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State v. Smith

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 me in a headlock.

Q: So it sounds like there was some kind of a scuffle going on.

A: Yeah. It was like -- it was -- it was me, him and three other people involved. I was being jumped, you know what I mean? The commission of me being jumped and sliding out of my jacket and my shirt to get out of his headlock, that's -- I snatched the knife and cut him with it from somebody else about to cut me with the knife.

Defendant further admitted that when he armed himself with the razor or box cutter, he was the only one possessing a deadly weapon and that at the time no one else was assaulting him with any such weapon. Moreover, defendant viewed photographs of the victim's wounds, which, although not admitted in evidence, were described by defense counsel as depicting "particularly serious wounds." In fact, during the plea hearing, defense counsel, in the presence of defendant, represented that defendant's conduct resulted in serious injury to the victim. Indeed, defendant's subsequent pre-sentence report describes a fourteen centimeter and a nine centimeter laceration to the right side of the victim's face, and a four centimeter laceration through the right ear, causing part of the victim's ear to be hanging off. And finally, at the plea hearing, defendant acknowledged that he "slashed" his victim.

Despite the thoroughness of the plea colloquy, defendant nevertheless argues the factual basis proffered falls short of establishing the serious bodily injury element of second-degree aggravated assault. We disagree.

Under N.J.S.A. 2C:12-1(b)(1), a person is guilty of aggravated assault if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." "Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b). Thus, a person is guilty of aggravated assault if he actually makes an attempt to cause, or does cause, by any means, serious bodily injury. See State v. Graham, 223 N.J. Super. 571, 577 (App. Div.), certif. denied, 113 N.J. 323 (1988). Where, however, the charge is bottomed in an attempt to cause a serious injury, the proper focus is on the actor's intent, not on the nature of the injury. State v. Mingo, 263 N.J. Super. 296, 305-306 (App. Div. 1992) (D'Annunzio, J.A.D., dissenting), rev'd, 132 N.J. 75 (1993). Thus, although the injury is not serious, it is possible that the use of a deadly weapon may give rise to an inference that defendant was attempting to cause serious bodily injury. Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:12-1 (2007).

Our review of the record convinces us that defendant's plea establishes an adequate factual basis for the commission of a second-degree aggravated assault in either its inchoate or completed form. Defendant candidly acknowledged at time of plea, as did his attorney, that his conduct actually caused serious bodily injury to his victim, as his pre-sentence report later corroborated and the photographs presumably earlier depicted. But separate and apart from the nature of the injury, defendant's plea colloquy also clearly establishes his attempt to cause serious bodily injury to the victim, as evidenced by arming himself with a deadly weapon and using it purposely to slash him. Accordingly, we find no reason to question the propriety of the entry of defendant's plea.

Lastly, defendant contends the matter should be remanded to amend the judgment of conviction to reflect his true name, Derek S. Thorpe. We find no competent evidence in the record to support this claim. Nevertheless, the State offers no objection to a limited remand to add the nomenclature "A/K/A Derek S. Thorpe" to defendant's indictment and judgment of conviction, and accordingly we so direct.

The judgment of conviction is affirmed.

20090319

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