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State v. Kane

November 30, 2000

STATE OF NEW JERSEY,
PLAINTIFF-RESPONDENT,
V.
PATRICK KANE,
DEFENDANT-APPELLANT.



Before Judges Baime and Carchman.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 15, 2000

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

Defendant pled guilty to second degree aggravated assault (N.J.S.A. 2C:12-1b(1)). Following a hearing, the Law Division found that the victim sustained serious bodily injury and, thus, the No Early Release Act (NERA) was applicable. Defendant was sentenced to six years imprisonment, eighty-five percent of which is to be served without parole eligibility.

On appeal, defendant argues: (1) his plea of guilty was not voluntary and was not supported by an adequate factual basis, (2) the victim did not suffer serious bodily injury, and (3) the Law Division failed to apply the "proof beyond a reasonable doubt" standard in determining whether the statutory requisites were met. We are satisfied that defendant's plea of guilty was properly entered. We, nevertheless, vacate the sentence imposed.

I.

Defendant had two children with Nicole Gigliotti. At some point, however, their relationship soured. A domestic violence order was entered barring defendant from having any contact with Nicole. On October 3, 1997, defendant visited his two children at Nicole's residence. Nicole was not present. The two children were being supervised by Pasquale Rissi and Elissa Gigliotti, Nicole's sister.

Defendant became embroiled in an argument with Rissi. When Elissa attempted to intervene, defendant struck her in the face. The nature and extent of defendant's attack is in dispute. In any event, the police arrived and transported Elissa to the hospital. A CAT scan and a series of x-rays disclosed no fracture or other abnormality. Elissa received six stitches over her left eye and was released the same day.

Approximately one month later, Elissa's family doctor referred her to a radiologist. The x-ray report stated:

Nasal Bones: There is a transverse fracture of the mid portion of the nasal bones with slight depression of the distal fragment. There also may be a longitudinal fracture present. The inferior nasal spine is intact. The maxillary sinuses are clear.

Conclusion: Transverse and longitudinal nasal fractures.

The record is silent respecting whether Elissa received any treatment for the fracture.

Defendant pled guilty to aggravated assault. In response to questioning, he admitted that he "attempted to cause [Elissa] serious bodily injury or hurt . . . ." Defendant also conceded that Elissa sustained a nasal fracture. The prosecutor and defense counsel agreed that a ...


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