SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4861-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL VASQUEZ, a/k/a 

VASQUEZ-HERNANDEZ,

Defendant-Appellant.

Argued November 2, 2020 – Decided

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Accusation No. 01-07-0913. 

Leslie B. Posnock argued the cause for appellant 

(Schwartz & Posnock, attorneys; Leslie B. Posnock, of 

counsel and on the briefs).

Michele C. Buckley, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Lyndsay V. Ruotolo, Acting Union 

County Prosecutor, attorney; Albert Cernadas, Jr.,

Special Deputy Attorney General/Acting Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.

December 18, 2020
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PER CURIAM

Defendant Miguel Vasquez appeals from the denial of his petition for 

post-conviction relief (PCR) and motion to vacate his guilty plea. Defendant 

contends the trial court erred in denying his motion to vacate the plea because it 

lacked an adequate factual basis and the Slater1factors weigh in favor of

vacating the plea. We affirm. 

In June 2001, defendant and a group of people set fire to a car that 

belonged to his building's superintendent. Eyewitnesses identified defendant as 

the person who started the fire. Defendant was charged with second-degree 

aggravated arson in violation of N.J.S.A. 2C:17-1(a)(2). 

In July 2001, defendant met with counsel to review the charge, discovery, 

and a plea offer. Subsequently, defendant pled guilty to third-degree arson in 

violation of N.J.S.A. 2C:17-1(b)(2).2 Under the plea agreement, the State sought 

a sentence of three years' probation, 180 days in county jail, and payment of 

restitution. 

1

 State v. Slater, 198 N.J. 145, 157-58 (2009). 

2 The judgment of conviction reflects defendant correctly pled guilty to thirddegree arson, however, the judgment of conviction mistakenly lists the statute 

for second-degree arson. 
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On the plea form, defendant indicated he committed the offense to which 

he was pleading guilty and he responded affirmatively to question seventeen, 

which asked: "Do you understand that if you are not a United States citizen or 

national, you may be deported by virtue of your plea of guilty?" 3 

Defendant appeared alongside three other individuals entering guilty pleas 

for different offenses. When defendant responded he was not a U.S. citizen, the 

judge asked: "you understand by pleading guilty this could affect your 

citizenship and/or residency status?" Defendant responded: "Yes, ma'am." The 

judge inquired whether defendant had sufficient time to review the charge 

against him and the plea form with his attorney; defendant responded 

affirmatively. Defendant also indicated he was not forced to plead guilty and 

he was satisfied with his attorney's representation. 

After the plea judge explained the rights defendant was forfeiting by 

entering a guilty plea, she elicited a factual basis:

THE COURT: [O]n June 4th, in the City of Plainfield, 

did you unlawfully and purposely start a fire recklessly 

burning a car and placing others in danger because of 

that?

[DEFENDANT]: Yes.

3

 Defendant was born in the Dominican Republic but was deemed a permanent 

legal resident of the United States in 1993. 
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After defense counsel stated he was satisfied there was a factual basis for 

defendant's plea, the judge accepted the plea. 

Defendant was sentenced in October 2001. The judge found the 

mitigating factors outweighed the aggravating factors and imposed a sentence 

below what the State sought under the plea agreement. Defendant was sentenced

to sixty days in county jail, three years' probation, and restitution and other fines. 

In November 2017, defendant filed a PCR petition. In January 2019, 

defendant amended his PCR petition and moved to vacate his guilty plea. 

Defendant argued: (1) he was entitled to withdraw his guilty plea because it was 

not supported by an adequate factual basis; (2) he was entitled to withdraw his 

guilty plea because the Slater factors weighed in his favor; (3) he was deprived 

of the effective assistance of counsel because his plea attorney did not properly 

inform him of the immigration consequences of his guilty plea and his 

sentencing attorney failed to review the presentence report with him, know his 

name, and tell the court about defendant's claim of innocence; and (4) he was 

entitled to withdraw his guilty plea or be resentenced because he received an 

illegal sentence. 

In June 2019, after entertaining oral argument, the PCR judge issued a 

comprehensive, well-reasoned decision and order denying defendant's petition 
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for PCR and other relief. The judge found defendant's plea was supported by a 

proper factual basis as his responses to questions at the plea hearing established 

the necessary elements for an arson conviction. The judge also found defendant 

was not entitled to withdraw his plea under Slater because each of the four 

required factors weighed against defendant—he did not assert a colorable claim 

of innocence, he did not have clear, forceful reasons to withdraw his plea, he 

entered his guilty plea pursuant to a plea agreement, and the State would incur 

unfair prejudice from a withdrawal of the plea. 

In addressing defendant's ineffective assistance of counsel claim, the 

judge found defendant's claim was time-barred because he did not file his PCR 

petition until sixteen years after his conviction and he did not establish excusable 

neglect or fundamental injustice. The judge also found defendant's claim lacked

merit because his plea counsel did not provide affirmative mistaken advice and 

he could not show that but for counsel's alleged errors, he would have rejected 

the plea and gone to trial. Moreover, the record showed defendant's sentencing 

counsel informed the court he had reviewed the presentencing report with 

defendant and advised the court that there "was some denial as to [defendant's] 

charge[.]" 
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Finally, the PCR judge found that while defendant's judgment of 

conviction incorrectly reflected the wrong statute, it was clear he was convicted

of third-degree arson, and the imposed sentence was within the statutory range 

for third-degree arson. 

On appeal, defendant presents a single point for our review: 

THE COURT BELOW ERRED IN DENYING 

DEFENDANT'S MOTION TO VACATE HIS 

GUILTY PLEA AS NO ADEQUATE FACTUAL

BASIS FOR SAME WAS ESTABLISHED

A. Defendant Must Be Permitted to Withdraw 

His Plea Even Pursuant to the Analysis Set Forth

in State v. Slater

i. Colorable Claim of Innocence

ii. Nature and Strength of Defendant's

Reasons for Withdrawal

a. Defendant's Plea Was Not 

Knowing and Voluntary in 

Accordance with R. 3:9-2

iii. Existence of a Plea Bargain

iv. Prejudice to State/Advantage to the

Accused

Under Rule 3:9-2, a judge "shall not accept" a guilty plea without first 

eliciting a "factual basis for the plea." The trial court must be "satisfied from 

the lips of the defendant that he committed the acts which constitute the crime." 
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State v. Smullen, 118 N.J. 408, 415 (1990) (quoting State v. Barboza, 115 N.J. 

415, 422 (1989)). Thus, a proper factual basis for a guilty plea "must obviously 

include defendant's admission of guilt of the crime or the acknowledgment of 

facts constituting the essential elements of the crime." State v. Sainz, 107 N.J. 

283, 293 (1987). A factual basis may be established in "one of two forms; 

defendant may either explicitly admit guilt with respect to the elements or may 

'acknowledge [ ] . . . facts constituting the essential elements of the crime.'" 

State v. Campfield, 213 N.J. 218, 231 (2013) (quoting Sainz, 107 N.J. at 293). 

We are satisfied from our review of the record that defendant's guilty plea 

was supported by an adequate factual basis. Defendant answered affirmatively 

to the plea court's question, establishing the first and second elements of the 

offense. 

In turning to the Slater issue, defendant has not shown an entitlement to 

relief under the four factors that guide whether to allow a defendant to vacate 

and withdraw a guilty plea. 198 N.J. at 157-58. These factors are: (1) whether 

defendant has asserted a colorable claim of innocence; (2) the nature and 

strength of defendant's reasons for withdrawal; (3) the existence of a plea

bargain; and (4) whether withdrawal would result in unfair prejudice to the State 

or unfair advantage to the accused. We review a trial court's denial of a motion 
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to withdraw a guilty plea under an abuse of discretion standard. State v. Tate, 

220 N.J. 393, 404 (2015). 

First, defendant failed to assert a colorable claim of innocence. Although 

defendant asserts during the pre-sentence interview that he was sleeping during 

the incident, he also acknowledged he pled guilty and "took the six months." He 

did not deny setting fire to the superintendent's car. 

Turning to the second factor, defendant's proffered reasons for 

withdrawing his plea are meritless. The record reflects the plea was knowing 

and voluntary. Defendant indicated he understood the charge against him, as 

well as the plea agreement and its consequences in his responses to questions 

both on the plea form and from the judge at his plea hearing. Defendant stated 

he was not forced to plead guilty and he was satisfied with his attorney's 

services. 

The PCR judge also correctly found the third Slater factor weighed against 

defendant because he received a very favorable sentence. Defendant faced 

exposure up to five years' incarceration for a third-degree arson conviction but 

only received a sentence of sixty days' incarceration, three years' probation, and 

monetary penalties. The error on the judgment of conviction is immaterial. The 
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judgment notes correctly that defendant was convicted of and sentenced on the 

third-degree arson charge. 

Finally, if defendant was permitted to withdraw his plea, it would result 

in unfair prejudice to the State given the sixteen-year gap between defendant's 

conviction and the filing of his PCR petition. This passage of time would 

certainly cause great difficulty in locating witnesses and presenting evidence at 

trial. 

We are satisfied from our review of the record that the PCR judge did not 

abuse his discretion in denying defendant's motion to withdraw his plea. 

Defendant failed to meet his burden under Slater to withdraw his plea. 

We affirm the denial of defendant's motion to withdraw his guilty plea and 

the denial of his petition. We remand to the trial court only to correct the 

judgment of conviction to accurately reflect the proper statute under which 

defendant was convicted of third-degree arson. 

Affirmed and remanded with instructions to correct the judgment of 

conviction. We do not retain jurisdiction.