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State v. Gorman

Superior Court of New Jersey, Appellate Division

April 19, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JOHN GORMAN, Defendant-Appellant.

          Argued February 27, 2018

          On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 14-08-1450.

          Frank M. Gennaro, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Frank M. Gennaro, on the brief).

          Regina M. Oberholzer, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Regina M. Oberholzer, of counsel and on the brief).

          Before Judges Fisher, Fasciale and Moynihan.

          OPINION

          MOYNIHAN, J.S.C. (temporarily assigned).

         Defendant John Gorman appeals from an order denying his motion to withdraw a guilty plea he entered to second-degree theft by deception, N.J.S.A. 2C:20-4, [1] arguing:

POINT I
THERE WAS AN INADEQUATE FACTUAL BASIS FOR THE CRIME OF THEFT BY DECEPTION, THEREFORE DEFENDANT'S PLEA MUST BE VACATED.

         We agree that defendant's plea allocution did not establish a factual basis for each element of the charged crime because defendant did not admit he obtained the victim's money by deception. The plea judge's reliance on the theft consolidation statute, N.J.S.A. 2C:20-2(a), to accept defendant's factual basis for a different form of theft was misplaced as that statute applies only in trial settings - not to plea proceedings. We therefore reverse.

         I

         From the plea colloquy we garner that from November 1, 2008 through July 31, 2010, defendant accepted money from sixteen individuals for whom he was supposed to purchase New York Giants game tickets. Elicitation of the factual basis continued:

[Defense Counsel:] Okay. And their understanding was that in exchange for the money, that you would -- you had available to you tickets. Correct?
[Defendant:] Yes.
[Defense Counsel:] When, in fact, you did not have the tickets. Is that right?
[Defendant:] No.
[Defense Counsel:] So, so their understanding was with the money then you would give them the tickets but, in fact, that was not what you had done. Is that right?
[Defendant:] Yes.
[Defense Counsel:] Okay. And you knew you weren't going to be able to do that. Is that right?
There came a point when you knew that that was something you weren't going to be able to accomplish. Right?
[Defendant:] Yes.
[Defense Counsel:] Okay. And -- but you still had taken the money and you hadn't ...

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