February 27, 2018
appeal from Superior Court of New Jersey, Law Division, Ocean
County, Indictment No. 14-08-1450.
M. Gennaro, Designated Counsel, argued the cause for
appellant (Joseph E. Krakora, Public Defender, attorney;
Frank M. Gennaro, on the brief).
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).
Judges Fisher, Fasciale and Moynihan.
MOYNIHAN, J.S.C. (temporarily assigned).
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,  arguing:
THERE WAS AN INADEQUATE FACTUAL BASIS FOR THE CRIME OF THEFT
BY DECEPTION, THEREFORE DEFENDANT'S PLEA MUST BE VACATED.
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.
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
[Defense Counsel:] Okay. And their understanding was that in
exchange for the money, that you would -- you had available
to you tickets. Correct?
[Defense Counsel:] When, in fact, you did not have the
tickets. Is that right?
[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?
[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?
[Defense Counsel:] Okay. And -- but you still had taken the
money and you hadn't ...