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

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

NOT FOR PUBLICATION WITHOUT THE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.

October 20, 2017
2 A-4435-15T2

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).
3 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.
4 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 
5 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:
6 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.
7 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.
8 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 postsentence motions to withdraw a plea; pre-sentence motions to 

withdraw a plea are governed by the "interest of justice"
9 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
10 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 
11 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.").
12 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 
13 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. 
14 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.
15 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.
________________________________

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)).
2 A-4435-15T2

When a defendant pleads guilty, he or she 

waives important constitutional rights, 

"including the right to avoid selfincrimination, 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 
3 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.
4 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).]
5 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. 
6 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 
7 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 
8 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 
9 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.