On appeal from the Superior Court, Law Division, Monmouth County. Opinion reported at 196 N.J. Super. 102.
Michels, Deighan and Stern.
[208 NJSuper Page 446] Defendant was charged in Indictment 1776-80 with armed robbery, N.J.S.A. 2C:15-1 (count one); possession of a handgun with the purpose of using it unlawfully against the person of another, N.J.S.A. 2C:39-4 a (count two); possession of a handgun without the requisite permit, N.J.S.A. 2C:39-5 b (count three); aggravated assault, N.J.S.A. 2C:12-1 b(4) (count four), and criminal restraint, N.J.S.A. 2C:13-2 a (count five). Defendant was also charged in Indictment 1320-81 with armed robbery, N.J.S.A. 2C:15-1 (counts one and two), and possession of a handgun with purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4 a (count three). Defendant's motion to dismiss these Indictments and Indictment 1191-81 was unsuccessful. He was subsequently convicted at trial of all counts as charged in Indictment 1776-80 and thereafter entered a guilty plea to count one of Indictment 1320-81.
As part of the negotiated plea, counts two and three of Indictment 1320-81 and all charges embodied in Indictment 1191-81 were dismissed. The State also recommended, as a condition of the plea, that the sentence on count one of Indictment 1320-81 be made concurrent with the sentences to be imposed on 1776-80, and that no motion for extended term would be made with respect to that count.
Defendant was sentenced on count one of Indictment 1776-80 to 40 years in the custody of the Commissioner of Corrections with 20 years to be served before parole eligibility. He received an eight year sentence on count three. Counts two, four and five were merged into count one. Defendant was sentenced to 20 years on count one of Indictment 1320-81 with 10 years to be served before parole eligibility. These sentences were made concurrent with each other but consecutive to the sentences defendant was then serving in New York.
Defendant appeals and argues:
POINT I THE FAILURE TO TRY THE DEFENDANT ACCORDING TO THE PROVISIONS OF THE INTERSTATE AGREEMENT OF DETAINERS ACT (N.J.S.A. 2A:159A-1 et seq.) REQUIRES VACATION OF ALL CHARGES AGAINST THE DEFENDANT.
POINT II THE SENTENCE IMPOSED UPON THE DEFENDANT IS MANIFESTLY EXCESSIVE.
The guilty plea to count one of Indictment 1320-81 constituted a waiver of defendant's assertions under the Interstate Agreement on Detainers insofar as that count is concerned. See e.g., State v. Truglia, 97 N.J. 513, 522-524 (1984); State v. Dively, 92 N.J. 573, 577 (1983); State v. Ternaku, 156 N.J. Super. 30, 35 (App.Div.1978) certif. den. 77 N.J. 479 (1978) (waiver of claim under Interstate Agreement on Detainers); State v. Raymond, 113 N.J. Super. 222, 225-226 (App.Div.1971) (waiver of speedy trial claim); State v. Humphreys, 89 N.J. Super. 322, 326 (App.Div.1965). See also R. 3:9-3(f).
We must address the claims under the Interstate Agreement on Detainers in light of the convictions on Indictment 1776-80. We affirm the denial of defendant's motion to dismiss substantially for the reasons expressed by Judge McGann in his opinion reported at 196 N.J. ...