                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3640-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARK J. SPATUCCI,

     Defendant-Appellant.
____________________________

                    Argued October 1, 2018 – Decided October 24, 2018

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 15-04-0586.

                    James M. Doyle argued the cause for appellant
                    (Galantucci, Patuto, De Vencentes, Potter & Doyle,
                    LLC, attorneys; David J. Altieri, on the briefs).

                    Ian C. Kennedy, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Dennis Calo, Acting Bergen County
                    Prosecutor, attorney; Ian C. Kennedy, of counsel and
                    on the brief).

PER CURIAM
      Defendant Mark Spatucci appeals from an April 6, 2017 judgment of

conviction for murder, N.J.S.A. 2C:11-3(a)(1)(2), and third-degree hindering

apprehension, N.J.S.A. 2C:29-3(b)(1). The charges stemmed from defendant

choking to death his on-again off-again girlfriend, with whom he had a

tumultuous relationship and a child in common. After entering a negotiated

guilty plea, but prior to sentencing, defendant moved to withdraw his plea. The

motion court denied the motion and sentenced defendant in accordance with the

plea agreement to a forty-five-year term of imprisonment, subject to the No

Early Release Act, N.J.S.A. 2C:43-7.2, on the murder charge and a concurrent

five-year term on the hindering charge.

      On appeal, defendant raises the following points for our consideration:

            POINT ONE

            THE FACTUAL BASIS PROVIDED TO THE COURT
            FAILED TO ESTABLISH THE REQUISITE MENS
            REA FOR [MURDER].

            POINT TWO

            THE TRIAL COURT ABUSED ITS DISCRETION BY
            DENYING THE DEFENDANT'S PRE-SENTENCE
            MOTION TO VACATE OR WITHDRAW HIS
            GUILTY PLEA.

            POINT THREE



                                                                        A-3640-16T1
                                          2
            THE TRIAL COURT ERRED IN SENTENCING THE
            DEFENDANT      BY      DOUBLE-COUNTING
            AGGRAVATING FACTOR ONE.

For the reasons that follow, we affirm.

      Defendant pled guilty to murder and hindering apprehension pursuant to

a plea agreement in which the State agreed to dismiss the remaining ten counts

of the indictment.1 At the plea hearing, in eliciting the factual basis, defendant

was questioned by his attorney, the prosecutor, and the court.         Defendant

admitted that on the night of October 23, 2013, while at the victim's home, the

two got into an argument during which defendant put the victim into a headlock

and choked her until she stopped breathing. Defendant admitted knowing that

his actions could result in the victim's death. Defendant also admitted that,

afterwards, he returned to his parents' house and washed the clothes he was

wearing in order to destroy any evidence of his crimes.

      During the plea colloquy, defendant also adopted the sworn statement he

provided members of the Bergen County Prosecutor's Office during questioning.

In the statement, defendant confessed that he "killed [the victim,]" and


1
  The remaining counts of the indictment consisted of third-degree burglary,
N.J.S.A. 2C:18-2; three counts of first-degree felony murder, N.J.S.A. 2C:11-
3(a)(3); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(3) and (a)(6); second-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4).
                                                                          A-3640-16T1
                                          3
demonstrated with his right arm how he choked her until she stopped moving.

He also admitted to the detectives that he knew that by choking the victim, he

was killing her, but he did it because he knew that, otherwise, she would go to

the police and that was his only option to avoid apprehension. After determining

that defendant provided an adequate factual basis and had knowingly,

voluntarily, and intelligently entered his guilty plea, as required by Rule 3:9-2,

the plea court accepted the guilty plea and scheduled defendant's sentencing.

      However, prior to sentencing, defendant replaced his attorney and moved

to vacate or withdraw his guilty plea. Defendant asserted the plea should be

vacated because the factual basis provided to the court during the plea colloquy

failed to establish the purposeful or knowing mental state required for murder.

Alternatively, defendant argued that he should be permitted to withdraw his plea

based on the factors set forth in State v. Slater, 198 N.J. 145 (2009).

Specifically, defendant asserted that his history of substance abuse, mental

health issues, and volatile relationship with the victim provided several defenses

to murder, including diminished capacity, intoxication and passion/provocation.

However, because his psychiatric evaluation was not completed prior to him

entering the plea and he was only afforded forty-eight hours to make a decision

whether to accept the State's offer, his decision was uninformed. Further,


                                                                          A-3640-16T1
                                        4
defendant asserted that there was no prejudice to the State inasmuch as no trial

had been scheduled, and given the timing of the motion, the court was required

to consider his application with liberality.

      Following oral argument, on February 23, 2017, the motion court issued

a written opinion, denying defendant's motion and determining defendant "failed

to present sufficient grounds" to "vacate or withdraw his guilty plea[.]" Initially,

the court found that "defendant's factual basis adequately established the

elements of murder." Citing N.J.S.A. 2C:11-3(a)(1) and 2C:11-3(a)(2), the

court recounted that the elements for murder required that "defendant purposely

or knowingly cause[] death or serious bodily injury that resulted in death."

According to the court, "purpose and knowledge are conditions of the mind" that

"may . . . be inferred from the circumstances."

      Relying on State v. Campfield, 213 N.J. 218, 231 (2013), the court pointed

out that in order to establish a factual basis, "defendant may either explicitly

admit guilt with respect to the elements or may acknowledge . . . facts

constituting the essential elements of the crime." After careful review of the

plea hearing transcript, the court concluded that defendant's "factual basis

established the elements of purposeful[,] knowing murder."              The court

explained:


                                                                            A-3640-16T1
                                         5
            [D]efendant admitted he knew he could kill the victim
            by choking her and preventing her from breathing.
            Defendant further admitted he purposely, knowingly
            choked the victim until she stopped breathing and
            moving. Moreover, the defendant admitted he killed
            the victim because he thought she would go to the
            police, and it seemed like the only option he had was to
            kill her.     Therefore, the defendant admitted he
            purposely choked the victim until she stopped breathing
            so she could not go to the police. Without reciting
            verbatim the statutory definition of purposeful and
            knowing conduct, the factual basis was still established.

      The court rejected defendant's contention that his plea colloquy only

supported "the notion" that he "purposely and knowingly choked the victim, not

that he purposely and knowingly killed the victim[,]" and was therefore only

"reflective o[f] reckless conduct[.]"         The court also rejected defendant's

assertion that "he was simply confirming what he had told investigators rather

than admitting guilt." The court described defendant's arguments as a "play-on-

words approach" that "[did] not change the fact [that] a verbatim reading of the

statutory language [was] not required."

      In addressing defendant's motion to withdraw his plea, the court

acknowledged that "[a] court has discretion to set aside a plea under the 'interests

of justice' standard" and that "courts are to exercise their discretion liberally to

allow plea withdrawals" for "applications made 'before sentencing[.]'" The

court also acknowledged that application of the following four factors

                                                                            A-3640-16T1
                                          6
prescribed in Slater informed the analysis: "(1) whether the defendant has

asserted a colorable claim of innocence; (2) the nature and strength of

defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4)

whether withdrawal would result in unfair prejudice to the State or unfair

advantage to the accused." 198 N.J. at 157-58.

      With respect to the first factor, relying on State v. Lipa, 219 N.J. 323, 333

(2014), the court determined that "defendant failed to provide 'specific, credible

facts' to support his claim." On the contrary, defendant's acknowledgement

while under oath that "he pled guilty because he was in fact guilty" and that "all

answers on the plea form were his answers" and "were truthful[,]" bel ied any

claim of innocence. The court also rejected defendant's claimed reason for

withdrawing his guilty plea, namely, that "he did not have the appropriate

information . . . to make a decision."

      Finding defendant's claims unsupported by the record, the court rejected

defendant's claims that "he was only given forty-eight hours to decide whether

to accept or reject the plea offer" 2 and that "prior counsel" failed to "critically


2
  To support his assertion that he was only given forty-eight hours to decide
whether to accept the plea agreement, defendant highlights the plea court's
comment during the plea hearing that it had "postponed the case for a couple of
days to give [defendant] an opportunity to speak to his family and consult with


                                                                            A-3640-16T1
                                         7
examine the viability of potential defenses[,]" discuss them with him, and file

pre-trial motions. According to the court, during the plea colloquy, "defendant

stated under oath" that he "had the opportunity to go over all police and

investigation reports with prior counsel[,]" that he "discussed all of his potential

defenses with prior counsel[,]" that "prior counsel answered all of his questions

about the case[,]" and that "he was satisfied with prior counsel's services."

      Further, in light of the fact that defendant entered the guilty pleas more

than two-and-one-half years after he was initially charged with the crimes, the

court observed that there were "multiple discussions" about the plea and

defendant "was accommodated" in "mak[ing] his decision." Additionally, the

court noted that "[a]lthough the plea-bargain prong is not to be given great

weight," nonetheless "the plea bargain . . . was extremely fair in light of the

serious nature of the crimes" and "the maximum exposure defendant face[d] if

convicted on more than one count." Lastly, the court did not explicitly find that

withdrawal would result in unfair prejudice to the State. This appeal followed.




[c]ounsel" in connection with plea negotiations. Like the motion court, we do
not interpret the comment to indicate that defendant was only given forty-eight
hours to make a decision in light of the fact that defendant was arrested and
charged with the crimes on October 23, 2013, indicted on April 30, 2015 , and
pled guilty on May 20, 2016.


                                                                            A-3640-16T1
                                         8
      On appeal, defendant renews his argument that the factual basis did not

establish that he "acted purposely or knowingly to kill [the victim]" but instead

was "reflective of reckless conduct." When a defendant challenges the factual

basis for a guilty plea, our review is de novo. State v. Tate, 220 N.J. 393, 403-

04 (2015). That is so because "[a]n 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." Id. at 404.

      Trial courts may not accept a guilty plea unless there is a factual basis

supporting it. R. 3:9-2. "Indeed, 'it is essential to elicit from the defendant a

comprehensive factual basis, addressing each element of a given offense in

substantial detail.'" State v. Perez, 220 N.J. 423, 432 (2015) (quoting Campfield,

213 N.J. at 236). Thus, trial courts "must be satisfied from the lips of the

defendant . . . that he committed every element of the crime charged[.]" Id. at

432-33 (citations and internal quotation marks omitted).

      The factual foundation for the plea "may take one of two forms[:]

defendant may either explicitly admit guilt with respect to the elements or may

'acknowledge[] . . . facts constituting the essential elements of the crime.'"

Campfield, 213 N.J. at 231 (second and third alterations in original) (quoting

State v. Sainz, 107 N.J. 283, 293 (1987)). However, the trial court's inquiry


                                                                          A-3640-16T1
                                        9
need not follow a "prescribed or artificial ritual[,]" and the defendant's

admissions should be examined in light of all surrounding circumstances in the

context of an entire plea colloquy. Id. at 231-32 (citation omitted).

      In fact, trial courts may "consider at the plea hearing stipulations and facts

admitted or adopted by the defendant when assessing the adequacy of a

defendant's factual basis." State v. Gregory, 220 N.J. 413, 420 (2015).

            Receiving a factual statement directly from a defendant
            or obtaining a defendant's acceptance of the veracity of
            facts in a written statement or report that addresses each
            element of the charged offense reduces the possibility
            that a defendant will enter a guilty plea to an offense
            that he has not committed.

            [Perez, 220 N.J. at 433.]

      A defendant has acted with the requisite state of mind for purposeful or

knowing murder when, with respect to causing death or serious bodily injury

resulting in death, the defendant's "conscious object" is to cause such a result,

N.J.S.A. 2C:2-2(b)(1), or the defendant is aware "that it is practically certain

that his conduct will cause such a result." N.J.S.A. 2C:2-2(b)(2). In State v.

Simon, 161 N.J. 416, 449 (1999), the defendant fired two shots within six feet

of the victim's upper body, causing the victim's death. The defendant argued

that his guilty plea could not sustain a conviction for purposeful or knowing

murder because he only intended "to get the officer away from him" to avoid

                                                                            A-3640-16T1
                                        10
returning to prison and was "unaware" that his conduct was "'practically certain'

to cause death or serious bodily injury that results in death." Ibid.

      The Simon Court rejected the defendant's argument and found the factual

basis adequate. According to the Court:

            In addition to 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,
            especially where no other plausible explanation is
            given.     Although defendant claims he did not
            specifically aim his gun at [the victim's] upper body
            region, he admits that he intended the bullet to hit the
            victim and that his purpose in shooting [the victim] was
            to cause serious bodily injury if not to kill him.
            Moreover, the circumstances under which defendant
            shot the victim - at close range, two shots, not one, to
            the upper body region - manifested an indifference to
            whether the victim was killed instantly or eventually
            died from the infliction of serious bodily injury.
            Therefore, defendant's plea established that he had the
            requisite mens rea for purposeful or knowing murder
            pursuant to N.J.S.A. 2C:11-3a(1) and (2) . . . .

            [Id. at 450.]

      Here, defendant answered affirmatively to the questions posed by his

attorney, the prosecutor, and the court. He admitted choking the victim until

she stopped breathing. He also admitted to the detectives during questioning

that he knew that by choking the victim, he was killing her, but it was his only


                                                                         A-3640-16T1
                                       11
option to avoid apprehension.      We are satisfied that defendant sufficiently

acknowledged facts that constituted the essential elements of murder. Common

sense and defendant's own words inform us that when defendant intentionally

choked the victim until she stopped breathing, it was practically certain that his

conduct would cause serious bodily injury that resulted in death or actually

cause death. Therefore, we conclude defendant's guilty plea was accompanied

by a sufficient factual basis, as required by Rule 3:9-2.

      Next, defendant argues the court abused its discretion "in its review of the

factors enumerated in Slater, with particular consideration of the fact that this

motion was made prior to sentencing[.]" (Emphasis omitted). We will not

disturb a "trial court's denial of defendant's request to withdraw his guilty plea"

unless "there was an abuse of discretion which renders the lower court's decision

clearly erroneous," Simon, 161 N.J. at 444 (citing State v. Smullen, 118 N.J.

408, 416 (1990)), or the trial court exercised a "clear error of judgment[.]" State

v. Munroe, 210 N.J. 429, 448 (2012) (quoting State v. Koedatich, 112 N.J. 225,

313 (1988)).    We review a trial court's Slater analysis under an abuse of

discretion standard "because the trial court is making qualitative assessments

about the nature of a defendant's reasons for moving to withdraw his plea and




                                                                           A-3640-16T1
                                       12
the strength of his case and because the court is sometimes making credibility

determinations about witness testimony." Tate, 220 N.J. at 404.

      "The withdrawal of a guilty plea is not an absolute right[,]" Simon, 161

N.J. at 444, (quotation omitted), and the defendant bears the burden of

establishing a basis for relief. Slater, 198 N.J. at 156. "[F]indings made by the

trial court when accepting the plea, constitute a 'formidable barrier' which

defendant must overcome before he will be allowed to withdraw his plea. "

Simon, 161 N.J. at 444 (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

"That is so because '[s]olemn declarations in open court carry a strong

presumption of verity.'" Ibid. (alteration in original) (quoting Blackledge, 431

U.S. at 74). Additionally, whether a defendant seeks to withdraw a plea before

or after sentencing, "[t]iming matters." Slater, 198 N.J. at 160. Thus, at or

before sentencing, a "defendant shall be permitted to withdraw" a guilty plea if

"the interests of justice would not be served by effectuating the [plea]

agreement[,]" R. 3:9-3(e), and, in such cases, "courts are to exercise their

discretion liberally to allow plea withdrawals." Slater, 198 N.J. at 156.

      "No single Slater factor is dispositive; 'if one is missing, that does not

automatically disqualify or dictate relief.'" State v. McDonald, 211 N.J. 4, 16-

17 (2012) (quoting Slater, 198 N.J. at 162). With respect to the first factor, "[a]


                                                                            A-3640-16T1
                                       13
bare assertion of innocence is insufficient to justify withdrawal of a plea."

Slater, 198 N.J. at 158. Instead, a defendant must "present specific, credible

facts and, where possible, point to facts in the record that buttress [his or her]

claim." Ibid. Indeed, there must be more than just a "change of heart" to warrant

leave to withdraw a guilty plea once entered. Id. at 157. The second Slater

factor, "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." Id. at 159. Although we are not to

approach the reasons for withdrawal with "skepticism," we "must act with 'great

care and realism' because defendants often have little to lose in challenging a

guilty plea." Id. at 160 (citing State v. Taylor, 80 N.J. 353, 365 (1979)).

      With respect to the third Slater factor, the Court noted that "defendants

have a heavier burden in seeking to withdraw pleas entered as part of a plea

bargain." Ibid. However, the Court did "not suggest that this factor be given

great weight in the balancing process." Id. at 161. As to the fourth factor, the

Court stated that there was "no fixed formula to analyze the degree of unfair

prejudice or advantage that should override withdrawal of a plea" and that

"courts must examine this factor by looking closely at the particulars of each




                                                                          A-3640-16T1
                                       14
case." Ibid. Nonetheless, the State need not show prejudice "if a defendant fails

to offer proof of other factors in support of the withdrawal of a plea." Id. at 162.

      In Lipa, defendant presented a certification asserting that he was innocent

because he was physically unable to climb into the victim's bedroom window to

commit a sexual assault, having recently undergone knee surgery. 219 N.J. at

333. The defendant also submitted photographs of his knee after the surgery

and the exterior of the building in question. Ibid. The Court concluded that

these specific facts "provided more than a 'bald assertion'" and were sufficient

to satisfy the first prong of the Slater analysis. Id. at 334.

      By contrast, the proofs submitted by defendant here fall short of the

factual showing deemed sufficient in Lipa to establish a colorable claim of

innocence. To support the motion, instead of submitting a certification with

specific, credible facts, defense counsel simply made blanket assertions

regarding defendant's substance abuse, mental health, and volatile relationship

with the victim, and speculated about potential defenses to explore. Thus, in the

absence of any countervailing evidence, the motion court correctly found that

defendant's acknowledgements during the plea colloquy while under oath belied




                                                                            A-3640-16T1
                                        15
any claim of innocence. 3 The court also correctly rejected defendant's claimed

reasons for withdrawing his guilty plea, finding them unsupported by the record.

      As to the third factor, the court found defendant had negotiated a very

favorable plea agreement, given his exposure, and we agree that this factor

favored denial of the motion. See State v. Means, 191 N.J. 610, 619 (2007)

(emphasizing that negotiated pleas are entitled to a high degree of finality and

reiterating that a defendant carries a heavier burden to succeed in withdrawing

a plea entered pursuant to a plea bargain). Finally, although the court did not

find prejudice to the State, because defendant failed to establish the first three

Slater factors, demonstration of prejudice to the State was not required. 198

N.J. at 162. Because the balancing of the Slater factors disfavors allowing

withdrawal of defendant's guilty plea notwithstanding the timing of his motion,

we conclude that the court did not abuse its discretion in denying the motion.

      Defendant argues in his final point that the court erred in sentencing him

by "double-counting aggravating factor one[.]" Before sentencing defendant,

the court reviewed the presentence report as well as the submissions of the

parties, including the postmortem report and text messages defendant sent to the


3
    There is no supporting certification in the record asserting defendant's
innocence or contradicting defendant's admissions during the plea colloquy, and
the court did not refer to one in adjudicating the motion.
                                                                          A-3640-16T1
                                       16
victim "replete with negative" and "disturbing" references. On the murder

charge, the court found aggravating factors one (nature and circumstances of the

offense, including whether it was committed in an especially heinous, cruel, or

depraved manner), N.J.S.A. 2C:44-1(a)(1); three (risk to reoffend), N.J.S.A.

2C:44-1(a)(3); and nine (need to deter), N.J.S.A. 2C:44-1(a)(9). The court

found no mitigating factors. Acknowledging that aggravating factor one is often

"considered to be double counting[,]" the court found it appropriate for

consideration in this case because "strangulation" does not result in "instant"

death but is instead "a painful and violent process."

      Our review of the record reveals that the court's finding of aggravating

factor one was appropriate, and did not constitute impermissible double-

counting of an element of the charged crime. See State v. Fuentes, 217 N.J. 57,

74-75 (2014) (noting that "[i]n appropriate cases, a sentencing court may justify

the application of aggravating factor one, without double-counting, by reference

to the extraordinary brutality involved in an offense"). Further, based on our

deferential standard of review and the presumed reasonableness of a bargained

sentence, id. at 70-71, we are satisfied that the court followed the sentencing

guidelines, and imposed a sentence that does not "shock the judicial conscience"

in light of the facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).


                                                                          A-3640-16T1
                                       17
Affirmed.




                 A-3640-16T1
            18
