SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1016-22 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

ROBERT VAN PELT, 

 Defendant-Appellant. 

_______________________

Argued December 13, 2023 – Decided February 6, 2024 

Before Judges Firko and Susswein. 

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Municipal Appeal No. 5-

22. 

Matthew Whalen Reisig argued the cause for appellant 

(Reisig Criminal Defense & DWI Law, LLC, attorneys;

Michael H. Ross, of counsel; Luke C. Kurzawa, on the 

brief). 

Alexis R. Agre, Assistant Prosecutor argued the cause 

for respondent (LaChia Lyn Bradshaw, Burlington 

County Prosecutor; Alexis R. Agre, of counsel and on 

the brief). 

NOT FOR PUBLICATION WITHOUT THE 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-1016-22

PER CURIAM 

Defendant Robert Van Pelt appeals from an October 18, 2022 Law 

Division order denying his motion to vacate the guilty plea to driving while 

intoxicated (DWI) he entered in Moorestown Municipal Court on December 6, 

2017. Defendant contends the municipal court judge did not elicit an adequate 

factual basis to support the drunk driving conviction. After carefully reviewing 

the record in light of the governing legal principles, we affirm. 

We discern the following facts and procedural history from the record. 

On September 27, 2017, defendant was stopped for motor vehicle violations and 

charged with: DWI, N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; 

careless driving, N.J.S.A. 39:4-97; improper display of license plates, N.J.S.A. 

39:3-33; improper lamps or reflectors, N.J.S.A. 39:3-61; consumption of alcohol 

in a motor vehicle, N.J.S.A. 39:4-51(a); open container of alcohol in a motor 

vehicle, N.J.S.A. 39:4-51(b); possession of controlled dangerous substance in a 

motor vehicle, N.J.S.A. 39:4-49.1; possession of marijuana under fifty grams, 

N.J.S.A. 2C:35-10(a)(4); and possession of drug paraphernalia, N.J.S.A. 2C:36-

2. 

On December 6, 2017, defendant appeared with his attorney in the 

Moorestown Municipal Court to enter guilty pleas to the charges of DWI and 
3 A-1016-22

possession of a marijuana under fifty grams.1 Pursuant to a plea agreement with 

the prosecutor, the remaining charges were dismissed. 

The municipal court judge personally addressed defendant to confirm he 

was knowingly and voluntarily waiving his rights and to establish a factual basis 

for the guilty plea. The following exchange occurred during the plea colloquy: 

THE COURT: Okay. Let me ask you some questions. 

On September 27th, 2017, were you in North Hanover 

and while in North Hanover did you have in your 

possession a certain amount of marijuana that was 

under [fifty] grams? 

DEFENDANT: Yes, your Honor. 

THE COURT: And then in addition, on September 

27th, 2017, were you operating a vehicle in North 

Hanover? 

DEFENDANT: Yes, [Y]our Honor. 

THE COURT: And prior to operating that vehicle, had

you consumed any alcohol? 

DEFENDANT: Yes. 

THE COURT: And what type of alcohol had you 

consumed? 

DEFENDANT: Beer. 

THE COURT: And do you know how many beers you 

had? Were they— 

1

 The marijuana guilty plea conviction is not before us in this appeal. 
4 A-1016-22

DEFENDANT: Four. 

THE COURT: —in glasses or were they cans or were 

they bottles? 

DEFENDANT: They were bottles. 

THE COURT: Bottles of beer? 

DEFENDANT: Yeah. 

THE COURT: But you don't recall how many beers you 

had? 

DEFENDANT: Four. 

THE COURT: At least four or— 

DEFENDANT: Four. 

THE COURT: —just four? 

DEFENDANT: Four. 

THE COURT: And then after consuming the alcohol, 

you got into your car and operated it, is that correct? 

DEFENDANT: Yes, [Y]our Honor. 

THE COURT: Okay. And in looking at the totality of

the tickets here, the police officer pulled you over 

because— 

DEFENDANT: For speeding. 

THE COURT: —one of more of your lamps that should 

be illuminating your license plate was not illuminating 

it properly, as well as speeding, is that correct? 
5 A-1016-22

DEFENDANT: Yeah, that's what he pulled me over for. 

THE COURT: I'm sorry. What did you say? 

DEFENDANT: Yeah, that's what he pulled me over for. 

THE COURT: Okay. Do you have any reason to 

believe that he was untruthful? 

DEFENDANT: No. 

THE COURT: Okay. And, sir, was anybody in the 

vehicle with you? 

DEFENDANT: No. 

THE COURT: And do you agree that the consumption 

of the alcohol impaired your ability to safely operate 

your vehicle and that you did exceed the posted speed 

limit? 

DEFENDANT: Yes. 

THE COURT: But no accident occurred, correct? 

DEFENDANT: No. 

THE COURT: Okay. And that's good. All right. And

was there a [blood alcohol content (BAC)]? 

MUNICIPAL PROSECTUOR: There was, [j]udge, 

.13. I independently confirmed with an Alcotest 

calculator it was a true reading. I would submit S-1 [the 

Alcotest results]—

THE COURT: Thank you. 

MUNICIPAL PROSECUTOR: —in evidence. 
6 A-1016-22

THE COURT: Okay. I see that [defense counsel] has 

initialed this. I'm going to also initial it with today's 

date. And, Mr. Prosecutor, would you mind initialing 

this as well, please? So S-1 indicates a .13 percent. 

You're going to tell the [c]ourt that you only had four 

beers and you ended up with a .13 percent? That's a 

high level of alcohol. 

DEFENDANT: I haven't eat—I didn't eat at all that day, 

[Y]our Honor. I just—

THE COURT: Oh, you hadn't eaten that day— 

DEFENDANT: I was—I was going—

 

THE COURT: —you just were drinking? 

DEFENDANT: —actually to go and— 

THE COURT: Okay. This was only 6:28—no, 10:24 in 

the evening, and you hadn't eaten all day? 

DEFENDANT: No. 

THE COURT: Okay. All right. Then that's more 

credible, I believe. 

DEFENDANT: I was—

THE COURT: And you are—what?—six-foot tall? 

DEFENDANT: Yeah (inaudible). 

THE COURT: And you weigh about—what?—145? 

DEFENDANT: Yeah, 150. 
7 A-1016-22

THE COURT: Okay. All right. Based upon all the 

information provided to this [c]ourt, S-1 as well as the 

testimony of the defendant, I will accept your plea of 

guilty. 

On the marijuana possession conviction, defendant was sentenced to a 

$300 fine and all applicable court costs and monetary penalties. On the DWI 

conviction,2 defendant was sentenced to a $506 fine, $33 in court costs, $125 

DWI surcharge, two days in the Intoxicated Driver Resource Center, $75 Safe 

Neighborhoods penalty, $50 Violent Crimes Compensation Board penalty, a 

two-year suspension of driving privileges, and a requirement to use an ignition 

interlock device for three years. 

On June 2, 2021—roughly four-and-a-half years after pleading guilty—

defendant filed a motion for post-conviction relief (PCR) that was converted 

into a motion to vacate his DWI guilty plea. Defendant argued his plea was 

accepted with an insufficient factual basis. 

On April 6, 2022, the municipal court judge who took the plea denied

defendant's motion, explaining, "the transcript is clear that the elements of the 

[DWI] charge were testified to by the defendant; that he was a person who 

2

 This was defendant's third DWI conviction. However, he was sentenced as a 

second-time DWI offender because more than ten years elapsed between the 

second and third offenses. 
8 A-1016-22

operated a motor vehicle []; and that he had—and he was influenced or had the 

BAC over the per se limits." The judge continued, 

he did admit to drinking beer. He admitted to a number 

of beers and not having had anything to eat that day, 

and the fact that it was already 10:30 at night, so you 

have a long period of a day where there's just no food 

being consumed by the defendant. . . . 

Additionally, defendant's prior counsel, "who is state-renowned with respect to 

his D[W]I defense work," did not object to the admission of defendant's BAC 

reading. 

Defendant appealed the municipal court decision to the Law Division, 

which conducted a de novo review. On October 18, 2022, the Law Division 

judge denied defendant's motion to vacate the DWI guilty plea, ruling defendant 

acknowledged the BAC reading by explaining to the municipal court judge that 

he had not eaten all day. The Law Division judge concluded those "admissions 

support and acknowledge that [defendant] was aware of his per se violation of 

what the alcohol level was." 

This appeal follows. Defendant raises the following contention for our 

consideration: 

DEFENDANT'S MOTION TO VACATE HIS 

GUILTY PLEA SHOULD HAVE BEEN GRANTED 
9 A-1016-22

ON DE NOVO REVIEW PREDICATED UPON THE 

MUNICIPAL COURT'S FAILURE TO OBTAIN A 

SUFFICIENT FACTUAL BASIS FOR THE ENTRY 

OF DEFENDANT'S GUILTY PLEA ON DECEMBER 

6, 2017 IN ACCORDANCE WITH R[ULE] 7:6-

2(A)(l). 

We begin our analysis by acknowledging the governing legal principles. 

When a defendant moves to withdraw a guilty plea after sentencing, a court may 

grant the motion "to correct a manifest injustice." R. 3:21-1; R. 7:6-2(b). In 

State v. Taccetta, our Supreme Court stressed the judiciary is obligated "to 

minimize the ultimate miscarriage of justice—the conviction of an innocent 

person." 200 N.J. 183, 196 (2009). Accordingly, the court rules and case law 

make clear "at a plea hearing, a judge must be satisfied that the defendant has 

given a factual account that makes him guilty of the crime." State v. Tate, 220 

N.J. 393, 405 (2015) (citing R. 3:9-2). Rule 3:9-2 provides 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 and 

that the plea is made voluntarily, not as a result of any 

threats or of any promises or inducements not disclosed 

on the record, and with an understanding of the nature 

of the charge and the consequences of the plea. 
10 A-1016-22

Furthermore, "[a] factual basis for a plea must include either an admission 

or the acknowledgment of facts that meet "'the essential elements of the crime.'"" 

Tate, 220 N.J. at 406 (quoting State in the Int. of T.M., 166 N.J. 319, 333 (2001) 

(quoting State v. Sainz, 107 N.J. 283, 293 (1987))). This requirement "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.'" Ibid. (quoting State v. Barboza, 115 

N.J. 415, 421 (1989)). "However, the defendant's admission or 

acknowledgement may be understood in light of all surrounding circumstances." 

Sainz, 107 N.J. at 293; see also State v. Mitchell, 126 N.J. 565, 581 (1992) ("In 

determining whether an adequate factual basis exists, the court may consider the 

defendant's statements as well as information gleaned from the surrounding 

circumstances."). 

"'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 Tate, 220 N.J. at 404). "An appellate court is in the 

same position as the trial court in assessing whether the factual admissions 

during a plea colloquy satisfy the essential elements of an offense." Tate, 220 

N.J. at 404. As a general matter, a motion to withdraw a guilty plea is governed 
11 A-1016-22

by a four-prong test announced in State v. Slater, 198 N.J. 145, 157-58 (2009). 

However, "when the issue is solely whether an adequate factual basis supports 

a guilty plea, a Slater analysis is unnecessary." Tate, 220 N.J. at 404. 

N.J.S.A. 39:4-50(a) defines a DWI offender as "[a] person who operates 

a motor vehicle while under the influence of intoxicating liquor . . . or operates 

a motor vehicle with a blood alcohol concentration of 0.08% or more by weight 

of alcohol in the defendant's blood. . . ." The DWI offense can be proved by two 

methods: proof of the defendant's physical condition and performance during 

balance and other sobriety tests (the observational method) or quantitative proof 

of the defendant's BAC established by blood or breath testing (the per se 

method). See State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003). 

We next apply the legal principles to the present facts, applying a de novo 

standard of review. Defendant argues the municipal court relied on his 

admission that "the consumption of the alcohol 'impaired [his] ability to safely 

operate [his] vehicle,'" but because "impairment" is not a DWI element, that 

admission was insufficient to support a factual basis for his DWI guilty plea. 

We disagree. For one thing, defendant's admission of impairment was not the 

sole circumstance used to establish a factual basis for the guilty plea. That 

admission must be read in conjunction with defendant's acknowledgements 
12 A-1016-22

regarding the BAC evidence admitted into evidence without objection. It is the 

combination of defendant's admission of impairment and his acknowledgement 

of the BAC reading that leads us to conclude the municipal court elicited an 

adequate factual basis for defendant's guilty plea. 

Specifically, during the plea colloquy, defendant confirmed he drank four 

bottles of beer before driving his car. Immediately after the BAC reading was 

submitted to the municipal court as S-1, the judge asked defendant: "[y]ou're 

going to tell the [c]ourt that you only had four beers and ended up with a .13 

percent? That's a high level of alcohol." Defendant did not dispute the high 

BAC reading introduced into evidence, but rather responded, "I didn't eat at all 

that day." 

We do not hesitate to conclude that by explaining why his BAC reading 

was so high, defendant not only acknowledged his awareness of the State's BAC 

evidence but also acknowledged the truth and accuracy of that evidence for 

purposes of establishing a factual basis for his guilty plea. See Sainz, 107 N.J. 

at 293 (stressing a defendant's "admission or acknowledgement may be 

understood in light of all surrounding circumstances"); Mitchell, 126 N.J. at 

581-82 (a court may consider a defendant's statements in determining whether 

an adequate factual basis exists). We thus conclude defendant's answers to the 
13 A-1016-22

municipal court judge's questions during the plea colloquy, viewed collectively 

and in context, constitute an adequate acknowledgment of the facts needed to 

prove the essential elements of the DWI offense, thereby satisfying the 

requirements set forth in Tate, 220 N.J. at 406, and Rule 3:9-2. Certainly, this 

is not a situation where defendant understood the nature of the charge without 

"realizing that his conduct does not actually fall within the charge.'" Tate, 220 

N.J. at 406. 

 In sum, we conclude defendant pled guilty to DWI because he was indeed 

guilty of that offense. There is no manifest injustice here requiring reversal and 

thus no basis to vacate defendant's knowing and voluntary guilty plea. R. 3:21-

1; R. 7:6-2(b). 

Affirmed.