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State v. Smith

March 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEREK P. SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-09-2156.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 25, 2009

Before Judges Axelrad and Parrillo.

Following his guilty plea to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), defendant Derek P. Smith was sentenced, in accordance with his negotiated plea, to a five- year term of imprisonment subject to the 85% parole bar of the No-Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He now appeals, contending his conviction is not supported by an adequate factual basis. We disagree, and affirm.

By way of background, at the plea hearing, defendant, under oath, expressly admitted causing serious bodily injury to Mark Ford and then went on to describe his encounter with the victim:

A: Well, it was an argument at first between me and Mark Ford and he put his hands on me and had me in a headlock, you know what I'm saying? And I'm asthmatic, you know what I mean? I was pleading for him to let me go. So I was under the influence prior to going around there. I threw up twice and I got a drug dependence, but that's a different story. So when -- I had to slide out of my shirt and my -- I had a spring jacket on just for -- to get out of his grasp, you know what I mean? He had me in a headlock. And there's some residents around the place where he worked, they were assaulting me, too.

So as of me getting out of his headlock, regaining conscious [sic], I was about to go to sleep 'cause he's a much bigger man than I am, you know what I'm saying? One of the residents was branding -- brandishing a knife that was going to be used to cut me. So when I seen it in an instant, I grabbed the knife and slashed him with it, you know what I'm saying, as of getting out of his hold. That was just my reaction, you know what I mean? He was in striking distance.

Any one of them, I coulda' did it to any one of them. I wasn't just picking him out of, you know what I mean, just picking on him; any one of them that assaulted me could've got that. He just was in the way and he got it first, you know what I'm saying?

Q: So you used a razor or a knife to do this?

A: Yes. That was going to be used to cut me.

Q: And where did you get this knife from?

A: From one of the residents that was assaulting me while he had ...


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