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State v. Smullen

Decided: April 10, 1990.


On certification to the Superior Court, Appellate Division.

For reversal and reinstatement -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.


[118 NJ Page 409] The central question in this appeal is whether the proceedings establish an adequate factual basis for a guilty plea to criminal sexual contact with a young child. The facts of this case, like those in so many improper sexual contact cases, are mortifying to a defendant. In many cases a family member is (or has been) the victim of the crime. Here it was not. Still, it is not surprising that defendant did not wish to elaborate on the

details of the crime. A presentence report or an "Avenel" diagnosis will often require such elaboration, but the question is how much of that need be part of the guilty plea. We hold that defendant's affirmative answer to the question of whether he had touched a minor child, who was more than four years younger than he, for the purpose of sexual pleasure established the factual basis for conviction of the second-degree crime of criminal sexual contact under N.J.S.A. 2C:14-2b.*fn1 The subsidiary question is whether the trial court correctly denied defendant's later motion to set aside the plea on the basis that it was neither voluntary nor truthful but rather was the result of defendant's misguided desire to spare family and victims the pain of a trial. We hold that in the circumstances of this case, the trial court correctly exercised its discretion in not setting aside the plea, because of its abiding judgment that defendant fully understood the nature of the charges, the factual basis that he admitted, the truthfulness of his admission, and the significance of the plea bargain that he made. Accordingly, we reverse the judgment of the Appellate Division, which set aside the plea.


On May 2, 1986, the police arrested defendant on a complaint warrant, charging him with one count of aggravated sexual assault, a first-degree crime. A grand jury subsequently indicted defendant on two counts of first-degree aggravated sexual assault involving the sexual penetration of two children, both of

whom were less than thirteen years old, in violation of N.J.S.A. 2C:14-2a(1); two counts of second-degree sexual assault involving criminal contact with two children, both of whom were more than four years younger than he, contrary to N.J.S.A. 2C:14-2b; and one count of endangering the welfare of a child in violation of N.J.S.A. 2C:24-4a.

On February 25, 1987, defendant appeared before the Law Division and retracted a prior not-guilty plea to one of the second-degree criminal contact counts and entered a plea of guilty. The guilty plea was the product of a plea bargain under which the prosecutor agreed to dismiss the other four charges pending against defendant. The State agreed that defendant would be exposed to a "five-year maximum period of incarceration * * *, and the State [would] not seek[ ] a minimum parole ineligibility term." The prosecutor then approached the bench and presented the court with the original of the written plea agreement.

The court questioned defendant about the specifics of the five-count indictment that was before the court and defendant's intention to plead guilty to Count Two, charging him with sexual assault involving a child victim. The court asked defendant if he understood that the charge was a second-degree offense with a possible parole ineligibility term of five years but that as a result of the plea there would be a recommendation that the sentence not exceed five years maximum, and that there be no parole ineligibility term. (Under such a sentence, defendant would be eligible for parole after serving one-and-two-thirds years.) The court specifically asked defendant, "Has anybody forced you, threatened you, or put you under any pressure to get you to plead guilty?", to which defendant answered, "No, sir." The court asked defendant if he understood that he was giving up his rights to remain silent, to trial by jury, and to confront witnesses, to which defendant replied, "I understand that." The court asked if defendant had gone over the plea agreement with his attorney. Defendant stated that he had gone over it with him "very thoroughly," and that

he was satisfied with his attorney's service. The court then asked defendant if he could read, write, and understand English, and if he understood all of the questions on the form, to which defendant answered, "Yes, I can," and that he had read all of the questions and answers on the form. Specifically, the form included the question whether, in view of all of his answers of understanding, he intended to enter a plea of guilty to the specific charge and "Are you in fact guilty of that charge?" Defendant's answer was "Yes."

The court then asked defendant whether he understood that once the court accepted this plea, it was an irrevocable act. The court told defendant, "Ten minutes from now you can say, 'I change my mind. I don't want to plead guilty,' [but] it will be too late." Defendant replied, "I understand."

The court then elicited the factual basis for the plea with regard to the charge of sexual assault in the second count. Defendant stated that he grabbed the child "on the rear end." The court asked how old the child was, to which defendant answered, "Six, I believe." Defendant explained that the girl was in his house, in front of the refrigerator, when he wanted a bottle of soda. Rather than asking the child to move from in front of the refrigerator, he "just grabbed her by her rear end." The court then applied the statute to the facts:

THE COURT: I need the statute. The statute reads sexual contact is for "the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." Why did you grab the girl?

THE DEFENDANT: For my own pleasure.

THE COURT: What pleasure, sexual ...

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