May 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 02-05-0671-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2007
Before Judges Coburn and Gilroy.
On a multi-count indictment, defendant pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count seven). In accordance with the plea agreement, the remaining counts were dismissed, and the trial judge sentenced defendant to an aggregate term of five years in prison, with an eighty-five percent parole ineligibility term pursuant to the No Early Release Act.
Defendant appeals, contending that his guilty plea must be vacated because he never provided a factual basis for the charges to which he pled guilty. When entering the plea, defendant asserted that he had no recollection of the events on which the criminal charges were based. Consequently, this aspect of the plea began with the prosecutor reading from the police report as follows:
Your Honor, if I may, just reading from the police report, and ask the defendant if he would not dispute the fact that on January 27th of 2002, he was in East Windsor, particularly, at the wife -- at the home of his wife, [M.L.]; is that correct?
THE DEFENDANT: Yes, it was my in-laws, yes.
MS. GEURDS: Your in-law's home, where was that?
THE DEFENDANT: East Windsor.
MS. GEURDS: Where was that?
THE DEFENDANT: I guess it's . . . [E.] Drive.
MS. GEURDS: And at approximately 5:00 p.m., [M.L.] went upstairs to take a shower, and the defendant was standing outside the shower stall talking to her and watching the baby, [C.L.] who was one year old. While the defendant was watching the baby, the victim, [M.L.] was inside taking the shower and [M.L.] asked the defendant to take the baby out of the bathroom and go downstairs with the baby.
The defendant returned a short time later. As the victim was exiting the shower, the defendant stated to her, I hate what I have to do, but I have to do it. She questioned him as to what he meant, and he replied, nothing. They began to speak about something. As she exited the shower, she observed him to be holding a knife with a towel wrapped around it. He stated, I'm going to have to F'ing kill you, you F'ing bitch. He came at her with the knife, pushing her back into a glass display cabinet causing it to break. She pushed him away and struck him several times attempting to escape, and the children, this is all three of them, began jumping on the suspect's back screaming at him to stop hurting their mother.
At this time, the defendant began to tell the children, your mother is going crazy, she's trying to kill me. That's really all I need to get at this point.
Would the defendant dispute those facts as stated?
Then the following colloquy occurred:
THE DEFENDANT: I have absolutely no recall, but I cannot dispute them.
MS. GEURDS: Particularly, in this case, too, with respect to the next charge, that [C.L.], his one-year-old child who he has custody over, was present during this incident.
THE DEFENDANT: I cannot recall, but I have no reason to dispute it.
THE COURT: All right. That would be --that would take care of the aggravated assault. And as you know, [Mr. L.], you're entering a plea of guilty, according to these papers to Count number 7 which charges you that on the same date, in the Township of East Windsor, at apparently the same location at the same time as Count number 2, that you did, within the jurisdiction, having legal duty for care of or who assumed the responsibility for the care of who we know to be [C.L.], born . . ., a child less than 16 years of age, did cause harm to C.L., making C.L. an abused or neglected child, defined in our statutes within the State of New Jersey. And I take it, the follow-up comments -- first I ask you, how do you plead to that charge, guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: And does your admission or does your inability to dispute those charges as they have been supplemented by Ms. Geurds' testimony and comments, is your circumstance the same that you can't dispute those allegations?
THE DEFENDANT: That is correct, sir. But I believe they may have got my son's birthday wrong.
Defendant argues that this case is controlled by State eX rel. T.M., 166 N.J. 319 (2001), while the State argues that T.M. is distinguishable. We agree that the circumstances in T.M. were more egregious than those present here, but the principles enunciated by the Court nevertheless govern this dispute. In short, a factual basis for the plea must appear on the record. Id. at 325-26. Although the factual basis ordinarily should come from the defendant, some flexibility is permitted.
For example, the judge may obtain a factual basis from others, as occurred here, but only if the defendant acknowledges the factual basis as true. Id. at 327. All that we have here is defendant's assertion that he did not recall the events and did not wish to contest the charges. That is not enough. See also State v. Smullen, 118 N.J. 408 (1990).
Reversed and remanded for trial.
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