On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-10-4008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011
Before Judges Fisher and Sapp-Peterson.
Defendant appeals his conviction, following the entry of a guilty plea to third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. We reverse and remand for trial or further proceedings.
On April 1, 2005, police were dispatched to an apartment on Black Horse Pike in Blackwood on a report that an individual, later identified as defendant, was attempting to break into an apartment where the victim, his former girlfriend, was house- sitting. Police apprehended defendant, who claimed that "he attempted to get into the apartment because he thought his girlfriend was in danger." Police observed pry marks on the front door and found a metal crowbar in the back of defendant's pickup, which was parked in front of the apartment.
In addition to third-degree criminal attempt to commit burglary, a grand jury indicted defendant for third-degree terroristic threats, N.J.S.A. 2C:12-3(a) and (b) (Count Two), and fourth-degree criminal contempt, N.J.S.A. 2C:29-9(b) (Count Three). On September 25, 2006, defendant appeared before the trial court with counsel. Pursuant to a negotiated plea agreement, counsel advised that defendant would plead guilty to third-degree criminal attempt to commit burglary in exchange for a recommendation from the State that he would receive a three- year probationary sentence. The sentence would also include a condition that he obtain drug counseling and not have any uninitiated contact with the victim. Defendant acknowledged his obligation to pay all appropriate fines and penalties and waived his right to a jury trial and also to appeal.
On July 11, 2008, the court sentenced defendant in accordance with the terms of the agreement, and defendant once again waived his right to appeal. However, on November 6, 2008, defendant filed a notice of appeal. On July 29, 2009, defendant's appeal was placed on the sentencing calendar pursuant to Rule 2:9-11.
At oral argument, defense counsel, relying upon State v. Marquez, 277 N.J. Super. 162, 169 (App. Div. 1994), certif. denied, 141 N.J. 99 (1995), argued that defendant's conviction could not stand because he did not enter the premises where the victim was house-sitting with the purpose to commit an offense therein. On July 31, 2009, by our own motion, we transferred this matter "to the regular calendar for briefing of the issue raised at Sentencing Oral Argument." Defendant raises the following points for our consideration:
POINT I UNDER STATE V. MARQUEZ, 277 N.J. SUPER. 162 (APP. DIV. 1995), RANKIN'S ATTEMPTED ENTRY INTO THE APARTMENT IN VIOLATION OF A RESTRAINING ORDER DID NOT ESTABLISH A PURPOSE TO COMMIT AN OFFENSE THEREIN.
POINT II IN LIGHT OF RANKIN'S TESTIMONY TO THE CONTRARY, THE JUDGE WAS NOT PERMITTED TO INFER THAT RANKIN HAD A PURPOSE TO COMMIT AN ACT OF DOMESTIC VIOLENCE INSIDE THE APARTMENT. MOREOVER, EVEN IF THE JUDGE HAD BEEN PERMITTED TO DRAW SUCH AN INFERENCE, IT IS CLEAR THAT HE DECLINED TO DO SO, AND THAT HIS DECISION TO ACCEPT RANKIN'S GUILTY PLEA WAS BASED SOLELY ON THE EXISTENCE OF THE RESTRAINING ORDER.
A. THE JUDGE WAS NOT PERMITTED TO INFER A PURPOSE TO COMMIT DOMESTIC VIOLENCE.
B. BY THRICE REFUSING TO ACCEPT RANKIN'S GUILTY PLEA, THE JUDGE CLEARLY INDICATED THAT . . . HE DID NOT BELIEVE THAT RANKIN INTENDED TO COMMIT AN ACT OF DOMESTIC VIOLENCE.
Prior to accepting a guilty plea, the judge presiding over the proceeding must be satisfied that the defendant has provided an adequate factual basis for that plea. State v. Barboza, 115 N.J. 415, 421 n.1 (1989). Rule 3:9-2 requires the judge taking the plea to personally address a defendant in order to determine whether there is a factual basis for the plea. Ibid. The factual basis must contain every element of the crime to which a defendant is pleading guilty. State ex rel. T.M., 166 N.J. 319, 333-34 (2001). Here, defendant pled guilty to attempted burglary, which requires a factual basis establishing that defendant attempted to enter into the premises where the victim was house-sitting with the purpose to commit an offense therein. N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. An attempt is committed if the conduct is purposeful with the objective to cause a particular result. State v. Smith, 322 N.J. Super. 385, 399 (App. Div.), certif. denied, 162 N.J. 489 (1999). Defendant was questioned a number of times before the court ultimately accepted the plea.
The court's first attempt to secure a factual basis for the plea was as follows:
Q. On or about April 1, 2005, last year, you were in Gloucester Township?
Q. And did you go into an apartment ... on the Black Horse Pike?
Q. Whose apartment was it, do you know?
A. ... It's a friend of my friend.
Q. Did you have permission of the person who lived there to go into the apartment?
Q. And you went in there. What were you ...