On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. 02-05-1096-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Wefing and R. B. Coleman.
Defendant was indicted for purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(2); two counts of felony murder, N.J.S.A. 2C:11-3(a)(3); robbery while armed, N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:5-2; burglary while armed, N.J.S.A. 2C:18-2; unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). Dennis Goldberg and Patrina Crawford were indicted as co-defendants.*fn1 Goldberg was also named in four additional counts, three charging assault upon a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and one charging resisting arrest, N.J.S.A. 2C:29-9(a).
Defendant thereafter entered a negotiated plea of guilty to aggravated manslaughter, N.J.S.A. 2C:11-4, as a lesser-included offense to murder. He was sentenced to twenty years in prison, subject to the terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and the remaining charges against him were dismissed. Defendant has appealed his conviction, alleging that there was an inadequate factual basis to support a conviction for aggravated manslaughter. After reviewing the record in light of defendant's contentions, we are satisfied that defendant is correct. We, therefore, reverse his conviction and remand this matter to the trial court for further proceedings. Defendant's indictment and conviction were based upon an incident that occurred during the evening hours of January 13, 2002, in Bayonne. The only description of the events of that evening contained in the record before us is found in the transcript of defendant's guilty plea, entered on May 12, 2003. Defendant's initial attempt to provide a factual basis for his plea of guilty was set forth in response to questions from his attorney. It proceeded in the following manner:
Q: Mr. Williams, on January 13th, 2002, did you enter the City of Bayonne with Katrina Crawford and Dennis Goldberg (phonetic)?
Q: And were you going to a Laundromat that Mr. Goldberg and Ms. Crawford were aware of with the purpose to do a burglary or a theft?
Q: At some point on the 13th, in the evening, did you arrive at that Laundromat with Mr. Crawford -- Mr. Goldberg and Ms. Crawford?
Q: Did Ms. Crawford enter the laundry --the dry cleaners?
Q: At some point later on, did you attempt with Mr. Goldberg to enter the dry cleaners, and find the door locked?
Q: Did you then go around the side of the building and find a side entrance to the dry cleaners?
Q: And did you likewise find that door locked?
Q: While standing there, did you observe Mr. Goldberg hear something from within the dry cleaner, and start to act wildly?
Q: Did you assist Mr. Goldberg by gaining entry, by kicking the side door and knocking it in?
Q: Did you then enter the dry cleaners with Mr. Goldberg?
Q: And was Ms. Crawford within the dry cleaners when you entered it?
Q: Was there another individual in there?
Q: Had you ever met that gentleman before?
Q: Did you, while standing near Mr. Goldberg, observe Mr. Goldberg take a gun out of his clothing and strike the gentleman twice in the head?
Q: Did you observe the gentleman fall to the ground, and Mr. Goldberg then proceed to kick or to stomp him, in or about the head area?
Q: And initially you did nothing to prevent or stop him; in fact, you aided him by kicking the door into the dry cleaners. Is that correct?
The State declared itself satisfied, but the trial court was clearly troubled by the sufficiency of defendant's statements. It questioned defendant, with additional assistance from defendant's attorney.
Q: Mr. Williams, it was your purpose to assist Mr. Goldberg in breaking into the laundry?
Q: It was your purpose to assist Mr. Goldberg in breaking into the laundry?
Q: And you knew he was armed?
Q: You didn't know he ...