                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                               State of New Jersey v. John Tate (A-46-13) (072754)

Argued November 10, 2014 -- Decided February 2, 2015

ALBIN, J., writing for a unanimous Court.

         In this appeal, the Court determines whether, under Rule 3:9-2, defendant John Tate provided an adequate
factual basis supporting his plea of guilty to fourth-degree child abuse.

         In 2004, defendant was charged with first-degree aggravated sexual assault, second-degree endangering the
welfare of a child, and third-degree aggravated criminal sexual contact for acts he allegedly committed between
September and November 1999, while serving as a foster parent to a thirteen-year-old boy. In June 2009, the State
offered defendant a plea deal that expired the same day. In exchange for pleading guilty to the downgraded charge
of fourth-degree child abuse, N.J.S.A. 9:6-1(d) and 9:6-3, the State agreed to dismiss the remaining charges and
recommend a sentence of time served.

          During the plea hearing, when eliciting the factual basis in support of defendant’s guilty plea, defense
counsel asked, “[D]id you curse in [the child’s] presence to and in a way that would debauch his morals?”
Following defendant’s affirmative response, the prosecutor asked, “[Y]ou used off-color language in his presence?”
Defendant again responded affirmatively and confirmed that he wanted the court to accept his plea. The court did
so, finding that defendant provided an adequate factual basis for the charge and entered a knowing and voluntary
plea.

         In August 2010, defendant moved to withdraw his guilty plea on the ground that it was not supported by an
adequate factual basis. The court denied the motion, following the template set forth in State v. Slater, 198 N.J. 145
(2009), which addresses the circumstances under which a guilty plea may be withdrawn even when supported by an
adequate factual basis. The court explained that defendant had admitted that he cursed and used foul language in the
child’s presence. It sentenced defendant to time served and dismissed the remaining charges.

         On appeal, the Appellate Division affirmed. It acknowledged that, although N.J.S.A. 9:6-1(d) requires that
use of the “profane” language be “habitual,” defendant did not specify the frequency with which he used off-color
language. However, the panel determined that habitual use was implied by defendant’s unequivocal assertion that
he committed child abuse by using language that tended to debauch a child’s morals. The panel also implicitly
concluded that the use of curse words or off-color language satisfied the statutory requirement of using “profane,
indecent or obscene language.” The Court granted defendant’s petition for certification. 216 N.J. 367 (2013).

HELD: The factual basis provided by defendant during the plea colloquy was inadequate to support the guilty plea
because it did not satisfy the elements of N.J.S.A. 9:6-1(d).

1. The 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. This standard is different from the Slater analysis used when a court denies a motion to withdraw a
plea that is supported by an adequate factual basis but where the defendant later asserts his innocence. Where, as
here, the issue is solely whether an adequate factual basis supports a guilty plea, a Slater analysis is unnecessary.
Here, the Court also must construe the meaning of the statutes governing child abuse, as well as Rule 3:9-2. These
interpretations are de novo. (pp. 11-13)

2. In accordance with Rule 3:9-2, prior to accepting a guilty plea, a judge must be satisfied that the defendant has
given a factual account that makes him guilty of the crime. In other words, a court, in its discretion, shall not accept
a guilty plea unless inquiry of the defendant and others establishes a factual basis for the plea. The factual basis
must include either an admission or the acknowledgment of facts that meet every essential element of the crime,

                                                           1
regardless of how heinous the offense may be. In those limited circumstances where a particular element of an
offense may address a fact that is beyond a defendant’s knowledge, such as the distance an unlawful narcotics
transaction occurred from a school, the prosecutor should make an appropriate representation on the record at the
time of the hearing, so that the defendant can acknowledge or dispute it. (pp. 13-16)

3. The Court rejects the State’s contention that a court may look to evidence beyond the words spoken at the plea
colloquy to establish a factual basis. The case on which the State relies for this proposition, State v. Mitchell, 126
N.J. 565 (1992), is distinguishable from the case here. Notably, Mitchell did not involve a motion to vacate a plea
before or shortly after sentencing. Rather, the defendant there challenged the factual basis of his plea over six years
after his sentencing in an untimely post-conviction relief proceeding. Although the Mitchell Court stated that an
assessment of a plea’s factual adequacy may include consideration of surrounding circumstances, this merely served
to inform the Court’s decision that no fundamental injustice warranted relaxation of the post-conviction relief time
limitations. In contrast, where a timely motion or appeal is made to vacate a plea, surrounding circumstances cannot
substitute for the failure to elicit an adequate factual basis directly from a defendant. (pp. 16-18)

4. In this case, a factual basis to the guilty plea of child abuse must satisfy the following essential elements, as
found in N.J.S.A. 9:6-3 and 9:6-1(d): (1) defendant had custody or control of the thirteen-year old child, a minor;
(2) he used profane, indecent, or obscene language in the presence of the minor; and (3) he did so on a habitual
basis. That defendant had custody or control of the child is undisputed. Turning to the remaining elements, the
language in N.J.S.A. 9:6-1(d) is unchanged from the original 1915 legislation and does not define “profane, indecent
or obscene” language or the word “habitual.” Thus, the Court ascribes the words their ordinary meaning, looking to
the general dictionary definitions of each. The words profane, indecent, and obscene are not susceptible to neat and
fixed definitions, and, while the definitions have remained remarkably similar since the enactment of the 1915
legislation, the social taboos regarding the usage of certain words are not the same today. Moreover, curse words
and off-color language may fall both in and out of the range of the definitions of profane, indecent, and obscene
language. (pp. 18-21)

5. As to whether defendant admitted to or acknowledged uttering profane, indecent, or obscene language in the
presence of a minor on a habitual basis, the Court reiterates that these words are susceptible to various
interpretations and that reasonable people may have different understandings of their meanings. Here, defendant
was never asked precisely what words he used and only generally asserted that he cursed and used off-color
language in the child’s presence. Curse words and off-color language are often synonymous with profane, indecent,
or obscene language, but not always. Without eliciting the actual words and language uttered by defendant, the
court could not make an independent determination as to whether the purportedly offending language constituted
child abuse. Moreover, even if the Court accepts that use of curse words or off-color language equates with profane,
indecent, or obscene language, the plea colloquy failed to elicit whether defendant engaged in the habitual use of
such language, a fact which cannot be inferred from the child’s three-month cohabitation with defendant. (pp. 22-
23)

6. Since the factual basis of defendant’s plea does not comport with the requirements of New Jersey’s court rules or
jurisprudence, the Court need not reach the constitutional issue raised on appeal: Whether N.J.S.A. 9:6-1(d) is so
broadly and vaguely worded that it treads on free-speech, due-process, or parental rights. Because the factual basis
does not satisfy the elements of N.J.S.A. 9:6-1(d), the Court vacates defendant’s plea of guilty to child abuse, and
returns defendant to the position where he stood before he entered his plea. (pp. 23-25)

         The judgment of the Appellate Division is REVERSED, defendant’s guilty plea is VACATED and his
indictment is REINSTATED, and the matter is REMANDED to the trial court for proceedings consistent with this
opinion.

     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion.




                                                          2
                                      SUPREME COURT OF NEW JERSEY
                                        A-46 September Term 2013
                                                 072754

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

          v.

JOHN TATE,

    Defendant-Appellant.


          Argued November 10, 2014 – Decided February 2, 2015

          On certification to the Superior Court,
          Appellate Division.

          Michael J. Pastacaldi, Designated Counsel,
          argued the cause for appellant (Joseph E.
          Krakora, Public Defender, attorney).

          John K. McNamara, Jr., Assistant
          Prosecutor/Special Deputy Attorney General,
          argued the cause for respondent (Fredric M.
          Knapp, Morris County Prosecutor, attorney;
          John K. McNamara and Erin Smith Wisloff,
          Assistant Prosecutor/Special Deputy Attorney
          General, on the briefs).

          CJ Griffin argued the cause for amicus
          curiae American Civil Liberties Union of New
          Jersey Foundation (Pashman Stein, attorneys;
          C.J. Griffin, Edward L. Barocas, Jeanne M.
          LoCicero, and Alexander R. Shalom, of
          counsel and on the brief).


    JUSTICE ALBIN delivered the opinion of the Court.

    Rule 3:9-2 and our jurisprudence do not permit a court to

accept a guilty plea unless the defendant provides a factual


                                1
basis establishing that he is guilty of the offense.      Our

longstanding commitment to this approach, above all, is intended

to preserve the integrity of the criminal justice process and to

safeguard against convicting a potentially innocent person.

Accordingly, a court must reject a guilty plea if a defendant

protests his innocence or does not admit to or acknowledge facts

that evidence his guilt.

     Defendant John Tate pled guilty to the fourth-degree

offense of abuse of his foster child, N.J.S.A. 9:6-3, by

engaging in “the habitual use . . . in the hearing of [the]

child, of profane, indecent or obscene language,” N.J.S.A. 9:6-

1(d).1   The trial court accepted the guilty plea based solely on

defendant’s admission that he “curse[d]” in the child’s presence

“in a way that would debauch his morals” and that he used “off-

color” language.

     The trial court denied defendant’s motion to vacate his

guilty plea based on an inadequate factual basis, and the

Appellate Division affirmed.

     We now reverse.   During the brief plea colloquy, defendant

was not asked to repeat the offending language or the frequency

with which he used the language.       The court did not assess

whether defendant’s conception of a curse word or off-color


1 Sub-part (d) refers to one of several descriptions of child
abuse in N.J.S.A. 9:6-1.
                                   2
language was equivalent to the statutory language prohibited by

N.J.S.A. 9:6-1(d).   In short, the court could not -- based on

the plea colloquy -- determine that defendant admitted to

committing the crime of child abuse.    Our conclusion that the

factual basis was inadequate to support the guilty plea does not

require that we reach the constitutional questions that have

been raised:   whether the statute treads on free-speech rights

and whether the statute is so hopelessly vague that a reasonable

person would not have notice of the conduct that is proscribed.

    Defendant’s guilty plea is vacated, his indictment is

reinstated, and this matter is remanded to the trial court for

further proceedings.

                                I.

                                A.

    Defendant was charged in a 2004 Morris County indictment

with first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2a(2)(c); second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4a; and third-degree aggravated criminal sexual

contact, N.J.S.A. 2C:14-3a.   Defendant allegedly committed those

criminal acts between September and November 1999, when he

served as a foster parent to thirteen-year-old R.G., who had

been placed in defendant’s home.     The long and tortuous

procedural history of this case is not germane to this appeal.

Suffice it to say that defendant filed multiple motions and

                                 3
cycled through a number of attorneys from the time of the

indictment in 2004 to the plea proceedings in June 2009.

     On June 4, 2009, the State tendered to defendant a plea

offer that expired that same day.     The State and defendant

entered into an agreement, which provided that defendant would

plead guilty to the downgraded charge of fourth-degree child

abuse.    See N.J.S.A. 9:6-1(d); N.J.S.A. 9:6-3.2   In return for

the guilty plea, the State agreed to dismiss the remaining

charges in the indictment and recommend a sentence of time

served.    The State also agreed that no fine would be imposed.

     That day, in court and on the record, defense counsel

explained the terms of the plea agreement to defendant.

Defendant stated that he understood and assented to the

agreement.    For the purpose of eliciting a factual basis to

support the guilty plea to child abuse, the court turned to

defense counsel to examine his client:

            [Defense counsel]:     Between the dates of
            September 1st, 1999 and November 30th, 1999,
            did you reside in the Township of Randolph in
            this County and this State?

            [Defendant]:   Yes, I did.

            [Defense counsel]:   Did you become a foster
            father to a person known as R.G.?

            [Defendant]:   Yes, I did.

2 The State amended the indictment’s second-degree child-
endangerment charge to the child-abuse charge.


                                  4
            [Defense counsel]: That person known to you
            was born on February 10th, 1986 and in the
            time stated was less than the age of 16. Is
            that correct, sir?

            [Defendant]:   That’s correct.

            [Defense counsel]: Did you at that time while
            having the duty as a parent for -- for this
            child, did you curse in his presence to and in
            a way that would debauch his morals?

            [Defendant]:   Yes.

At this point, the prosecutor interjected with the following

question:

            [Prosecutor]:    You -- you      used   off-color
            language in his presence?

            [Defendant]:   Yes.

The prosecutor then stated that “the factual allocution is

satisfactory to the State.”       Defense counsel asked defendant:

“Do you wish the Court to accept your plea of guilty to this

matter?”    Defendant responded, “Yes.”

    The court next questioned defendant:        “Do you feel you’ve

had enough time to think about your decision to enter this

plea?”   Defendant replied, “I would have liked more time, but I

understand the circumstances” -- an apparent reference to the

fact that the plea offer was only available that day.           After

some additional questioning, the court expressed its

satisfaction that (1) defendant had “given an appropriate

factual basis for the amended charge” of child abuse and (2)

                                     5
defendant had entered the guilty plea knowingly and voluntarily.3

                                 B.

     Fourteen months later, defendant still had not been

sentenced.    On August 27, 2010, defendant filed a motion to

withdraw his guilty plea on the ground that the plea was not

supported by an adequate factual basis.    He also sought to

withdraw his guilty plea for reasons not pertinent to our

resolution of this appeal.    On October 25, 2010, the trial court

conducted a hearing on the plea-withdrawal motion.    In denying

that motion, the court followed the template set forth in State

v. Slater, 198 N.J. 145 (2009), which addresses whether a

defendant may withdraw a guilty plea even when it is supported

by an adequate factual basis.

     With respect to the crimes charged in the indictment, the

court observed that defendant “sat in jail for a number of

years” and “maintained his innocence,” rejecting “favorable plea

offers to time served.”    Indeed, defendant had been incarcerated

for more than three years before he was released on bail on May

20, 2008.    According to the court, defendant only accepted

“responsibility” when he was “offered an opportunity to provide

a factual basis” to cursing in R.G.’s presence.    The court found


3 The day after the plea proceeding, defendant gave the following
written statement to the probation department on a form entitled
“Defendant’s Version of Instant Offense”: “I used foul
language, (swore) in front of my son.”
                                  6
that defendant provided a factual basis for child abuse because

he admitted that he was a foster parent in charge of a minor and

that “he did curse [and] use foul language” in the child’s

presence.    The court determined that none of defendant’s

arguments justified a withdrawal of his plea.

     The sentencing followed.    In his allocution, defendant told

the court:    “I felt, in the interest of justice, it would be the

right thing to do to accept the plea, but accepting the plea

would be understanding that the plea is valid, not invalid . . .

.”   Before imposing sentence, the court repeated that defendant

had admitted “that he did use foul language or curse” in the

presence of his foster child.    In accordance with the plea

agreement, the court sentenced defendant to the time he had

served in the Morris County Correctional Facility -- 1231 days

in all.4    The court assessed the requisite financial penalties

mandated by statute, but imposed no monetary fine.    The

remaining charges in the indictment were dismissed.

     Defendant appealed.

                                 C.

     In an unpublished opinion, the Appellate Division affirmed

the trial court’s denial of defendant’s motion to withdraw his




4 The jail time credit of 1231 days exceeded the maximum
eighteen-month sentence that could have been imposed for the
fourth-degree crime of child abuse. See N.J.S.A. 2C:43-6(a)(4).
                                  7
guilty plea.   In particular, the appellate panel determined

that, “in the context of the circumstances of the plea colloquy,

defendant provided a factual basis for his guilty plea.”     The

panel acknowledged that the “profane” language proscribed by

N.J.S.A. 9:6-1(d) “must be ‘habitual’ and defendant only

admitted to using off-color language without specifying the

frequency.”    Nevertheless, the panel held that “defendant was

unequivocal in stating that he committed the child [abuse]

offense by engaging in language that tended to debauch a child’s

morals, hardly a result that comes from one profane word.”     The

panel did not address -- but apparently assumed -- that the use

of curse words or off-color language satisfied the requirement

of using “profane, indecent or obscene language” under N.J.S.A.

9:6-1(d).   Last, the court rejected defendant’s alternative

arguments in support of his withdrawal motion.

                                 D.

    We granted defendant’s petition for certification.     State

v. Tate, 216 N.J. 367 (2013).    We also granted the motion of the

American Civil Liberties Union of New Jersey (ACLU) to

participate as amicus curiae.

                                 II.

    Defendant urges the Court to vacate the guilty plea to

child abuse because he did not provide a factual basis that



                                  8
established a violation of N.J.S.A. 9:6-1(d) and N.J.S.A. 9:6-3.5

Defendant argues that his admission to using “off-color” words

does not equate to using “profane, indecent or obscene language”

-- the language proscribed under the statute.   Moreover, even

assuming that off-color or curse words are equivalent to

“profane, indecent or obscene language,” defendant contends that

he never admitted to using such language “habitual[ly]” --

another essential requirement for a violation of N.J.S.A. 9:6-

1(d) and N.J.S.A. 9:6-3.    Additionally, in this appeal, for the

first time, defendant raises a challenge to the

constitutionality of those statutes.

     The ACLU submits that N.J.S.A. 9:6-1(d) and N.J.S.A. 9:6-3,

which criminalize the use of non-obscene profanity, are

unconstitutionally overbroad and vague and trench on free-speech

rights protected by the United States and New Jersey

Constitutions.   The ACLU notes that defendant “was penalized for

the mere use of ‘curse words’ and ‘off-color language,’” which

do not necessarily “fall in the constitutionally unprotected

category of obscenity.”    The ACLU opines that, under the

statutes, a parent could commit a crime for “merely cursing at




5 Defendant has advanced several arguments in support of his
motion to withdraw his guilty plea to child abuse. Because we
only address whether that plea should have been vacated for lack
of an adequate factual basis, we do not present defendant’s
other arguments.
                                  9
the television every week during a football game.”   The ACLU

also agrees with defendant that the plea colloquy failed to set

forth a factual basis for a violation of the child-abuse

statutes.

    In contrast, the State argues that defendant’s admission to

cursing in a way that would debauch the morals of a child and to

using off-color language satisfies the statutory proscription

against the habitual use of profane, indecent, or obscene

language in the presence of a minor.   The State infers the

habitual use of such language in R.G.’s presence because

defendant admitted that R.G. resided in his home for a three-

month period and because defendant “in no way limited his

factual admission . . . to a specific instance of conduct.”     The

State also posits that, in deciding whether to vacate a plea for

an inadequate factual basis, a court may “consider evidence that

was available to the prosecutor and defendant through discovery”

when the plea was entered.   From this premise, the State reasons

that defendant’s admission to the use of curse words and off-

color language may be considered along with “the affidavit of

arrest,” which purportedly “details how the victim told police

that the defendant had sexually explicit conversations with

him.”

    Last, the State asks this Court to disregard the

constitutional challenges to N.J.S.A. 9:6-1(d) and N.J.S.A. 9:6-

                                10
3, which are raised here for the first time.   The State contends

that defendant did not attack the constitutionality of those

statutes in the trial court or Appellate Division and that

amicus cannot raise arguments not advanced by the parties.

Alternatively, the State maintains that the statutes are not

facially vague or overbroad and pass constitutional muster as

applied to the facts of this case.

                               III.

                                A.

    The 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.   Manalapan Realty, L.P. v. Twp. Comm., 140

N.J. 366, 378 (1995) (“A trial court’s interpretation of the law

and the legal consequences that flow from established facts are

not entitled to any special deference.”).   An appellate court is

in the same position as the trial court in assessing whether the

factual admissions during a plea colloquy satisfy the essential

elements of an offense.   When reviewing the adequacy of the

factual basis to a guilty plea, the trial court is not making a

determination based on witness credibility or the feel of the

case, circumstances that typically call for deference to the

trial court.   See State v. Barboza, 115 N.J. 415, 422 (1989)

(“The discretion of the trial court in assessing a plea is

limited to assuring that the criteria for a valid plea of guilty

                                11
have been met.”).    In short, if a factual basis has not been

given to support a guilty plea, the analysis ends and the plea

must be vacated.

    Significantly, the standard of review here is different

from a court’s denial of a motion to withdraw a guilty plea

where the plea is supported by an adequate factual basis but the

defendant later asserts his innocence.    In that circumstance,

the trial court’s decision is judged by the four-prong test set

forth in Slater, supra:    “(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 [will] result in unfair

prejudice to the State or unfair advantage to the accused.”       198

N.J. at 157-58.    In a Slater scenario, the appellate standard of

review is abuse of discretion.    State v. Lipa, 219 N.J. 323, 332

(2014).   That is so because the trial court is making

qualitative assessments about the nature of a defendant’s

reasons for moving to withdraw his plea and the strength of his

case and because the court is sometimes making credibility

determinations about witness testimony.

    To be clear, when the issue is solely whether an adequate

factual basis supports a guilty plea, a Slater analysis is

unnecessary.   See State v. Campfield, 213 N.J. 218, 230-32, 235-

37 (2013) (analyzing whether factual basis existed without

                                 12
discussing Slater factors); see also State ex rel. T.M., 166

N.J. 319, 325-27, 332-37 (2001) (concluding there was inadequate

factual basis for defendant’s guilty plea without discussing

factors for plea withdrawal).      This is a point that may not have

been fully understood by the parties.

    Here, we must also construe the meaning of the statutes

governing child abuse and Rule 3:9-2.     Our interpretation of a

statute and a court rule is de novo as well.      Willingboro Mall,

Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 253 (2013)

(“In construing the meaning of a court rule or a statute, our

review is de novo, and therefore we owe no deference to the

trial court’s or Appellate Division’s legal conclusions.”).

                                   B.

    We next discuss our court rule and case law requiring that

a defendant provide a factual basis to support a guilty plea.

    Under our jurisprudence, a person cannot be punished for

violating a criminal statute unless he has been convicted at

trial or he has admitted his guilt through the entry of a plea.

At a trial, the factfinder must be satisfied that the proofs

establish guilt; at a plea hearing, a judge must be satisfied

that the defendant has given a factual account that makes him

guilty of the crime.   R. 3:9-2.    Like a trial, a plea hearing is

intended to “ensur[e] that innocent people are not punished for

crimes they did not commit.”    See State v. Taccetta, 200 N.J.

                                   13
183, 198 (2009).

    Rule 3:9-2, in part, provides that a court shall not accept

a guilty plea

         without first questioning the defendant
         personally, under oath or by affirmation, and
         determining by inquiry of the defendant and
         others, in the court’s discretion, that there
         is a factual basis for the plea and that the
         plea is made voluntarily, not as a result of
         any threats or of any promises or inducements
         not disclosed on the record, and with an
         understanding of the nature of the charge and
         the consequences of the plea.

         [(Emphasis added).]

    The principal purpose of the factual-basis requirement of

Rule 3:9-2 is to “protect a defendant who is in the position of

pleading voluntarily with an understanding of the nature of the

charge but without realizing that his conduct does not actually

fall within the charge.”   Barboza, supra, 115 N.J. at 421

(internal quotation marks omitted).   Rule 3:9-2 serves as a

fail-safe mechanism that filters out those defendants whose

factual accounts do not equate to a declaration of guilt.      Thus,

before accepting a guilty plea, “the trial court must be

‘satisfied from the lips of the defendant that he committed the

acts which constitute the crime.’”    State v. Smullen, 118 N.J.

408, 415 (1990) (quoting Barboza, supra, 115 N.J. at 422)

(restated in Slater, supra, 198 N.J. at 155).   A factual basis

for a plea must include either an admission or the


                                14
acknowledgment of facts that meet “‘the essential elements of

the crime.’”   T.M., supra, 166 N.J. at 333 (quoting State v.

Sainz, 107 N.J. 283, 293 (1987)); see also Campfield, supra, 213

N.J. at 232 (“The trial court’s task is to ensure that the

defendant has articulated a factual basis for each element of

the offense to which he pleads guilty.”).6

     T.M. is illustrative of this point.     There, the defendant

pled guilty to fourth-degree criminal sexual contact under

N.J.S.A. 2C:14-3b.   T.M., supra, 166 N.J. at 322.   Although the

defendant acknowledged that he had touched and kissed the

private areas of a child, id. at 323, we held that the factual

basis was inadequate because he did not acknowledge that he

committed those acts with “‘the purpose of degrading or

humiliating the victim or sexually arousing or sexually

gratifying [himself],’” id. at 333 (quoting N.J.S.A. 2C:14-1d).

That state-of-mind requirement is an essential element of

criminal sexual contact.   Id. at 333-34.    T.M. reminds us that a

factual basis must be given for every element of even the most

heinous of crimes.   See id. at 333.


6 We recognize that, in certain limited circumstances, a
particular element of an offense may address a fact that is
beyond a defendant’s knowledge. For example, a defendant may
not know whether an unlawful transaction occurred within 1000
feet of a school. To satisfy such an element, the prosecutor
should make an appropriate representation on the record at the
time of the hearing, so that the defendant can acknowledge or
dispute it.
                                15
       In the end, a court must “reject a guilty plea absent the

defendant’s admission of ‘the distasteful reality that makes the

charged conduct criminal.’”    Campfield, supra, 213 N.J. at 231

(quoting T.M., supra, 166 N.J. at 334-35).

                                 C.

       The State argues that a court may look to evidence beyond

the words spoken at the plea colloquy -- such as the affidavit

of arrest -- to establish a factual basis.     As support for that

proposition, the State cites to State v. Mitchell, 126 N.J. 565,

581-82 (1992).   We reject that argument and do not rely on

Mitchell here for two reasons.   First, Mitchell did not involve

a motion to vacate a plea before or shortly after sentencing.

Id. at 572.   Rather, in Mitchell, the defendant challenged the

factual basis of a plea for the first time on post-conviction

relief six-and-one-half years after his sentencing.     Id. at 572,

574.    The Court determined that the defendant’s post-conviction

relief petition in Mitchell was both time-barred and

procedurally barred.    Id. at 572.   The Court wrote in Mitchell

“that this case does not present the type of exceptional

circumstances that would justify [the] relaxation” of our rules

governing post-conviction relief.     Ibid.   Despite resolving the

issue on procedural grounds, the Court upheld the factual basis

of the guilty plea.    Id. at 572, 581.

       Mitchell stated that an assessment of the factual adequacy

                                 16
of a guilty plea may include such “surrounding circumstances” as

“the proceedings of [a] co-defendant’s trial” and a defendant’s

“presentence report.”   Id. at 581-82.   Generally speaking, the

manner in which Mitchell used “surrounding circumstances” finds

no support in our jurisprudence, not even in the cases Mitchell

cited -- Barboza and Sainz.   While it is true that Barboza and

Sainz state that a court may look to “all surrounding

circumstances” to determine whether a factual basis was given,

they do not indicate that a court may look to sources that go

beyond the actual facts, spoken or acknowledged, at the plea

colloquy.   Barboza, supra, 115 N.J. at 422; Sainz, supra, 107

N.J. at 293.   Indeed, Sainz, which first used the “surrounding

circumstances” language, cited as authority State v. Heitzman,

209 N.J. Super. 617, 620-21 (App. Div. 1986), aff’d, 107 N.J.

603 (1987), a case that looked only to the plea colloquy in

upholding the factual basis of a guilty plea.   Importantly, both

Barboza and Sainz reaffirmed the basic principle that the

factual basis for a guilty plea must come directly from the

defendant and not from informational sources outside of the plea

colloquy.   Barboza, supra, 115 N.J. at 422 (stating that “the

trial court must be satisfied from the lips of the defendant

that he committed the acts which constitute the crime” (internal

quotation marks omitted)); Sainz, supra, 107 N.J. at 293 (“The

factual basis for a guilty plea must obviously include

                                17
defendant’s admission of guilt of the crime or the

acknowledgement of facts constituting the essential elements of

the crime.”).

    In Mitchell, the “surrounding circumstances” to the plea

informed the Court’s decision that no fundamental injustice

warranted a relaxation of the post-conviction relief time

limitations; however, surrounding circumstances cannot

substitute for the failure to elicit an adequate factual basis

from a defendant, where a timely motion or appeal is made to

vacate a plea.   For those reasons, we do not follow Mitchell

here.

                                 IV.

    We now turn to the substantive law applicable to this case.

    The essential elements of child abuse are found in two

statutes.    N.J.S.A. 9:6-3 states that “[a]ny parent, guardian or

person having the care, custody or control of any child” who

abuses that child commits a fourth-degree crime.     Child abuse is

defined in various ways under N.J.S.A. 9:6-1, but only one form

of such abuse is relevant in this case.    N.J.S.A. 9:6-1(d)

provides that child abuse consists of “the habitual use . . . in

the hearing of [a] child, of profane, indecent or obscene

language.”   In this case, a factual basis to the guilty plea of

child abuse had to satisfy these elements:   (1) defendant had

custody or control of thirteen-year-old R.G., a minor; (2) he

                                 18
used profane, indecent, or obscene language in the presence of

R.G.; and (3) he did so on a habitual basis.

    That defendant, as a foster parent, had custody or control

of R.G. for three months is not in dispute.    The question is

whether defendant’s factual basis met the remaining elements.

    The current language in N.J.S.A. 9:6-1(d) is unchanged from

the original legislation enacted in 1915.     L. 1915, c. 246, § 1.

The statutory scheme does not define “profane, indecent or

obscene” language or the word “habitual.”     In the absence of a

legislative definition, we generally “ascribe[] to the words

used ‘their ordinary meaning and significance.’”     Murray v.

Plainfield Rescue Squad, 210 N.J. 581, 592 (2012) (quoting

DiProspero v. Penn, 183 N.J. 477, 492 (2005)); see also N.J.S.A.

1:1-1 (stating that customarily “words and phrases” in statute

are to “be given their generally accepted meaning, according to

the approved usage of the language”).   The general dictionary

definitions of those words have remained remarkably similar

since the enactment of the 1915 legislation.     That is not to say

that the social taboos regarding the usage of certain words in

1915 are the same as those of the present day.

    The words profane and indecent, and even obscene, are not

susceptible to neat and fixed definitions.     Profane is defined

variously as “serving to debase or defile that which is holy or

worthy of reverence”; “characterized by abusive language

                               19
directed [especially] against the name of God”; “indulging in

cursing or vituperation”; and “marked by insulting or perverted

utterance.”   Webster’s Third New Int’l Dictionary 1810 (3d ed.

1981); see also The Century Dictionary 4754 (1913) (defining

profane as “[i]rreverent toward God or holy things; speaking or

spoken, acting or acted, in manifest or implied contempt of

sacred things; blasphemous” and “[t]o put to a wrong use; employ

basely or unworthily”).

    Indecent is defined variously as “altogether unbecoming”;

“contrary to what the nature of things or what circumstances

would dictate as right or expected or appropriate”; “not

conforming to generally accepted standards of morality”;

“tending toward or being in fact something generally viewed as

morally indelicate or improper or offensive”; and “being or

tending to be obscene.”   Webster’s Third New Int’l Dictionary,

supra, at 1147; see also The Century Dictionary, supra, at 3052

(defining “indecent” in 1913 as “[u]nbecoming; unseemly;

violating propriety in language, behavior, etc.”; and “[g]rossly

vulgar; offensive to modesty; obscene; lewd”).

    Obscene is defined variously as “grossly repugnant to the

generally accepted notions of what is appropriate”; “abhorrent

to morality or virtue”; “inciting or designed to incite to lust,

depravity, indecency”; and “marked by violation of accepted

language inhibitions and by the use of words regarded as taboo

                                20
in polite usage.”    Webster’s Third New Int’l Dictionary, supra,

at 1557; see also The Century Dictionary, supra, at 4062

(defining “obscene” in 1913 as “[o]ffensive to the senses;

repulsive; disgusting; foul; filthy”; and “[o]ffensive to

modesty and decency; impure; unchaste; indecent; lewd”).

    Curse words and off-color language may fall both in and out

of the range of the definitions of profane, indecent, and

obscene language.    Among the definitions of “curse” is “any

utterance marked by malediction or execration”; “to rail at

typically impiously and profanely”; “blaspheme”; “to swear at”;

and to “invoke divine vengeance or anger against -- sometimes

used with out.” Webster’s Third New Int’l Dictionary, supra, at

558; see also Webster’s Unabridged Dictionary of the English

Language 492 (2001) (defining “curse word” as “profane or

obscene word, [especially] as used in anger or for emphasis”;

and “any term conceived of as offensive”).

    “Off-color” is defined as “being of doubtful propriety”;

“not socially acceptable”; “dubious”; and “risqué.”   Webster’s

Third New Int’l Dictionary, supra, at 1566.

    In light of the definitions of those words, we must

determine whether defendant in his plea colloquy admitted to

using profane, indecent, or obscene language in violation of

N.J.S.A. 9:6-1(d).

                                 V.

                                 21
    With the applicable legal principles in mind, we now

examine whether the factual basis elicited from defendant to

support his guilty plea satisfied the elements of child abuse.

That is, did defendant admit to or acknowledge uttering profane,

indecent, or obscene language in the presence of R.G. on a

habitual basis?    As we discussed, the words profane, indecent,

and obscene are susceptible to various interpretations -- and

reasonable people may have different understandings of the

meaning of those words.    Here, defendant was never asked

precisely what words he uttered that fit the statutory language.

Defendant merely answered, “Yes,” to the question, “did you

curse in [R.G.’s] presence to and in a way that would debauch

his morals?” and, “Yes,” to the question, “you used off-color

language in his presence?”

    Curse words and off-color language many times will be

synonymous with profane, indecent, or obscene language, but not

always.     Therefore, it is not possible to determine whether

defendant’s use of a curse word or off-color language is the

equivalent of the language proscribed by the child-abuse

statutes.    Conceptions of what constitutes a curse word -- even

ones that would debauch the morals of a minor -- and off-color

language may differ among reasonable people.     What is profane or

indecent may depend on social norms that are fluid.

    The flaw in the plea colloquy was the failure to elicit the

                                  22
actual words and language uttered by defendant in the presence

of R.G.     Only then would the court have been in a position to

make an independent determination whether the purportedly

offending language constituted child abuse.

    Moreover, even if we accept that the use of curse words or

off-color language is the equivalent of “profane, indecent or

obscene language,” N.J.S.A. 9:6-1(d), the plea colloquy did not

elicit whether defendant engaged in the “habitual use” of such

language.    The “habitual use” of the statutorily proscribed

language is an element of child abuse.     Ibid.    Defendant’s

factual account does not satisfy that element.       We cannot infer

from defendant’s admission that because R.G. lived with him for

three months, defendant therefore must have habitually cursed in

the minor’s presence.

    Eliciting an adequate factual basis should not be a complex

or difficult undertaking if a defendant is willing and able to

give a truthful account of the conduct that violates a statute.

We are aware of the long procedural history of this case, and

that the State attributes delays to defendant and that defendant

complains about the one-day-only plea offer.       But the sole

matter of consequence that we address is whether the factual

basis given during the plea colloquy conforms to our court rules

and jurisprudence.

    We need not decide whether N.J.S.A. 9:6-1(d) is so broadly

                                  23
and vaguely worded that it treads on constitutionally protected

free-speech or due-process rights, or the right of a parent to

raise a child without undue interference by the State.7   Here,

the factual basis does not comport with the requirements of our

court rules or jurisprudence and, therefore, we choose not to

reach the constitutional issue raised for the first time on

appeal before us.   Randolph Town Ctr., L.P. v. Cnty. of Morris,

186 N.J. 78, 80 (2006) (“Courts should not reach a

constitutional question unless its resolution is imperative to

the disposition of litigation.”).

     Because we conclude that the factual basis does not satisfy

the elements of N.J.S.A. 9:6-1(d), we are constrained to vacate

defendant’s plea of guilty to child abuse.

                                VI.

     For the reasons explained, we reverse the judgment of the

Appellate Division and vacate defendant’s guilty plea to child

abuse.   Defendant is returned to the position where he stood

before he entered his guilty plea.    His indictment, therefore,

is reinstated and this matter is remanded for further


7 Amicus ACLU cites to the New Jersey Law Revision Commission,
which recommends the deletion of N.J.S.A. 9:6-1(d). See N.J.
Law Revision Comm’n, Final Report Relating to Title 9-Child
Abuse and Neglect 2, 5, 49 (2014). However, the Law Revision
Commission proposal is not pertinent to our analysis. It is not
our role to pass on the wisdom of current or proposed
legislation. In re P.L. 2001, Chapter 362, 186 N.J. 368, 391
(2006).
                                24
proceedings.

     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily
assigned) join in JUSTICE ALBIN’s opinion.




                                2
               SUPREME COURT OF NEW JERSEY

NO.   A-46                                  SEPTEMBER TERM 2013

ON CERTIFICATION TO           Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

              v.

JOHN TATE,

      Defendant-Appellant.




DECIDED              February 2, 2015
               Chief Justice Rabner                       PRESIDING
OPINION BY                Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                       REVERSE/
                                        VACATE/
          CHECKLIST
                                      REINSTATE/
                                        REMAND
 CHIEF JUSTICE RABNER                      X
 JUSTICE LaVECCHIA                         X
 JUSTICE ALBIN                             X
 JUSTICE PATTERSON                         X
 JUSTICE FERNANDEZ-VINA                    X
 JUSTICE SOLOMON                           X
 JUDGE CUFF (t/a)                          X
 TOTALS                                    7




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