                                                     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. Tahir S. Gregory (A-40-13) (072715)

Argued October 6, 2014 -- Decided February 2, 2015

SOLOMON, J., writing for a unanimous Court.


          In this appeal, the Court considers whether defendant provided an adequate factual basis to sustain his plea
of guilty to possession with the intent to distribute a controlled dangerous substance within 1000 feet of school
property.

          Defendant Tahir S. Gregory was arrested and charged in a ten-count indictment with, among other things,
possession of a controlled dangerous substance (heroin) with the intent to distribute within 1000 feet of a school,
N.J.S.A. 2C:35-7. Defendant pled guilty to a violation of N.J.S.A. 2C:35-7, which provides that “[a]ny person who .
. . possess[es] with intent to distribute a controlled dangerous substance . . . within 1,000 feet of [any] school
property. . . is guilty of a crime.” 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. He
acknowledged initialing and signing the plea form, and admitted during his plea colloquy that he was entering his
guilty plea knowingly and voluntarily. The “nature of the offense” section of the standard plea form initialed and
signed by defendant lists the charge against defendant as “Poss CDS w/ intent School Zone.” Nowhere on the form
does it state “intent to distribute.” The trial court accepted defendant’s plea of guilty and sentenced him to an
extended term of eight years in prison with a forty-eight month parole disqualifier.

          Defendant appealed, contending, among other things, that he did not provide an adequate factual basis to
sustain his guilty plea. The Appellate Division affirmed defendant’s conviction. The Court granted defendant’s
petition for certification. 216 N.J. 359 (2013).

HELD: Defendant did not provide a factual basis sufficient to sustain his guilty plea because he did not admit to all
of the elements of the crime or admit facts from which the court could conclude that all of the elements of the crime
had been established.

1. 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. In recognition of a defendant’s constitutional protections, when he or she decides to plead guilty and waive
the right to a trial the court “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). During a plea hearing, a defendant must be questioned personally in order to establish a factual
basis for the plea. The factual basis for a guilty plea can be established by a defendant’s explicit admission of guilt
or by a defendant’s acknowledgment of the underlying facts constituting the essential elements of the crime. State
v. Campfield, 213 N.J. 218, 231 (2013)(citing State v. Sainz, 107 N.J. 283, 293 (1987). (pp. 4-6)

2. Because the trial court is in no better position than an appellate court to determine whether the factual admissions
during a plea colloquy satisfy the essential elements of an offense, 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. The elements of the offense to
which defendant pled guilty here were (1) possession of a controlled dangerous substance, (2) with the purposeful or
knowing intent to distribute the substance, and (3) within 1000 feet of any school property. During his plea
colloquy, defendant admitted to knowingly or purposely possessing heroin 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. Although the word “intent” appears on
the plea form that defendant admitted initialing and signing, he did not clarify at the plea hearing whether the word

                                                           1
“intent” on the plea form referred to “possess” or “distribute.” Without defendant’s testimony explaining and
acknowledging his “intent to distribute,” the plea form is not germane. Although the State urges the Court to
presume defendant’s intent to distribute from the way the narcotics were packaged, a court is not permitted to
presume facts required to establish “‘the essential elements of the crime.’” State ex rel. T.M., 166 N.J. 319, 333
(1999)(quoting Sainz, 107 N.J. at 293). It was incumbent upon the trial court to make sure that a comprehensive
factual basis, addressing each element of the offense in substantial detail, was given when defendant pled guilty.
Because the factual basis falls short here, the Court is constrained to vacate defendant’s guilty plea and remand to
the trial court. (pp. 6-9)

        The judgment of the Appellate Division is REVERSED, defendant’s guilty plea is VACATED, the
indictment is REINSTATED, and the matter is REMANDED to the trial court.

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




                                                          2
                                       SUPREME COURT OF NEW JERSEY
                                         A-40 September Term 2013
                                                  072715

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

TAHIR S. GREGORY, a/k/a TAHIR
NELSON, TAHIR S. SAHKOOR, and
TAMIR SHAKUR,

    Defendant-Appellant.


         Argued October 6, 2014 – Decided February 2, 2015

         On certification to the Superior Court,
         Appellate Division.

         Susan C. Green, First Assistant Deputy
         Public Defender, argued the cause for
         appellant (Joseph E. Krakora, Public
         Defender, attorney; Ms. Green, Elizabeth C.
         Jarit, Assistant Deputy Public Defender, and
         Steven E. Braun, Designated Counsel, on the
         briefs).

         Jane C. Schuster, Deputy Attorney General,
         argued the cause for respondent (John J.
         Hoffman, Acting Attorney General of New
         Jersey, attorney).



    JUSTICE SOLOMON delivered the opinion of the Court.

    Defendant pled guilty to possession with the intent to

distribute a controlled dangerous substance within 1000 feet of

school property.   The question before this Court is whether

defendant provided an adequate factual basis to sustain his plea


                                 1
of guilty.   Defendant did not admit to all of the elements of

the crime or admit facts from which the court could conclude

that all of the elements of the crime had been established.

Accordingly, we reverse defendant’s conviction, vacate his

guilty plea, reinstate the indictment, and remand the matter to

the trial court.

                                I.

    Freddie Robinson, Joseph Parker-Bey, and defendant Tahir S.

Gregory were arrested following a narcotics investigation

conducted by the Atlantic City Police Department.      Defendant was

charged in a ten-count indictment with, among other things,

possession of a controlled dangerous substance (heroin) with the

intent to distribute within 1000 feet of a school, contrary to

N.J.S.A. 2C:35-7.

    On the day of trial, defendant expressed the desire to

represent himself, and the trial court conducted a self-

representation hearing.   At the hearing, defendant confirmed

that he understood the nature of the charges against him,

including the charge of “intent to distribute,” and he was able

to define the term distribution.       After a short recess,

defendant withdrew the request to represent himself and asked to

proceed to trial.

    The next day, defendant decided instead to plead guilty to

a violation of N.J.S.A. 2C:35-7, which provides that “[a]ny

                                   2
person who . . . possess[es] with intent to distribute a

controlled dangerous substance . . . within 1,000 feet of [any]

school property. . . is guilty of a crime.”    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.      He

acknowledged initialing and signing the plea form, and admitted

during his plea colloquy that he was entering his guilty plea

knowingly and voluntarily.    The “nature of the offense” section

of the standard plea form initialed and signed by defendant

lists the charge against defendant as “Poss CDS w/ intent School

Zone.”    Nowhere on the form does it state “intent to

distribute.”   The trial court accepted defendant’s plea of

guilty and sentenced him to an extended term of eight years in

prison with a forty-eight month parole disqualifier.

     Defendant appealed, contending, among other things, that he

did not provide a factual basis sufficient to sustain his guilty

plea.    The Appellate Division affirmed defendant’s conviction,

and we granted certification, State v. Gregory, 216 N.J. 359

(2013).

                                 II.

     Defendant contends that, because he did not admit to

intent to distribute heroin, the factual basis he gave in

support of his guilty plea was insufficient to sustain his

                                  3
conviction under N.J.S.A. 2C:35-7.    The State, citing State ex

rel. T.M., counters that defendant’s admissions provide a

sufficient factual basis for his guilty plea when “examined in

light of all surrounding circumstances and in the context of

[the] entire plea colloquy.”   166 N.J. 319, 327 (1999) (citing

State v. Smullen, 118 N.J. 408, 415 (1990); State v. Barboza,

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

                               III.


    We begin our analysis with a review of defendant’s rights

and the court’s responsibilities in a plea hearing.   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.”   Barboza, supra, 115 N.J. at 420 (citing McCarthy

v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L.

Ed. 2d 418, 425 (1969); State v. Taylor, 80 N.J. 353, 361-62

(1979)).   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.   See State v. Medina,

147 N.J. 43, 48-49 (1996).

    In recognition of a defendant’s constitutional protections,

when he or she decides to plead guilty and waive the right to a

trial, the court “must be convinced that (1) the defendant has



                                 4
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).     Thus, our

rules require that during a plea hearing a defendant be

questioned personally in order to establish a factual basis for

the plea:

            The court, in its discretion, may refuse to
            accept a plea of guilty and shall not accept
            such 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.
            [R. 3:9-2.]
    The factual basis for a guilty plea can be established by a

defendant’s explicit admission of guilt or by a defendant’s

acknowledgment of the underlying facts constituting essential

elements of the crime.    State v. Campfield, 213 N.J. 218, 231

(2013) (citing State v. Sainz, 107 N.J. 283, 293 (1987)).

    In Campfield, this Court concluded that the defendant’s

admissions to beating the victim, forcing him to remove most of

his clothing, and chasing him into the woods in frigid weather

established the element of recklessness under the manslaughter

statute.    Id. at 236.   This Court reached a similar conclusion


                                   5
in State v. Simon, 161 N.J. 416, 450 (1999), where we said that,

“[i]n addition to the defendant’s own words, common sense

informs us that when someone shoots at another person in the

upper body region, such as the neck and head, the shooter’s

purpose is either to cause serious bodily injury that results in

death or to actually cause death.”

                                IV.

    With those principles in mind, we turn to defendant’s

contention that the factual basis given was inadequate to

demonstrate that he violated N.J.S.A. 2C:35-7.   “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.”     State

v. Tate, __ N.J. __, __ (2015) (slip op. at 11); Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 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.”).   Because the trial court is not

making determinations such as the credibility of witnesses,

which call for deference, it is in no better position than an

appellate court to determine whether the factual admissions

during a plea colloquy satisfy the essential elements of an

offense.   See Barboza, supra, 115 N.J. at 422 (“The discretion

of the trial court in assessing a plea is limited to assuring

that the criteria for a valid plea of guilty have been met.”).

                                 6
    The elements of the offense to which defendant pled guilty

here were (1) possession of a controlled dangerous substance,

(2) with the purposeful or knowing intent to distribute the

substance, and (3) within 1000 feet of any school property.       Our

analysis of the sufficiency of the factual basis given as to

each of those elements begins with the recognition that trial

courts need not follow a “‘prescribed or artificial ritual’”

when entering a defendant’s guilty plea.    Id. at 231 (quoting

T.M., supra, 166 N.J. at 327).    Indeed, in State v. Mitchell,

126 N.J. 565, 581 (1992), we held that when considering a guilty

plea, trial courts are permitted to look at the “surrounding

circumstances.”    As fully explained in Tate, supra, __ N.J. at

__ (slip op. at 16-18), we interpret Mitchell to allow 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.

    Simply put, a defendant must acknowledge facts that

constitute the essential elements of the crime.    Sainz, supra,

107 N.J. at 293.    As we held in Campfield, supra, a defendant’s

admissions to beating the victim, forcing him to remove most of

his clothing, and chasing him into the woods in frigid weather

established the element of recklessness under the manslaughter

statute.   213 N.J. at 236.



                                  7
     We recognize that, in certain limited circumstances, a

particular element of an offense may address a fact that is

beyond a defendant’s knowledge; a defendant may not know whether

an unlawful transaction occurred within 1000 feet of a school.

To 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.

     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.1

However, the “intent to distribute” element of the offense was

absent from defendant’s testimony.

     Although the word “intent” appears on the plea form that

defendant admitted initialing and signing, he did not clarify at

the plea hearing whether the word “intent” on the plea form

referred to “possess” or “distribute.”2   Without defendant’s




1 Defendant 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.
2 A defendant can violate N.J.S.A. 2C:35-7 without intending to

be within 1000 feet of school property. State v. Ivory, 124
N.J. 582, 592 (1991) (“the fact that defendant may not have
intended to make distribution within 1,000 feet of school
property is irrelevant” (internal quotation marks omitted)).
                                8
testimony explaining and acknowledging his “intent to

distribute,” the plea form is not germane.


    The State urges this Court to presume defendant’s intent to

distribute from the way the narcotics were packaged.    However, a

court is not permitted to presume facts required to establish

“‘the essential elements of the crime.’”   T.M., supra, 166 N.J.

at 333 (quoting Sainz, supra, 107 N.J. at 293); see also

Campfield, supra 107 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.”).


    We acknowledge that this case involved separate hearings on

consecutive days.   The many factual representations made at

those proceedings undoubtedly complicated matters.

Nevertheless, it was incumbent upon the trial court to make sure

that a comprehensive factual basis, addressing each element of

the offense in substantial detail, was given when defendant pled

guilty.   Because the factual basis falls short here, we are

constrained to vacate defendant’s guilty plea and remand to the

trial court.

                                V.

    For the reasons set forth above, the judgment of the

Appellate Division is reversed, the defendant’s guilty plea is




                                 9
vacated, the indictment is reinstated, and the matter is

remanded to the trial court.


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




                               10
               SUPREME COURT OF NEW JERSEY


NO.    A-40                                 SEPTEMBER TERM 2013

ON CERTIFICATION TO           Appellate Division, Superior Court



STATE OF NEW JERSEY,

      Plaintiff-Respondent,

              v.

TAHIR S. GREGORY, a/k/a TAHIR
NELSON, TAHIR S. SAHKOOR, and
TAMIR SHAKUR,
      Defendant-Appellant.




DECIDED              February 2, 2015

               Chief Justice Rabner                       PRESIDING

OPINION BY                Justice Solomon

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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