DOCKET NO.  A-3696-10T4

Approved for Publication

    STATE OF NEWJERSEY,   Plaintiff-Respondent,   v.   WILLIAM T. BARFUSS,   Defendant-Appellant.   ___________________________________ Before Judges Payne and Hayden.   On appeal from the Superior Court of New Jersey, Law Division,SomersetCounty, Municipal Appeal No. 55-09-A.   Martin Newmark argued the cause for appellant (Broderick, Newmark & Grather, attorneys; Mr. Newmark, of counsel and on the brief).   Justin Telline argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Nicole McGrath, Assistant Prosecutor, on the brief).   PER CURIAM   Defendant, William T. Barfuss, appeals from the October 15, 2010 Law Division order denying his post-sentence motion to vacate his guilty plea to Driving Under the Influence (DUI), N.J.S.A. 39:4-50.  Defendant contends that he should be allowed to vacate the guilty plea because the factual basis in support of his plea was inadequate to prove that he “operated” the vehicle as required by the DUI statute.  We agree and reverse. We discern the following facts from the record.  Defendant received three traffic tickets on December 15, 2005, for DUI, N.J.S.A. 39:4-50, Careless Driving, N.J.S.A. 39:4-97 and Open Container of Alcohol in a Vehicle, N.J.S.A. 39:4-51a.  On June 19, 2006, after the municipal court judge denied defendant’s motion for a jury trial, defendant entered into a conditional guilty plea on this DUI charge. During testimony concerning the factual basis for the plea, the following discussion occurred concerning defendant’s operation of his car on the day of the incident. DEFENSE COUNSEL:  And where did you drive the car to?   DEFENDANT:  I drove it to the municipal building.   DEFENSE COUNSEL:  Prior to driving to the municipal building had you been drinking alcohol?   DEFENDANT.  I don’t think I — I don’t — I think I drank when I got to the municipal building.   . . . .   DEFENSE COUNSEL: . . .  Did you have a chance to look at the police reports in this matter?   DEFENDANT:  I — I read them, yes. I — I was met by the police officer at the front of the building.   DEFENSE COUNSEL:  And, in fact, did you – – the police officer thought you were under the influence.  Isn’t that right?   DEFENDANT.  Yes.   DEFENSE COUNSEL:  Would you agree you should not have been driving as a result of what you had to drink?   DEFENDANT:  I wasn’t driving when I was drinking.   DEFENSE COUNSEL:  I understand but you were in your car when you were drinking.  Is that right?   DEFENDANT:  I was in my car — car.   . . . .   DEFENSE COUNSEL:  At any rate you did have custody and control over your vehicle at that time, correct?   DEFENDANT:  Yes.  I had the keys in my pocket.   DEFENSE COUNSEL:  OK now there was a point where you were intoxicated.  Is that correct?   DEFENDANT:  Yes.  Yes.   DEFENSE COUNSEL:  Yes.  And you were in custody and in control of your vehicle at that time correct?   DEFENDANT:  I had the keys in my pocket.   DEFENSE COUNSEL: Right.  You had the ability to drive if the officer – –   DEFENDANT:  Right.   DEFENSE COUNSEL:  Hadn’t intervened.   DEFENDANT:  Yes.   DEFENSE COUNSEL:  And in fact you would have driven if that had [not] occurred.  Is that right?   DEFENDANT:  Yes.   Later in the discussion, defendant stated that “I’m not sure I’m guilty” of operating the vehicle on December 15.  His counsel reiterated the prior discussion. DEFENSE COUNSEL:  And, again, I know you weren’t driving at the actual time the officer came upon you, but you understand that operating inNew Jerseyis more than just driving?   DEFENDANT:  OK.  If that’s the case, I understand.   DEFENSE COUNSEL:  OK.  And you — and, again remember that other question I asked you.  If the officer had not intervened, would you have driven home?   DEFENDANT:  Yes, I – –  yes, I probably would have.  Yes.   DEFENSE COUNSEL: OK.   DEFENDANT:  Most likely I would have.   DEFENSE COUNSEL:  Now you understand that that constitutes the element of operation of DUI offenses or offense inNew Jersey.   DEFENDANT:  OK.  If that’s what you say.  Yes.   The municipal court judge sentenced defendant, a third-time DUI offender, to serve 180 days in jail, with credit for a ninety-day in-patient rehabilitation program, a ten-year suspension of his driver’s license, and additional requisite fines and penalties.  Defendant’s appeal to the Law Division, which challenged the lack of a jury trial and his sentence, was denied.  We affirmed the Law Division judge’s ruling on July 18, 2007, State v. Barfuss, No. A-1296-06 (App. Div. July 18, 2007), and remanded the matter to municipal court for execution of the sentence, which had been stayed pending appeal. On July 2, 2008, defendant, represented by new counsel, applied to the municipal court to vacate his guilty plea on the grounds that the testimony had failed to establish a factual basis for the plea, specifically that he had operated a vehicle as required by N.J.S.A. 39:4-50.  On April 26, 2010, the municipal judge denied the motion.  Defendant appealed to the Law Division.  The Law Division judge found that the necessary elements to prove intent to operate were admitted by defendant in his plea and that defendant had not made the requisite showing to vacate the plea.  This appeal followed. On appeal, defendant again argues that the factual basis he provided to support his guilty plea does not establish the elements of operation required to sustain a DUI violation; that the municipal judge violated Rule 7:6-2(a)(1) by accepting a plea without an adequate factual basis, and that the Law Division Judge made an incorrect Slater analysis.  The State contends that defendant provided a factual basis for the plea by acknowledging that he had the keys in his pocket and would have driven home if the police had not intervened and that defendant had not proven the necessary elements under Slater to vacate a guilty plea. We begin our consideration of defendant’s arguments by restating some applicable legal principles. A guilty plea involves the relinquishment of the right to be presumed innocent until found guilty beyond a reasonable doubt by an impartial jury or judge. State v. Barboza, 115 N.J. 415, 420-21 (1989). Accordingly, in this State, in order to legitimately plead guilty, the factual basis for the plea must support the charge and be given with an understanding of the nature of the charge and the consequence of the plea.  The trial judge has the responsibility to question the defendant personally and determine that the plea is made voluntarily, with an understanding of the charges and consequences, and additionally that there is a factual basis for the plea.  IbidSee R. 3:9-2; R. 7:6-2.  A factual basis consists of “defendant’s admission of guilt of the crime or acknowledgment of facts constituting the essential elements of the crime.”  State v. Pineiro, 385 N.J. Super. 129, 137 (App. Div. 2006) (citing State v. Sainz, 107 N.J. 283, 293 (1987)).  Such procedural safeguards ensure that courts can be “satisfied from the lips of the defendant that he committed the acts which constitute the crime.”  Slater, supra, 198 N.J. at 156. Despite the finality of the plea process, in appropriate cases defendants are entitled to file a motion to withdraw the plea.  R. 7:6-2.  To assure that justice is served, a trial court must consider and balance four factors when evaluating a motion to withdraw a guilty plea:  “(1) whether the 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.”  State v. Munroe, __ N.J. __, __ (2012) (slip op. at 14-15) (citing Slater, supra, 198 N.J. at 157-58). Motions filed at or before the time of sentencing will be determined by an “interest of justice” standard, but motions filed after sentencing will only be granted to “correct a manifest injustice.”  R. 7:6-2(b).  Hence, “efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons.”  Slater, supra,  198 N.J. at 160.  We will reverse a trial court’s decision on a motion to vacate a plea only if it is “clearly erroneous.”  State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009). With these principles in mind, we turn to what constitutes a factual basis for a guilty plea under the DUI statute. N.J.S.A. 39:4-50 defines someone driving while under the influence as:
a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood.
[N.J.S.A. 39:4-50(a).] Our Supreme Court has espoused a broad reading of the terms of N.J.S.A. 39:4-50 in order to effectuate legislative intent.  State v. Tischio, 107 N.J. 504, 510-11 (1987).  “We are . . . enjoined to give our drunk-driving statutes the pragmatic and flexible interpretations necessary to effectuate the Legislature’s regulatory aims, while honoring the due process limitations necessarily attendant upon the law’s penal sanctions.” Id. at 512.  Thus, it is well-settled that courts are to broadly interpret the term “operate” in the context of N.J.S.A. 39:4-50 to further legislative aims.  Id. at 513; State v. Mulcahy, 107 N.J. 467, 480 (1987); State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993).  The Legislature’s goal in enacting this statute was to “curb the senseless havoc and destruction caused by intoxicated drivers.”  Id. at 417 (quoting Tischio, supra, 107 N.J. at 512). In accordance with this standard, actual operation of a motor vehicle is not required for a conviction under N.J.S.A. 39:4-50.  State v. Wright, 107 N.J. 488, 497 (1987); State v. Johnson, 42 N.J. 146, 166-67 (1964).  A demonstrated intent to operate a vehicle can constitute “operation” pursuant to N.J.S.A. 39:4-50; an officer need not witness the vehicle in motion. Mulcahy, supra, 107 N.J. at 476; Morris, supra, 262 N.J. Super. at 417;  State v. Stiene, 203 N.J. Super. 275, 279 (App. Div.), certif. denied, 102 N.J. 375 (1985). In an early consideration of the operation element of a DUI charge, the Supreme Court ruled that a person may be operating a motor vehicle when he is in the car with the motor running even when the vehicle has not been moved. State v. Sweeney, 40 N.J. 359 (1963).  However, in State v. Daly, 64 N.J. 122, 124 (1973), the Court considered the operation element where the defendant was sleeping in his parked car behind a tavern in a reclined driver’s seat with the motor running to provide heat.  Finding the requisite intent to operate had not been proven, the Court held that “evidence of intent to drive or move the vehicle at the time must appear.”  Id. at 125 (emphasis added).  In Mulcahy, supra, 107 N.J. at 479, the Court held that “when one enters a car and puts one’s self in the driver’s seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation.” Here, in an attempt to provide a factual basis for the plea, defendant testified that he parked in the municipal parking lot and consumed alcohol.  At some point about five minutes after he arrived “in front of the [police] station” a police officer interacted with defendant and noticed he was intoxicated.  At all times defendant had his keys in his pockets, but he does not state and the record does not reveal that he was in the car when he encountered the officer.  Defendant did not state the reason he was at the police station or how long he planned to stay.  He admitted that he planned to drive home if the police officer had not intervened. Moreover, during the hearing defendant protested that he did not drink while driving and did not think he was guilty of DUI.  Only the reassurance of defense counsel that a general intention to drive home while being in control of the car, without any attempt to move the vehicle, was enough to violate the DUI law, made defendant agree that he had operated the vehicle. We disagree with this flawed interpretation of “operation” as a basis for demonstrating guilt for DUI purposes.  Here the record does not contain any evidence that defendant made any “physical movement to put the car in motion” at the time.  Ibid.  We are unable to find any New Jersey cases upholding a  conviction for DUI for having the keys in one’s pocket and a future intent to drive home without any corroborating physical attempt to move the vehicle.  Consequently, we are satisfied that the facts articulated by defendant did not provide an adequate factual basis for his guilty plea.  Generally, a plea may be withdrawn if made without an adequate factual basis to support the crime charged.  State v. Lightner, 99 N.J. 313, 316 (1985) (upholding decision that acceptance of a plea not factually supported constitutes a “manifest injustice”). See also State v. Mitchell, 126 N.J. 565, 577 (1992). As defendant, by his contention that he did not operate the car for DUI purposes, has asserted a colorable claim of innocence, he has made a substantial showing of the first Slater factor and also provided a strong reason for withdrawal, the second factor.  While there was a plea bargain, the parties can be put back to their positions before the plea and we are cautioned not to give this factor much weight.  Slater, supra, 198 N.J. at 161.  Here, defendant filed the motion to withdraw two years after the guilty plea.  The State has not pointed to any extraordinary prejudice to it or benefit to defendant that occurred between the sentencing and the filing of the motion to vacate.  After balancing the four Slater factors, we are satisfied that defendant has met his burden and is entitled to withdraw his guilty plea and have the charges reinstated to correct a manifest injustice. Reversed and remanded for proceedings in accordance with this decision.  We do not retain jurisdiction.