On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County, Indictment No. 07-08-1245.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Wefing.
Defendant entered a negotiated guilty plea to attempted third degree endangering the welfare of a child in exchange for the dismissal of a count of second degree attempted sexual assault and second degree luring and a recommended sentence of parole supervision for life.*fn1 The factual basis and recommendation were accepted by the trial judge who nevertheless urged defendant at sentencing to file an appeal because she felt that "there could be a legal question as to whether or not [defendant] . . . abandoned any efforts" to commit the crime and "a significant question on appeal as to whether or not" defendant took enough affirmative action to commit an attempt. Defendant appeals and argues: "The factual basis provided by defendant did not support a conviction for attempted endangering the welfare of a child[,]" and "the application of parole supervision for life to this defendant constitutes cruel and unusual punishment." He acknowledges that he did not move to withdraw his plea or take any action in the trial court to advance the present challenges. Moreover, he affirmatively agreed to the disposition. As a result, we do not know if the present arguments would be material to the requested relief or if defendant understands that if he is successful he would again be facing two charges carrying a presumption of imprisonment. See N.J.S.A. 2C:44-1d. See also State v. Johnson, 182 N.J. 232, 244 (2005); State v. Cheung, 328 N.J. Super. 368, 370 (App. Div. 2000).
Defendant, then twenty-four years of age, communicated over the internet with a person working for the television program "Dateline NBC" and posing as a fourteen-year-old girl, and eventually arranged to meet "her" in Mantoloking, New Jersey for purposes of engaging in intercourse. After arriving at the house, defendant drove away. In his factual basis, the following was said:
Q: I would like to draw your attention to the period between February 22nd, 2007 and March 30th, 2007. Where were you living at that time?
Q: You were living in Brooklyn. And did you have access to a computer?
A: At the time around there; not frequent, but, yeah, I did.
Q: You did have access and you got into chat lines, didn't you?
Q: And you contacted someone you thought was between the ages of 13 and 16; isn't that correct?
Q: And you had sexual conversations with that particular individual, right?
Q: And as the end result of those conversations, you came down to ...