On appeal from the Superior Court of New Jersey, Hudson County, Law Division, Municipal Appeal No. 12-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and J. N. Harris.
Defendant Erin M. Burke appeals from the Law Division's de novo finding of guilt of the offense of harassment. N.J.S.A. 2C:33-4(a). We affirm.
On February 9, 2009, defendant appeared with her attorney in the Jersey City Municipal Court to defend a harassment complaint that had been lodged against her by a private citizen on October 27, 2008. After preliminary discussions between the municipal prosecutor and defense counsel were conducted, and the court advised that defendant wished to plead guilty, Judge Carlo Abad administered an oath to defendant and engaged her in a plea allocution. The court told defendant in no uncertain terms the following:
Ms. Burke, if you're going to plead guilty you have to provide the Court with a factual basis, which means you have to admit to [the court] that you did something that makes you guilty of the charge. [The court] will not accept the plea unless you give [it] a factual basis.
Defendant thereupon recounted a version of events that resulted in Judge Abad exclaiming, "at this point, [the court is] not comfortable with the factual basis that . . . [has] been given already."
Turning the examination over to the municipal prosecutor, the following exchange ensued:
[PROSECUTOR]: On October 26th, 2008 did the complaining witness contact you at all? [DEFENDANT]: No.
[PROSECUTOR]: All right. So on October 26th, 2008 you did go to [the complaining witness's] place of residence? [DEFENDANT]: Yes.
[PROSECUTOR]: And what happened? [DEFENDANT]: I saw her roommate coming back to the apartment with food, although she testified to the mediator she thought it was Andre. I attempted to communicate with the roommate, who has previously communicated with me, [but] was ignoring me. I made an epithet.
[PROSECUTOR]: How did you enter the apartment? Did you try to physically let yourself in? Did you knock? What happened? [DEFENDANT]: I tried to -- I tapped her roommate on the shoulder to try to speak with her. I did not try to force entry into the apartment. I understand that there are two doors. I would never be able to get to the second door. I know that rationally, so I wouldn't attempt to force entry.
I rang the buzzer. The complainant let me in. She claims that she did not know it was me or that it was someone else. It is possible that it was her roommate. It sounded very much ...