STATE OF NEW JERSEY VS. RAINLIN VASCO(15-09-0641, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4435-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAINLIN VASCO,

Defendant-Appellant.
______________________________________________

Submitted March 14, 2017 – Decided October 20, 2017

Before Judges Espinosa, Suter, and Guadagno
(Judge Espinosa dissenting).

On appeal from the Superior Court of New
Jersey, Law Division, Union County,
Accusation No. 15-09-0641.

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

Grace H. Park, Acting Union County
Prosecutor, attorney for respondent
(Meredith L. Balo, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM
 Defendant Rainlin Vasco appeals his judgment of conviction

for fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d). We affirm.

I.

The following facts are taken from the record. On August

6, 2015, Elizabeth police responded to a report of domestic

violence at an apartment occupied by defendant and his mother.

Defendant and N.C. began to date in January 2015. N.C. became

pregnant with defendant's child and moved in with defendant and

his mother a few weeks before this incident. When N.C. told

defendant she wanted to go back to her mother's house, he became

angry and grabbed her. N.C. pushed defendant and he "got

madder." Defendant took out a knife, started walking toward

N.C. and told her he was going to cut her neck "wide open."

N.C. yelled for defendant's mother, R.P., to come and R.P. took

the knife from defendant. Defendant then jumped on N.C. and

began punching her in the leg until R.P. pulled him off. R.P.

dialed 9-1-1 and defendant ran out of the house before police

arrived.

Defendant was initially charged with simple assault,

N.J.S.A. 2C:12-1(a), third-degree terroristic threats, N.J.S.A.

2C:12-3(a), and third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d).

2 A-4435-15T2
 On September 16, 2015, pursuant to a plea agreement,

defendant waived his rights to indictment and trial by jury and

agreed to plead guilty to an accusation charging him with

fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(d).

During his guilty plea allocution, defendant provided the

following responses to questions by his counsel:

Q: Mr. Vasco, on August 6, 2015, were you
in the City of Elizabeth?

A: Yes, I was.

Q: And on that date, did you possess a
knife?

A: Yes, I did.

Q: And was it your understanding that it
was against the law to possess that
knife?

A: Yes, it was.

When defendant's counsel indicated he had no further

questions, the assistant prosecutor asked to confer with him.

Counsel then indicated he had a follow-up question:

Q: And did you — and you didn't have a
lawful purpose for that knife, right?

A: I had a lawful — I had a lawful
purpose, like, I didn't want to do
anything unlawful. I just possessed
it.

3 A-4435-15T2
 The judge then indicated he could not accept the plea

because defendant had not presented an adequate factual basis

and suggested the parties return after the lunch break.

When they returned, defendant provided the following

responses to his counsel's questions:

Q: Mr. Vasco, on August 6, 2015, you were
in the City of Elizabeth, correct?

A: Yes, I was.

Q: And you were in possession of a knife,
right?

A: Yes.

Q: And you didn't have a lawful purpose
for that knife, right?

A: I did not.

Q: Okay.

After confirming that defendant understood that he was

still under oath, the judge indicated he was satisfied defendant

provided an adequate factual basis for his guilty plea and

scheduled sentencing for October 30, 2015.

On that date, defendant requested an adjournment to apply

for pretrial intervention (PTI). Defendant's PTI application

was subsequently denied and he appealed.

On February 11, 2016, while defendant's PTI appeal was

pending, defendant, represented by new counsel, filed a motion

4 A-4435-15T2
to withdraw his guilty plea alleging he received ineffective

assistance from his plea counsel and had not presented an

adequate factual basis for his guilty plea. Later that month

defendant withdrew his appeal of the denial of his PTI

application.

On May 16, 2016, a different judge heard argument on

defendant's motion. Defendant submitted a certification in

which he claimed that during his argument with N.C., he noticed

a knife nearby and was afraid N.C. would use the knife against

him. He picked up the knife to move it away from N.C. and put

it in a "safer location" away from N.C. Defendant denied using

or intending to use the knife as a weapon.

Defendant also provided a statement N.C. gave to his

investigator in which she recanted her prior allegation:

Rainlin Vasco did not pull out the knife on
the day of the incident. At the heat of the
moment we were both upset and arguing
verbally, but it never got any further than
that. Both me and his mother, [R.P.] wanted
him to get help at a Trinitas mental hospital,
but were informed that the police needed to
be called before anything. Rainlin's intent
was and is never to hurt me in any way and I
do not see him as a threat.

R.P. also provided a statement, but she confirmed that

defendant possessed a knife:

5 A-4435-15T2
 I was in my house in my living room and I
heard them arguing and I know he had a knife
and I got very nervous and I know that my son,
Rainlin, is a very nervous person. I
understood that I had to call hospital crisis
and when I did, the hospital told me that I
had to call the police for them to come to the
house. I was just asking them to talk to a
psychologist to speak to my son, Rainlin, and
I never thought that this call would go any
further than this. I ask that you excuse me
for any misunderstanding.

The judge provided a thorough analysis of the four factors

set forth in State v. Slater, 198 N.J. 145 (2009), which

addressed the circumstances under which a guilty plea may be

withdrawn.

The judge found there was an adequate factual basis for

defendant's plea, noting that during defendant's allocution, he

affirmed under oath that he did not have a lawful purpose when

he possessed the knife on August 6, 2015. The judge also

observed that defendant was pleading to unlawful possession of a

weapon and not possession of a weapon for an unlawful purpose.

The judge rejected defendant's claim that he received

ineffective assistance from plea counsel, noting that

defendant's plea agreement was "generous and beneficial" to him

as he pled guilty to a reduced fourth-degree charge with a

recommendation of a non-custodial sentence of probation.

6 A-4435-15T2
 The judge found defendant had not made a colorable claim of

innocence, noting that defendant's claim was contradicted by

N.C.'s sworn statement to police at the time of the incident,

and by the 9-1-1 call made by R.P. The judge listened to a

recording of the 9-1-1 call1 and read the statement R.P. made to

the dispatcher into the record: "my son took [a] knife and

threatened his girlfriend . . . [A]nd said he was going to kill

her with [the knife.]"

The judge found that withdrawal of the guilty plea would

prejudice the State as the victim, N.C., may not be cooperative

testifying at trial.

The judge then proceeded to sentence defendant in

accordance with the plea agreement to a two-year term of

probation with the conditions that he submit to a substance

abuse evaluation and follow recommendations, and enter and

successfully complete a batterer's intervention program.

Defendant appealed, but initially only challenged his

sentence as excessive. When we heard the matter on an excessive

sentence oral argument (ESOA) calendar, see Rule 2:9-11, it

became apparent that defendant was challenging the denial of his

motion to withdraw his plea. We then transferred the appeal to

1
The 9-1-1 recording was not provided to us.

7 A-4435-15T2
a plenary calendar. Defendant now presents the following

argument:

DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA
WAS WRONGFULLY DENIED.

II.

"Before a court can accept a defendant's guilty plea, it

first must be convinced that (1) the defendant has provided an

adequate factual basis for the plea; (2) the plea is made

voluntarily; and (3) the plea is made knowingly." State v. Lipa,

219 N.J. 323, 331 (2014) (citing Rule 3:9-2). "Once it is

established that a guilty plea was made voluntarily, it may only

be withdrawn at the discretion of the trial court." Id. at 332

(citing State v. Simon, 161 N.J. 416, 444 (1999)). A trial

judge's finding that a plea was voluntarily and knowingly

entered is entitled to [our] deference so long as that

determination is supported by sufficient credible evidence in

the record. . . . [A]nd will be reversed on appeal only if there

was an abuse of discretion which renders the lower court's

decision clearly erroneous. Ibid. (quoting Simon, supra, 161

N.J. at 444).

"[D]ifferent burdens . . . attach to pre-sentence and post-

sentence motions to withdraw a plea; pre-sentence motions to

withdraw a plea are governed by the "interest of justice"

8 A-4435-15T2
standard in Rule 3:9-3(e), while post-sentence motions are

subject to the "manifest injustice" standard in Rule 3:21-1."

State v. McDonald, 211 N.J. 4, 16 (2012) (quoting Slater, supra,

198 N.J. 158). Because defendant attempted to withdraw his plea

prior to sentence, the Slater factors are evaluated under the

more relaxed interest of justice standard of Rule 3:9-3.

Defendant relies on his certification and the statements of N.C.

and R.P. in arguing the judge erred in concluding he had not

made a colorable claim of innocence.

To prevail on the first Slater factor, defendants must make

a colorable claim of innocence by presenting "specific, credible

facts and, where possible, point to facts in the record that

buttress their claim." Slater, supra, 198 N.J. at 158.

Defendant's claim, that he possessed the knife merely to

move it away from N.C. so she would not use it against him, is

flatly contradicted by N.C.'s initial statement to police, and

R.P.'s 9-1-1 call. In her statement to defendant's

investigator, R.P. acknowledged she knew defendant "had a knife

and . . . got nervous." Even N.C.'s retraction, that defendant

"did not pull out the knife," did not squarely support

defendant's version that N.C. was the aggressor and he moved the

knife to keep it away from her. We are satisfied that defendant

9 A-4435-15T2
has not presented "specific credible facts" in support of his

claim of innocence.

The second Slater factor, the nature and strength of

defendant's reasons for withdrawal, "focuses on the basic

fairness of enforcing a guilty plea by asking whether defendant

has presented fair and just reasons for withdrawal, and whether

those reasons have any force." Slater, supra, 198 N.J. at 159.

We note that defendant did not move to withdraw his guilty

plea until after his application for PTI was denied. Moreover,

defendant presents no explanation why he failed to assert the

current version before entering his guilty plea. See McDonald,

supra, 211 N.J. at 26 ("In the absence of a colorable claim of

innocence or a credible explanation for defendant's failure to

assert his defenses before his guilty plea, the balancing of the

Slater factors supports the decision . . . to deny defendant's

motion to withdraw his plea of guilty.").

Defendant claims the judge erred in considering his

allocution where he admitted that he did not have a lawful

purpose for possessing the knife. Instead, defendant urges that

we focus on his initial response that he had a lawful purpose in

possessing the knife and "didn't want to do anything unlawful."

After the judge refused to accept defendant's initial

allocution, defendant returned to court after a recess and

10 A-4435-15T2
acknowledged, still under oath, that he did not have a lawful

purpose for possessing the knife.

Defendant claims his possession of the knife was

"manifestly appropriate" because he was attempting to remove it

to prevent N.C. from using it. However, the motion judge

rejected this version along with N.C.'s recantation, noting

"these facts are contradicted by [N.C.'s] statement given to the

police on the night of the incident, [R.P.'s 9-1-1] calls and

the defendant's original plea allocution." Defendant makes no

claim that he was pressured or coerced into changing his

allocution2 and presents no evidence of same.

Even though our November 10, 2016 order transferring this

matter to our plenary calendar, directed the parties to submit

"briefs limited to an analysis of the Slater . . . issues[,]"

our dissenting colleague now argues a Slater analysis is not

2
In his brief, defendant claims for the first time that during
his initial allocution, he attempted to explain why his
possession of the knife was lawful, but during the recess his
counsel "convinced [him] he was guilty regardless of his
explanation." As this claim was not presented to the motion
judge where it could have been "subjected to the rigors of an
adversary hearing" and is unsupported by any record evidence, we
do not consider it now. State v. Robinson, 200 N.J. 1, 18-19
(2009) ("The jurisdiction of appellate courts rightly is bounded
by the proofs and objections critically explored on the record
before the trial court by the parties themselves.").

11 A-4435-15T2
appropriate, as the only issue before us is whether defendant

failed to provide an adequate factual basis for his guilty plea.

"The standard of review of a trial court's denial of a

motion to vacate a plea for lack of an adequate factual basis is

de novo." State v. Urbina, 221 N.J. 509, 528 (2015) (quoting

State v. Tate, 220 N.J. 393, 404 (2015)). Tate instructs that

"when the issue is solely whether an adequate factual basis

supports a guilty plea, a Slater analysis is unnecessary." Id.

at 404 (Emphasis added). However, defendant's motion to

withdraw his plea was based not only on his claim that the

factual basis was inadequate, but on his allegation that he had

demonstrated a colorable claim of innocence based on new

statements by N.C. and R.P. A review of the later claim

required a Slater analysis.

Relying on State v. Gregory, 220 N.J. 413 (2015), the

dissent argues that defendant's factual basis is inadequate as a

matter of law as "he did not admit to circumstances that were

manifestly inappropriate." We find Gregory factually

inapposite.

In Gregory, the defendant pled guilty to possessing heroin

with intent to distribute while within 1000 feet of a school,

N.J.S.A. 2C:35-7. Id. at 417. At his plea hearing, the

defendant acknowledged possessing several packages of heroin

12 A-4435-15T2
near a school but never indicated his intent to distribute that

heroin, an essential element of the crime. Id. at 421.

Here, defendant initially balked when he was first asked if

he had lawful purpose for possessing the knife, explaining he

had no intent "to do anything unlawful." After the judge

refused to accept the plea, defendant returned after a recess

and, in response to questions by his attorney, admitted that he

did not have a lawful purpose for possessing the knife.

While the dissent would have preferred a more expansive and

detailed admission, that is simply not required to establish a

factual basis for N.J.S.A. 2C:39-5(d). Recently, our Supreme

Court reviewed the three classes of possessory weapons offenses

and noted that while "possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d), calls for an inquiry into the

intent of the possessor of a weapon, intent is not an element of

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). State v.

Montalvo, 229 N.J. 300, 316-17 (2017). The "proper . . .

inquiry is not one of intent, 'but whether the circumstances

surrounding the possession were manifestly appropriate' for

lawful use." Id. at 317 (quoting State v. Colon, 186 N.J. Super.

355, 357 (App. Div. 1982)). Such an inquiry must focus on "the

facts of the case and not . . . the subjective intent of the

actor." Ibid.

13 A-4435-15T2
 In his brief, defendant claims he told probation that "his

possession of the knife was lawful months before the withdrawal

motion was filed." However, defendant's statement to probation,

("Yeah we had an argument and I picked up a knife but I wasn't

gonna use it."), is more consistent with his allocution than his

subsequent version that he was only trying to keep the knife

away from N.C.

Focusing on the "circumstances surrounding the possession"

of the knife, see Montalvo, supra, 229 N.J. at 317, as

established by defendant's allocution, his statement to

probation, N.C.'s initial statement to police, and R.P.'s 9-1-1

call, we are satisfied that defendant's admission that he did

not have a lawful purpose in possessing the knife was sufficient

to establish a violation of unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d).

There was ample support in the record to support the

judge's conclusion that defendant failed to demonstrate that

enforcing the guilty plea would violate the basic fairness

concept of the second Slater factor.

The third and fourth Slater factors (plea made pursuant to

a negotiated plea agreement, and prejudice to the State if plea

is withdrawn) weigh against defendant.

14 A-4435-15T2
 We are satisfied that defendant made an adequate factual

basis for his guilty plea and the judge did not abuse his

discretion in making any of the Slater findings.

Affirmed.

15 A-4435-15T2
________________________________

ESPINOSA, J.A.D., dissenting.

The majority has marshalled facts gleaned from the

investigation that might well support a conviction of defendant

if presented in the form of competent evidence at trial. It is

questionable that the State could prove the "facts" the majority

has "taken from the record" because the essential facts relied

upon are derived from a statement N.C. gave that she has largely

disavowed, and the description of a 911 call from defendant's

mother, not in the record provided to us, that apparently conflicts

with her current account of events. But the issue before us is

not whether the State could prove defendant's guilt; it is whether

he admitted his guilt. And it is clear he did not admit facts

relied upon by the majority.

In my view, the threshold for our review must be a recognition

of the difference between a conviction following a trial, in which

the defendant has been afforded his constitutional rights, and a

conviction following a guilty plea, in which he has waived those

rights. "[A] guilty plea is the final relinquishment of the most

cherished right--to be presumed innocent of crime until a jury of

one's peers has determined guilt beyond a reasonable doubt." State

v. Slater, 198 N.J. 145, 154 (2009) (quoting State v. Smullen, 118

N.J. 408, 414 (1990)).
 When a defendant pleads guilty, he or she
waives important constitutional rights,
"including the right to avoid self-
incrimination, to confront his or her
accusers, and to secure a jury trial." A
defendant who pleads guilty also
relinquishes the right to require that the
State prove to the jury every element of the
offense beyond a reasonable doubt.

[State v. Gregory, 220 N.J. 413, 418 (2015)
(citations omitted).]

"Before a court can accept a defendant's guilty plea, it

first must be convinced that (1) the defendant has provided an

adequate factual basis for the plea; (2) the plea is made

voluntarily; and (3) the plea is made knowingly." State v. Lipa,

219 N.J. 323, 331 (2014) (citing R. 3:9-2). "In short, a trial

court must not accept a guilty plea unless it is satisfied that

the defendant is in fact guilty." Ibid.

"[O]ur law requires that each element of the offense be

addressed in the plea colloquy." State v. Campfield, 213 N.J.

218, 231 (2013). The Court has made it clear the defendant must

be the source for establishing the factual foundation, either by

"a defendant's explicit admission of guilt or by a defendant's

acknowledgment of the underlying facts constituting essential

elements of the crime." Gregory, supra, 220 N.J. at 419 (citing

Campfield, supra, 213 N.J. at 231). "[T]he trial court must be

satisfied from the lips of the defendant that he committed the

2 A-4435-15T2
acts which constitute the crime." State ex rel. T.M., 166 N.J.

319, 327 (2001) (citation omitted).

In Gregory, the Court considered the adequacy of a factual

basis for a guilty plea where, like here, circumstances supporting

an inference of guilt were not acknowledged by the defendant. The

defendant entered a guilty plea to a charge of possessing heroin

with intent to distribute within 1,000 feet of a school property,

N.J.S.A. 2C:35-7. "At his plea hearing, defendant admitted that

he knowingly possessed heroin contained in individual, stamp-sized

packages with specific markings while within 1000 feet of school

property." Gregory, supra, 220 N.J. at 417. He "did not state

the number of small, individually packaged, specifically marked

baggies that he possessed, or otherwise describe the amount of

heroin in his possession." Id. at 421, n.1.

Among the issues raised in his direct appeal, the defendant

contended he did not provide an adequate factual basis for his

guilty plea because he did not admit an intent to distribute

heroin. Id. at 418. Relying upon T.M., supra, 166 N.J. at 327,

the State argued "defendant's admissions provide a sufficient

factual basis for his guilty plea when 'examined in light of all

surrounding circumstances and in the context of [the] entire plea

colloquy.'" Gregory, supra, 220 N.J. at 418.

3 A-4435-15T2
 Certainly, if the court could assess the defendant's

admissions "in light of all surrounding circumstances," even those

not explicitly admitted by the defendant, the factual basis given

in Gregory would appear to be adequate. But, the Court explicitly

rejected the proposition that surrounding circumstances, not

acknowledged by the defendant, could fill the gaps in a defendant's

plea colloquy. Although a trial court may look at "surrounding

circumstances," this only permits "trial courts to consider at the

plea hearing stipulations and facts admitted or adopted by the

defendant when assessing the adequacy of a defendant's factual

basis." Id. at 420. The Court rejected the State's urging "to

presume defendant's intent to distribute from the way the narcotics

were packaged," instructing, "a court is not permitted to presume

facts required to establish 'the essential elements of the crime.'"

Id. at 421 (quoting T.M., supra, 166 N.J. at 333). And in a

companion case, decided the same day as Gregory, the Court stated,

A defendant must do more than accede to a
version of events presented by the
prosecutor. Rather, a defendant must admit
that he engaged in the charged offense and
provide a factual statement or acknowledge
all of the facts that comprise the essential
elements of the offense to which the
defendant pleads guilty.

[State v. Perez, 220 N.J. 423, 433-34 (2015)
(emphasis added).]

4 A-4435-15T2
 The Court recognized that "in certain limited circumstances,

a particular element of an offense may address a fact that is

beyond a defendant's knowledge," such as "whether an unlawful

transaction occurred within 1000 feet of a school." Gregory,

supra, 220 N.J. at 421. Even when there is such a predictable

void in the defendant's knowledge, there is no exception to the

rule that the defendant admit the essential elements of the crime.

Instead, "[t]o satisfy such an element, prosecutors should make

an appropriate representation on the record at the time of the

hearing, so that the defendant can acknowledge or dispute it."

Ibid.

Turning to the facts before it, the Court noted the following

in reversing defendant's conviction:

During his plea colloquy, defendant admitted
to knowingly or purposely possessing heroin
-- albeit not on his person -- while within
1000 feet of a school, and that he knew the
heroin was individually packaged in small,
specifically marked baggies. However, the
"intent to distribute" element of the
offense was absent from defendant's
testimony.

[Ibid.]

The facts admitted by defendant here fell even further from

an acknowledgment of circumstances that would support a

conviction.

5 A-4435-15T2
 The essential elements of an offense under N.J.S.A. 2C:39-

5(d) are (1) there was a weapon, (2) defendant possessed the weapon

knowingly, and (3) the defendant's possession of the weapon was

under circumstances not manifestly appropriate for a lawful use.

Model Jury Charge (Criminal), "Unlawful Possession of a Weapon,

N.J.S.A. 2C:39-5d" (2005).

During the course of his plea colloquy, defendant admitted

he knowingly possessed a weapon. He admitted little else. In the

first attempted plea colloquy, he stated, "I had a lawful purpose,

like, I didn't want to do anything unlawful. I just possessed

it." The second attempt at establishing a factual basis yielded

the following:

Q. And you didn't have a lawful
purpose
for that knife, right?

A. I did not.

As the majority has noted, in State v. Montalvo, 229 N.J. 300

(2017), the Court distinguished between the elements of possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), which

"calls for an inquiry into the intent of the possessor of a

weapon," and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d),

for which "intent is not an element." Id. at 317.

The Court instructed that the proper inquiry is "whether the

circumstances surrounding the possession were manifestly

6 A-4435-15T2
appropriate" for lawful use. Ibid. (quoting State v. Colon, 186

N.J. Super. 355, 357 (App. Div. 1982)) (per curiam). The Court

reviewed circumstances a jury might consider to determine "whether

the use of a weapon is manifestly appropriate or inappropriate

under the circumstances." Ibid. The Court cited cases in which

the circumstances supported a conviction for unlawful possession:

State v. Lee, 96 N.J. 156, 164-67 (1984) (defendant possessed

scissors taped to simulate stiletto while burglarizing home);

State v. Wright, 96 N.J. 170, 172-73 (1984), appeal dismissed, 469

U.S. 1146, 105 S. Ct. 890, 83 L. Ed. 2d 906 (1985) (defendant

possessed Exacto knife, strapped to leg, while wandering

neighborhood) as well as cases in which the circumstances failed

to support a conviction, such as when the defendant possessed a

pocket knife in his pocket while walking down the street, State

v. Blaine, 221 N.J. Super. 66, 70-71 (App. Div. 1987) or when the

defendant possessed a pocket knife but did not display it while

committing a robbery, State v. Riley, 306 N.J. Super. 141, 149-51

(App. Div. 1997).

In my view, it was necessary for defendant to admit to

circumstances that were manifestly inappropriate to provide an

adequate factual basis for his guilty plea. Although the majority

has cited circumstances derived from statements made by witnesses

who have since recanted, none of these circumstances were

7 A-4435-15T2
acknowledged by defendant. Without defendant's admission that

such circumstances were present, his factual basis is no more

adequate than the cases noted by the Supreme Court that failed to

support a conviction.

Finally, I address the appropriate standard of review. As

the majority acknowledges, "[t]he standard of review of a trial

court's denial of a motion to vacate a guilty plea for lack of an

adequate factual basis is de novo." State v. Tate, 220 N.J. 393,

403-04 (2015). But the majority also posits that, because

defendant's motion to withdraw his guilty plea was based upon both

an argument that his factual basis was inadequate and that a Slater

analysis warranted granting his motion, the de novo review of the

factual basis for his guilty plea must give way to a Slater

analysis. The support for this position is a single word in a

sentence in Tate that is taken out of context, "when the issue is

solely whether an adequate factual basis supports a guilty plea,

a Slater analysis is unnecessary." Id. at 404 (Emphasis added).

A review of the opinion reveals that, when a defendant

contends his guilty plea lacks a sufficient factual basis, the

Court clearly did not intend to limit appellate review to a Slater

analysis merely because other arguments were raised. The Court

noted the distinction between the review of cases in which the

plea is supported by an adequate factual basis and those in which

8 A-4435-15T2
it is not. As to the latter case, we exercise a de novo review

of that issue, which has dispositive effect. As the Court stated,

"In short, if a factual basis has not been given to support a

guilty plea, the analysis ends and the plea must be vacated." Id.

at 404.

The Court explained that a different standard of review

applies "where the plea is supported by an adequate factual basis

but the defendant later asserts his innocence." Ibid. Under

those circumstances, the Slater analysis applies and we review the

trial court's decision pursuant to an abuse of discretion standard.

Ibid.

From the first, defendant has asserted he should be permitted

to withdraw his guilty plea because it was not supported by an

adequate factual basis. Therefore, our review must begin there

and, in my view, our analysis ends there with the conclusion that

defendant's plea must be vacated. For these reasons, I

respectfully dissent.

9 A-4435-15T2