RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2778-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.D.D.,

1

Defendant-Appellant.

_______________________

Submitted October 14, 2021 – Decided November 10, 2021

Before Judges Gooden Brown and Gummer.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Camden County, Indictment No. 

18-09-2337.

Robin Kay Lord, attorney for appellant.

Jill S. Mayer, Acting Camden County Prosecutor, 

attorney for respondent (Cynthia Russomanno, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and on the brief).

1

 We use initials to protect the confidentiality of the victim. R. 1:38-3(c)(12).

NOT FOR PUBLICATION WITHOUT THE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.
2

A-2778-20

PER CURIAM

By leave granted, defendant appeals from the January 20, 2021 Law 

Division order denying his motion to withdraw his guilty plea prior to 

sentencing. Based on our de novo review of the plea colloquy in light of the 

applicable legal standards, we conclude the factual basis for the guilty plea was 

inadequate and reverse.

Defendant was charged in a Camden County indictment with seconddegree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the 

welfare of a child, N.J.S.A. 2C:24-4(a)(1), stemming from allegations that 

between June 23 and July 11, 2018, he committed an act of sexual contact by 

touching his five-year-old neighbor's vagina for sexual gratification.

2

 On 

August 11, 2020, defendant entered a negotiated guilty plea to the child 

endangerment count3in exchange for the State's agreement to move to dismiss 

the remaining count and recommend a sentence of probation conditioned upon 

2

 Defendant was arrested on the charges on July 12, 2018. At the time of his 

arrest, defendant was serving a special sentence of parole supervision for life 

(PSL), N.J.S.A. 2C:43-6.4(a), and subject to Megan's Law, N.J.S.A. 2C:7-1 to -

23, for an unrelated charge. His July 12 arrest resulted in a parole violation. 

3 Defendant had previously gone to trial on the charges in October 2019,

resulting in a hung jury. Prior to the re-trial, defendant entered into the plea 

agreement with the State from which this appeal arises.

 
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time served subject to PSL, Megan's Law, and Nicole's Law, N.J.S.A. 2C:14-2 

and 2C:44-8.4

On August 27, 2020, prior to defendant's scheduled sentencing date, 

defendant moved to withdraw his guilty plea for various reasons, including an 

inadequate factual basis to support the plea.

5

 On January 20, 2021, following 

oral argument, the trial judge denied defendant's motion. In an oral decision 

delivered from the bench, the judge reviewed in detail the factual basis elicited 

at the plea hearing, which we recount verbatim for context:

[DEFENSE COUNSEL]: Between June 23[], [20]18,

and July 11[], [20]18, were you in Pine Hill? 

[DEFENDANT]: Yes. 

. . . .

[DEFENSE COUNSEL]: Did you have a residence in 

Pine Hill? 

[DEFENDANT]: Yes. 

4

 Defendant had been detained since his July 12 arrest and was to remain in 

custody pending sentencing. Under the terms of the plea agreement, defendant's 

probation would be terminated upon sentencing as he would be under the 

supervision of the State Parole Board's Division of Parole as a result of the PSL 

sentence.

 

5

 On the same date, the Attorney General's Office filed a petition seeking 

defendant's civil commitment as a sexually violent predator pursuant to the 

Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. That petition is 

not pertinent to the issues raised in this appeal.
4

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[DEFENSE COUNSEL]: Was there . . . a [five-yearold] girl that lived next door to you? 

[DEFENDANT]: Yes. 

. . . .

[DEFENSE COUNSEL]: Okay. Did there come a point 

in time when you would invite her into your home? 

[DEFENDANT]: Yes. 

[DEFENSE COUNSEL]: And did you invite her into 

your home during that period of time sometime 

between June 23[] and July 11[], 2018? 

[DEFENDANT]: Yes. 

[DEFENSE COUNSEL]: And what was the purpose of 

you inviting her into your home? 

[DEFENDANT]: I was thinking about touching her. 

[DEFENSE COUNSEL]: Touching her where? 

[DEFENDANT]: Touching her sexually. 

[DEFENSE COUNSEL]: And was that for . . . purposes 

of sexual gratification on your part? 

[DEFENDANT]: Yes.

[DEFENSE COUNSEL]: And did she actually enter 

your home on those occasions? 

[DEFENDANT]: She did come in one day, one time. 
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[DEFENSE COUNSEL]: Okay. Were you seated on 

the couch? 

[DEFENDANT]: Yes. 

[DEFENSE COUNSEL]: Did you invite her to sit next 

to you on the couch? 

[DEFENDANT]: Yes. 

[DEFENSE COUNSEL]: And for what was that 

purpose? 

[DEFENDANT]: For the purpose of touching her but 

at the last minute I decided not to touch her. 

. . . .

[PROSECUTOR]: And, sir, you would agree that by 

inviting her over with the purpose to touch her vagina, 

that would constitute sexual conduct, correct? 

[DEFENDANT]: Yes. 

[PROSECUTOR]: And I don't think this was explicitly 

said, but when you said "touch her," it was specifically 

her vagina, correct? 

[DEFENDANT]: Yes.

The judge acknowledged that although the factual basis did not establish

the elements of child endangerment, it did "support an attempted child 

endanger[ment] charge" and, "under [N.J.S.A. 2C:1-8(d)(2)], attempts . . . are 

defined as lesser included offenses, notwithstanding that they require proof of 
6

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facts that may not be necessary for the proof of the substantive crime 

committed." In denying the motion, the judge unilaterally amended defendant's 

guilty plea to the lesser included offense of attempted child endangerment, 

stating: 

[D]efendant stated under oath that he invited the [fiveyear-old] victim in his home so that he could touch her 

vagina for sexual gratification. I find that his purpose 

of isolating her in his home away from her parents, 

having the victim sit on his sofa next to him is clear. It 

was to complete an act of sexual conduct. I find that 

the factual [basis] certainly shows that substantial steps 

were taken in this matter. The conduct was to touch the 

victim['s] . . . vagina. I find based on . . . [N.J.S.A.]

2C:1-8[(d)](2) . . . that defendant's statements under 

oath are certainly adequate on an attempted 

endangering of the victim.

The judge entered a memorializing order on the same date, denying defendant's 

motion on this ground as well as the other grounds raised, none of which are 

pertinent to this appeal. 

On March 4, 2021, we denied defendant's motion for leave to appeal the 

January 20, 2021 order. However, in an order filed June 4, 2021, the Supreme 

Court granted defendant's motion for leave to appeal solely on the sufficiency

of the factual basis and "summarily remanded to the . . . Appellate Division to 

consider on the merits, including consideration of State v. Barboza, 115 N.J. 415 

(1989)."
7

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In this ensuing appeal, defendant makes the following argument:

THE TRIAL COURT ERRONEOUSLY DECIDED 

THAT IT COULD UPHOLD DEFENDANT'S 

FACTUAL BASIS BY FINDING DEFENDANT 

GUILTY OF AN ATTEMPTED CRIME IN LIEU OF

THE ACTUAL CRIME LISTED IN THE PLEA 

AGREEMENT.

A. The Trial Court Erroneously Amended 

Defendant's Plea From Child 

Endangerment To Attempted Child 

Endangerment, Which Are Separate 

Criminal Offenses.

B. Because Defendant Did Not Agree To 

Plead Guilty To Attempted Child 

Endangerment, Defendant's Plea Was Not 

Knowing, Intelligent, And Voluntary.

C. Pursuant To The Court's Ruling In State 

v. Barboza, . . . The Only Appropriate 

Remedy Here Is To Vacate Defendant's 

Guilty Plea So That Defend[an]t May 

Either Re-Plead Or Proceed To Trial.

We begin our analysis by acknowledging the legal principles that govern 

this appeal. Our "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) (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 

366, 378 (1995)). "An appellate court is in the same position as the trial court 

in assessing whether the factual admissions during a plea colloquy satisfy the 
8

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essential elements of an offense." Id. at 404. "[I]f a factual basis has not been 

given to support a guilty plea, the analysis ends and the plea must be vacated." 

Ibid. 

"[A]t a plea hearing, a judge must be satisfied that the defendant has given 

a factual account that makes him guilty of the crime." Id. at 405 (citing R. 3:9-

2). Under Rule 3:9-2, "a court shall not accept a guilty plea 'without first 

questioning the defendant personally, under oath or by affirmation, and 

determining by inquiry of the defendant and others, in the court's discretion, that 

there is a factual basis for the plea.'" Ibid. (quoting R. 3:9-2). The necessity for 

a factual basis to support a guilty plea is rooted in due process. McCarthy v. 

United States, 394 U.S. 459, 466–67 (1969). "The principal purpose of the 

factual-basis requirement of Rule 3:9-2 is to 'protect a defendant who is in the 

position of pleading voluntarily with an understanding of the nature of the 

charge but without realizing that his conduct does not actually fall within the 

charge.'" Tate, 220 N.J. at 406 (quoting Barboza, 115 N.J. at 421). Thus, before 

accepting a guilty plea, "a defendant must acknowledge facts that constitute the 

essential elements of the crime." State v. Gregory, 220 N.J. 413, 420 (2015) 

(citing State v. Sainz, 107 N.J. 283, 293 (1987)). 
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To that end, "[t]he factual basis for a guilty plea can be established by a 

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

the underlying facts constituting essential elements of the crime." Id. at 419 

(citing State v. Campfield, 213 N.J. 218, 231 (2013)). "[I]f an appellate court 

subsequently determines that a plea has been accepted without an adequate 

factual basis, the plea, the judgment of conviction, and the sentence must be 

vacated, the dismissed charges reinstated, and defendant allowed to re-plead or

to proceed to trial." Barboza, 115 N.J. at 420.

Here, we agree with the judge that defendant failed to establish a factual 

basis for child endangerment.

6 Significantly, defendant did not admit to 

6 The State counters that State v. Sanders, 230 N.J. Super. 233 (App. Div. 1989), 

supports its position that defendant's factual basis was adequate to establish a 

child endangerment charge. We disagree. In Sanders, we found "a sufficient 

factual basis to sustain [a] plea of guilty" to child endangerment "subject to 

prosecution in this State" where defendant admitted leaving Atlantic City "by 

bus expressly for purposes of abandoning her two-day old baby in Philadelphia." 

Id. at 235-236. The infant "was discovered in a restroom of a bus station" in 

Philadelphia. Id. at 235. We posited that "the sole issue" was "whether the trial 

court properly determined that New Jersey has jurisdiction to prosecute 

defendant for the offense of endangering the welfare of a child and whether a 

sufficient factual basis was given." Id. at 236. We held "[i]t is clear from the 

facts admitted here that, by leaving New Jersey with the express purpose of 

abandoning the child in Pennsylvania, defendant endangered the welfare of the 

child in this [S]tate." Id. at 236-37. We determined that although defendant's 

conduct in this State "may have constituted only an attempt to endanger in New 

Jersey," the fact that defendant "took a substantial step in this state towards the 
10 A-2778-20

engaging in sexual conduct with the victim. On the contrary, defendant clearly 

stated he did not touch the victim on her vagina as he had intended, which was 

the sexual conduct that formed the evidential basis for the child endangerment 

charge. We part company with the judge, however, when she determined she 

had the authority to unilaterally modify the charge to which defendant pled 

guilty to a lesser included offense in order to sustain the guilty plea. 

Our Supreme Court has explained: 

Nowhere do New Jersey's court Rules 

contemplate a modification of a charge pleaded to 

either unilaterally or by arrangement with the 

prosecutor. The discretion of the trial court in assessing 

a plea is limited to assuring that the criteria for a valid 

plea of guilty have been met. Rule 3:9-2 makes clear 

that a plea is either accepted in full or rejected in full. 

There is no intermediate status for a plea. A plea 

agreement is an all-or-nothing arrangement. Accord

People ex rel. Daley v. Suria, 490 N.E.2d 1288, 1290 

(Ill. 1986) (the authority of a trial court that finds that 

a plea is not supported by a factual basis is limited to 

rejecting the plea and does not extend to finding 

defendant guilty, without a trial, of a lesser-included 

offense to which defendant had not entered a plea). 

ultimate act of neglecting the child" sufficed to establish a factual basis for child 

endangerment. Id. at 237. Thus, the import of our ruling in Sanders was that 

the defendant committed a completed act of child endangerment, albeit in a 

different state, to confer jurisdiction in this State. Ibid. The facts here are 

clearly distinguishable because there is neither a jurisdictional question nor a 

completed act of child endangerment. Although the factual basis evidenced a 

substantial step towards the ultimate act of child endangerment, defendant never 

consummated the crime.
11 A-2778-20

. . . . 

Moreover, to allow a court to direct the entry of 

a guilty plea to a lesser-included criminal offense 

without defendant's consent is tantamount to permitting 

a court to direct a verdict against a defendant in a 

criminal case. See State v. Collier, 90 N.J. 117, 122 

(1982) (a trial court's directing a verdict of guilty to a 

lesser-included offense violates defendant's federal and 

state constitutional rights). 

It would also violate Rule 3:9-2, which prohibits 

the use of an admission elicited in support of a refused 

guilty plea. 

[Barboza, 115 N.J. at 422-23.]

Additionally, to allow a court to unilaterally modify the charge to which 

the defendant pled guilty without the defendant's consent would violate "the 

spirit of Rule 3:9-3, which limits the role of trial judges in plea discussions." Id.

at 422. Accordingly, we reverse the denial of defendant's motion to withdraw 

his guilty plea, vacate defendant's guilty plea, and remand for defendant to replead or proceed to trial. See Campfield, 213 N.J. at 232 ("The remedy for an 

inadequate factual basis is an order vacating the guilty plea and restoring both 

parties to their positions prior to the trial court's acceptance of the plea."). 
12 A-2778-20

Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.