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State v. Agathis

June 1, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NICKOLAS AGATHIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 2006-000064-2017.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 15, 2007

Before Judges Coburn and Gilroy.

On February 14, 2006, defendant was arrested for committing an act of domestic violence against his wife. Pursuant to N.J.S.A. 2C:25-21d, the Springfield Police searched the marital home and seized thirteen firearms, various ammunition, approximately eighteen knives, a knife sharpener, and some marshal arts equipment. After defendant's arrest, he was charged with aggravated assault, N.J.S.A. 2C:12-1b(7), and possession of hollow-point ammunition, N.J.S.A. 2C:39-3f(1). On April 13, 2006, prior to indictment and pursuant to a plea agreement, defendant pled guilty to one count of simple assault, N.J.S.A. 2C:12-1a, a disorderly person's offense. Defendant was sentenced the same day to one-year probation and to a forfeiture of all weapons seized as well as his firearms identification card. Defendant appeals, and we affirm.

On appeal, defendant argues that the plea should be vacated because: 1) the trial judge failed to establish a factual basis for the plea; 2) the judge misled him as to the consequences of his plea by informing him that he would be able to obtain a new firearms identification card after he completed probation; 3) the judge failed to inform him of the maximum penalties; 4) the judge failed to inform him of his rights; and 5) he never explicitly waived his right to trial. Defendant also argues that the State failed to provide him with a forfeiture hearing, and that he was not provided with the proceeds from the sale of the seized property.

After considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Defendant contends that his conviction and plea should be vacated because the trial judge failed to establish a factual basis for the plea. We disagree.

Prior to the acceptance of a plea of guilty, the trial judge must be satisfied that "'there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.'" State v. Smullen, 118 N.J. 408, 415 (1990) (quoting R. 3:9-2.). A defendant who pleads guilty to a criminal offense pursuant to a negotiated plea bargain does not waive his or her right on appeal to raise as reversible error the absence of a factual basis for the plea. State v. Butler, 89 N.J. 220, 224 (1982).

The charge to which defendant pled guilty is the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a. A person is guilty of simple assault if the person "[a]ttempts to cause, or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1a(1). Bodily injury is defined in N.J.S.A. 2C:11-1a as meaning "physical pain, illness, or impairment of physical condition." Before the court accepted defendant's plea, the following colloquy occurred between defendant and his counsel:

Counsel: Real simple question, Mr. Agathis. On February 14, did you strike your wife, Maria, thereby causing her injury?

Defendant: Yes I did.

Counsel: Did you do it on ...


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