional rights).

                   It would also violate Rule 3:9-2, which prohibits
             the use of an admission elicited in support of a refused
             guilty plea.

             [Barboza,  115 N.J. at 422-23.]

      Additionally, to allow a court to unilaterally modify the charge to which

the defendant pled guilty without the defendant's consent would violate "the

spirit of Rule 3:9-3, which limits the role of trial judges in plea discussions." Id.

at 422. Accordingly, we reverse the denial of defendant's motion to withdraw

his guilty plea, vacate defendant's guilty plea, and remand for defendant to re -

plead or proceed to trial. See Campfield,  213 N.J. at 232 ("The 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.").




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                                         11
      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




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