                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION


                               SUPERIOR COURT OF NEW JERSEY
                               APPELLATE DIVISION
                               DOCKET NO. A-4435-15T2


STATE OF NEW JERSEY,

          Plaintiff-Respondent,
                                        APPROVED FOR PUBLICATION
v.
                                           October 30, 2018
RAINLIN VASCO,                            APPELLATE DIVISION

          Defendant-Appellant.
______________________________________________

          Submitted March 14, 2017 – Decided October 20, 2017

          Before Judges Espinosa, Suter, and Guadagno
          (Judge Espinosa dissenting).

          On appeal from 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

     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,   R.P.

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

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).

      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).

                                      2                            A-4435-15T2
     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.

     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

                                     3                                 A-4435-15T2
                   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 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

                                         4                             A-4435-15T2
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:

           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.




                                      5                                A-4435-15T2
       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.

       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




1
    The 9-1-1 recording was not provided to us.

                                    6                             A-4435-15T2
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    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 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,


                                        7                                   A-4435-15T2
219   N.J.   323,   331   (2014)   (citing   R.    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. . . . [and]
             "will be reversed on appeal only if there was
             an abuse of discretion which renders the lower
             court's decision clearly erroneous."

             [Ibid. (internal citations omitted)(quoting
             Simon, supra, 161 N.J. at 444).]

      "[D]ifferent burdens . . . attach to pre-sentence and post-

sentence motions to withdraw a plea; 'pre-sentence motions to

withdraw a plea are governed by the "interest of justice" 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. at 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.



                                     8                               A-4435-15T2
       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 (citations

omitted).

       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 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

                                       9                              A-4435-15T2
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 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



                                   10                          A-4435-15T2
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

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."       Tate, supra, 220 N.J.

at 404 (emphasis added).   However, defendant's motion to withdraw

his plea was based not only on his claim that the factual basis



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.").

                                 11                             A-4435-15T2
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 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

                                   12                          A-4435-15T2
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, 317 (2017).       The "proper . . . inquiry is not one

of   intent,   'but   whether   the       circumstances   surrounding       the

possession were manifestly appropriate' for lawful use."                 Ibid.

(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.

     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



                                     13                               A-4435-15T2
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   for   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.

     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.




                                       14                                 A-4435-15T2
________________________________

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 9-1-1 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)).
              When a defendant pleads guilty, he or she
              waives   important    constitutional    rights,
              "including   the    right   to   avoid    self-
              incrimination,   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)
              (internal 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) (citation omitted).           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


                                       2                                  A-4435-15T2
he committed the acts which constitute the crime.'"                State ex rel.

T.M., 166 N.J. 319, 327 (2001) (emphasis added) (quoting Barboza,

115 N.J. 415, 422 (1989).

       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.

Gregory, supra, 220 N.J. at 421-22. The defendant entered a guilty

plea to a charge of possessing heroin with intent to distribute

within 1000 feet of a school property, N.J.S.A. 2C:35-7.                 Id. at

417.    "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."

Ibid.     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



                                        3                               A-4435-15T2
surrounding circumstances and in the context of [the] entire plea

colloquy.'"      Gregory, supra, 220 N.J. at 418.

     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.



                                        4                             A-4435-15T2
          [State v. Perez, 220 N.J. 423, 433-34 (2015)
          (emphasis    added)    (internal    citation
          omitted).]

     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. (footnote omitted).]




                                5                         A-4435-15T2
       The facts admitted by defendant here fell even further from

an     acknowledgment   of   circumstances      that   would   support       a

conviction.

       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




                                     6                              A-4435-15T2
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

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).



                                  7                            A-4435-15T2
      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

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).



                                     8                                A-4435-15T2
     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

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,

"[i]n short, if a factual basis has not been given to support a

guilty plea, the analysis ends and the plea must be vacated."

Ibid.

     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.

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