On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 55-09-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 9, 2011 -
Before Judges Payne and Hayden.
Defendant, William T. Barfuss, appeals from the October 15, 2010 Law Division order denying his post-sentence motion to vacate his guilty plea to Driving Under the Influence (DUI), N.J.S.A. 39:4-50. Defendant contends that he should be allowed to vacate the guilty plea because the factual basis in support of his plea was inadequate to prove that he "operated" the vehicle as required by the DUI statute. We agree and reverse.
We discern the following facts from the record. Defendant received three traffic tickets on December 15, 2005, for DUI, N.J.S.A. 39:4-50, Careless Driving, N.J.S.A. 39:4-97 and Open Container of Alcohol in a Vehicle, N.J.S.A. 39:4-51a. On June 19, 2006, after the municipal court judge denied defendant's motion for a jury trial, defendant entered into a conditional guilty plea on this DUI charge.*fn1
During testimony concerning the factual basis for the plea, the following discussion occurred concerning defendant's operation of his car on the day of the incident.
DEFENSE COUNSEL: And where did you drive the car to?
DEFENDANT: I drove it to the municipal building.
DEFENSE COUNSEL: Prior to driving to the municipal building had you been drinking alcohol?
DEFENDANT. I don't think I - I don't - I think I drank when I got to the municipal building.
DEFENSE COUNSEL: . . . Did you have a chance to look at the police reports in this matter?
DEFENDANT: I - I read them, yes. I -- I was met by the police officer at the front of the building.
DEFENSE COUNSEL: And, in fact, did you - -the police officer thought you were under the influence. Isn't that right?
DEFENSE COUNSEL: Would you agree you should not have been driving as a result of ...