On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-09-1765.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and King.
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.
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 ...