Opinion
DOCKET NO. A-0172-12T2
05-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEE M. TRAVERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-12-02238.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Lee M. Travers, almost sixty-five years old at the time of sentencing, appeals his March 6, 2012 convictions after he pleaded guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). He also appeals from his sentence of eight years subject to an eighty-five percent parole disqualification pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Given the defects in the factual basis presented by defendant, we reverse.
The judges who heard the pretrial motions found that the police were called to defendant's friend's home on February 12, 2009, approximately one hour after a report that defendant, apparently under the influence of alcohol and medications, pointed a gun at his wife in front of his two children, threatened to kill her and pulled the trigger several times. The police found a loaded and cocked gun locked in defendant's car that appeared "older and not in good condition." Defendant was transported to the hospital in a semiconscious state as a result of a suspected "cardiac episode." The State's firearms expert examined the gun and found it to be "fireable," although it had a "cylinder timing" problem. In order to be fired, the expert had to "turn the cylinder by hand several degrees to align the firing pin and the hammer." When defendant moved to have his expert examine the gun, it was discovered that the gun had been mistakenly destroyed by the State.
Defendant reported having a stroke in 2007 and suffers from Parkinson's disease and depression.
Defendant's prior criminal record consists of an ordinance violation in 1985, as well as a disorderly persons conviction and two more ordinance violations relating to a single incident in 2004.
Defendant raises the following issues on appeal:
POINT I: DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED WHEN THE TRIAL COURT ACCEPTED HIS GUILTY PLEA TO THE AGGRAVATED-ASSAULT CHARGE, DESPITE A FACTUAL BASIS IN WHICH HE MAINTAINED THAT HE DID NOT INTEND TO CAUSE SERIOUS BODILY INJURY TO THE VICTIM BUT WAS SAYING SO MERELY "FOR THE PURPOSES OF THE PLEA." (NOT RAISED BELOW)
POINT II: BECAUSE THE 64-YEAR OLD DEFENDANT HAD NO PRIOR INDICTABLE CONVICTIONS AND UNDERSTOOD THAT THE WEAPON UTILIZED IN THE AGGRAVATED ASSAULT WAS INCAPABLE OF FIRING, HIS EIGHT-YEAR NO-EARLY-RELEASE-ACT SENTENCE IS EXCESSIVE.
To explain our concerns with the factual basis, it is necessary that we set forth at some length defendant's sworn answers to his attorney's questions at the plea hearing regarding the aggravated assault charge:
Q: Did you attempt to cause serious bodily injury to [your wife]?
A: No
Q: Okay. You understand that if you did not attempt to cause serious bodily injury to her, then that's not an aggravated assault?
A: That's not aggravated assault?
Q: No, it's not. In fact if you didn't, it might not be a crime at all. Now, did you attempt to cause serious bodily injury to her?
A: Well, according to the plea agreement.
Q: According to you?
A: Okay, what are you asking me?
Q: Did you attempt, not did you actually accomplish, did you attempt to cause her serious bodily injury?
A: I think I have to say yes, right?
Q: You don't have to do anything, Mr. Travers. I want you to say it because it's true or say it's not. Did you attempt to cause Linda Travers serious bodily injury at your house that night?
A: Yes.
Q: Do you understand that's an aggravated assault?
A: Yes.
The prosecutor also asked questions:
Q: Mr. Travers, in your home on February 12th, 2009 that evening you had an argument with your wife, didn't you?
A: Not really an argument.
Q: You had a dispute though, right?
A: We had some words.
Q: Okay, and the gun that you just said you had in Jackson you had with you at the house that night, correct?
A: I was transporting it to Jackson.
Q: Okay, but you originally had it in your house with you in Toms River, didn't you?
A: Yes.
Q: Okay, and you actually pulled it out in front of your wife during your argument, didn't you?
A: When she said don't kill me, I pulled it out and I showed it that it didn't work and it wasn't real.
Q: But for purposes of our plea today you agree with me that you did pull it out?
A: Yes.
Q: Okay and you did actually pull the trigger a couple of times, correct?
A: Yes.
Q: Okay, and in the process of that you were attempting to cause serious bodily injury for purposes of our plea today, is that correct, sir?
A: In terms of the plea, yes.
In New Jersey in order to plead guilty, a defendant must set forth sufficient facts "'constituting the essential elements of the crime.'" State ex rel. T.M., 166 N.J. 319, 333 (2001) (quoting State v. Sainz, 107 N.J. 283, 293 (1987)). The mere admission of guilt without a factual basis is not permitted. R. 3:9-1; State v. Campfield, 213 N.J. 218, 230-31 (2013).
The statute defendant attempted to plead guilty to reads:
Aggravated assault. A person is guilty of aggravated assault if he:To prove aggravated assault by causing serious bodily injury, the State need not prove the mental state of "purposely." To be convicted of an attempted aggravated assault, however, the State must prove that the defendant purposely attempted to cause serious bodily injury. See N.J.S.A. 2C:5-1(a)(1) (stating "A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (1) Purposely engages in conduct which would constitute the crime . . . ), see also State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986) (explaining that "an attempt is purposeful not only because it is so defined by statute, but because one cannot logically attempt to cause a particular result unless causing that result is one's 'conscious object,' [N.J.S.A. 2C:2-2(b)(1)], the distinguishing feature of a purposeful mental state"). "Purposely" is defined by statute:
(1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]
[N.J.S.A. 2C:12-1(b)(1).]
A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a
result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. . . .
[N.J.S.A. 2C:2-2(b)(1).]
We do not express an opinion as to whether defendant truly believed that the gun was inoperable when he took it out and pulled the trigger several times in front of his wife. The factual basis provided to the court, however, was not sufficient to demonstrate the specific intent required for a conviction of attempted aggravated assault by attempting to cause serious bodily injury.
Pursuant to Rule 3:9-2, the judge has an obligation to ensure that a sufficient factual basis is presented by a defendant who is pleading guilty to a serious crime. Recently, when finding a factual basis for reckless manslaughter sufficient, our Supreme Court stated:
The trial court must be satisfied from the lips of the defendant that he committed the acts which constitute the crime. The trial court must overcome a defendant's natural reluctance to elaborate on the details, and reject a guilty plea absent the defendant's admission of the distasteful reality that makes the charged conduct criminal.
. . . .
We caution trial courts, prosecutors and defense counsel that it is essential to elicit from the defendant a comprehensive factual basis, addressing each element of a
given offense in substantial detail, when a defendant is pleading guilty to that offense.
[Campfield, supra, 213 N.J. at 231, 236 (internal quotations and citations omitted).]
Defendant's admission to purposefully attempting to cause serious bodily injury was extricated from him by counsel in such a way that he told the court he was admitting to that mental state, as the prosecutor said, "for the purposes of [the] plea," while maintaining his position that he knew the gun was inoperable.
Accordingly, defendant's conviction is reversed and vacated, and the matter is remanded for further proceedings. Campfield, supra, 213 N.J. at 232. In light of our decision, we need not address defendant's sentencing issue.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION