Before Judges Stern and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 8, 1999 *fn1
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Defendant, Ronald E. Staten, appeals that portion of his sentence requiring him to serve eighty-five percent of the base term based upon a conclusion that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applies to the offense to which he entered a plea of guilty. We affirm.
Middlesex County Indictment No. 98-9-1210 charged defendant with first-degree attempted murder, N.J.S.A. 2C:11-3(a)(1) (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four).
Pursuant to a plea agreement, defendant entered a guilty plea to second-degree aggravated assault. In exchange for defendant's guilty plea, the State agreed to dismiss the remaining counts of the indictment and to recommend that defendant be sentenced to a seven-year custodial term. The "plea form", which was signed by defendant, his attorney, and the assistant prosecutor, provided that the State would argue that NERA applied, and further provided that if NERA applied, defendant would serve at least 71.4 months prior to release. During the plea colloquy, the judge expressed her understanding to defendant that defendant's attorney would argue at sentence that NERA did not apply. However, the judge further advised defendant that, in her opinion, the sentencing judge probably would conclude that NERA applied. The factual basis for the plea was supplied by defendant in response to several leading questions from his attorney. Defendant said that he was involved in a fight with the victim and "beat him up", breaking his nose. As the victim fell to the ground, defendant said someone else hit the victim with a baseball bat. At that point, the following colloquy ensued:
Defense Counsel: And you did nothing while that happened?
Defense Counsel: You didn't call the police or help him?
Defendant: No, I just walked away.
Defense Counsel: So you didn't hurt Mr. Rodriguez?
Defense Counsel: But you know you hurt Mr. Rodriguez. You don't contest that you caused serious bodily injury on Mr. Rodriguez by breaking his nose and put him in that situation with the bat.
The prosecutor was not satisfied that defendant acknowledged causing serious bodily injury. A further discussion ensued but defendant maintained that someone else hit the victim with the bat. Finally, the prosecutor stated "[i]f counsel will stipulate on the record that that satisfies the serious bodily injury requirement, I'll accept this factual basis. Otherwise I won't because it's not consistent with the discovery in my case. I have a witness, I have a witness who said that this defendant struck the victim with the baseball bat." ...