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State v. Dishon

Decided: December 23, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEFFREY DISHON, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Petrella and Dreier. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Defendant appeals from convictions of attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1, and armed robbery, N.J.S.A. 2C:15-1, based upon pleas of guilty to these offenses. The plea agreement provided that defendant would receive sentences running concurrently with a sentence he was already serving on an unrelated charge; the sentence would not exceed 15 years; and no minimum period of parole ineligibility would be imposed by the court. Further, additional charges of fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, third degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d, and third degree theft, N.J.S.A. 2C:20-3a, were to be, and were in fact, dismissed. Defendant was sentenced to concurrent 15-year terms without a period of parole ineligibility.*fn1

R. 3:9-2 mandates that a plea should not be accepted without the court:

first addressing the defendant personally and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea.

Defendant has attacked both the armed robbery and attempted murder convictions claiming that there was an insufficient basis placed upon the record for the acceptance of both pleas. The negotiation of the plea and sentence envisioned that both charges would be disposed of in a single sentence. Yet so long

as defendant receives no greater sentence than that contemplated by the plea agreement, if one of the pleas must be vacated, the other does not necessarily fall. This is especially so, since we are not faced with questions of revival of merged offenses. Cf. State v. Truglia, 97 N.J. 513, 525 (1984).

The incident arose out of an alleged homosexual encounter between defendant and the victim. After the two drove to the beach in the victim's car, defendant struck the victim with a pipe causing injuries which required 200 stitches to close the wound and an operation to reattach a portion of the victim's ear which had been torn from the side of his head. Defendant contended, however, that his recollection of the occurrence was hazy as a result of drugs which he had ingested. He remembered meeting the victim and hitting him with the pipe. Further, in response to the question of whether defendant had taken the victim's car, defendant answered, "yes, I had possession of his car." In answering the prosecutor's questions, however, defendant agreed that he had unclear recollections concerning the extent of the assault which we will review in our discussion of the attempted murder plea.

After the assault had been more fully discussed the judge also inquired about the car. He stated:

Q. After you did this you took his car?

A. Yes, sir.

The judge then established that defendant knew it was the victim's car because the victim had been in it. The prosecutor then asked (but only the second ...


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