STATE OF NEW JERSEY v. NICKOLAS AGATHIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4939-05T14939-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICKOLAS AGATHIS,

Defendant-Appellant.

______________________________

 

Submitted May 15, 2007 - Decided June 1, 2007

Before Judges Coburn and Gilroy.

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

Evan F. Nappen, attorney for appellant (Louis P. Nappen, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Jessica Kahn, Assistant Prosecutor, on the brief).

PER CURIAM

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 purpose?

Defendant: Yes.

We are satisfied that defendant, an attorney and former municipal prosecutor, provided an adequate factual basis for the plea. "Not much is required to show bodily injury." N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997). See State v. Downey, 242 N.J. Super. 367, 371 (Law Div. 1988) (holding that a purposeful and knowing slap causing a stinging sensation to the victim established the disorderly persons' offense of simple assault). See also, New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995) ("even the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey law."). Defendant's argument that the trial judge was required to elicit the exact nature of the physical pain, illness, or impairment suffered by the victim is unpersuasive.

Defendant argues that the conviction of plea should be vacated because the trial judge misled him as to the consequences of the plea. Defendant contends that the judge misled him into believing that he would be able to obtain a new firearms identification card upon the completion of his one year probation. Defendant asserts that he should have been informed that by pleading guilty to an act of domestic violence, he would be ineligible to obtain a new firearms identification card in the future. N.J.S.A. 2C:58-3c(1). Although defendant was informed by the judge that he was required to forfeit his firearms identification card along with the weapons, the State concedes that he was not specifically informed that by pleading guilty he would be ineligible to obtain a new firearms identification card in the future. The State counters, however, that the trial judge's failure to so inform defendant does not require the vacation of the conviction because defendant's future ineligibility for obtainment of a firearms identification card is a collateral consequence of the plea. We agree. State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986), aff'd, o.b., 107 N.J. 603 (1987).

Lastly, we address defendant's argument that the trial judge erred in directing that defendant forfeit the firearms and other weapons seized at the time of his arrest. Defendant contends he was never informed he was entitled to a separate forfeiture hearing; he never knowingly waived his right to such a hearing; and a forfeiture hearing was never provided. Defendant requests that we remand this matter to the trial court to conduct a weapons forfeiture hearing pursuant to N.J.S.A. 2C:25-21d(3). The State argues that the statute does not prohibit the State from conditioning a plea agreement upon a weapons forfeiture. The State contends that defendant knowingly and voluntarily agreed to forfeit all weapons in exchange for the plea agreement.

N.J.S.A. 2C:25-21d(1)(b) authorizes the State to seize any weapon that the investigating police officer "reasonably believes would expose the victim to risk of serious bodily injury." N.J.S.A. 2C:25-21d(3) permits the prosecutor to petition the Family Part for forfeiture of seized weapons within forty-five days of seizure. Because the reasons were not illegally acquired or used in any crime, they are not considered prima facie contraband, and as such, the statute does not authorize the prosecutor to retain the weapons seized without filing a petition of forfeiture. To the contrary, "[w]ith prima facie contraband, the State may retain the property until the conclusion of the criminal proceeding, after which the property shall be forfeited, 'subject to the rights of owners and others holding interests pursuant to [N.J.S.A.] 2C:64-5.'" State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998) (citing N.J.S.A. 2C:64-2).

Non-contraband weapons are to be returned to the owner following a forfeiture hearing where no criminal or domestic violence charges remain against the owner, no domestic violence situation exists, and there is no indication that the owner poses a threat to the public. In the Matter of the Return of Weapons of J.W.D., 149 N.J. 108, 116 (1997); N.J.S.A. 2C:25-21d(3). If, following a hearing, a court finds that the weapons should not be returned to the owner, the court must determine how to dispose of the weapons. N.J.S.A. 2C:25-21d(3)(c) ("When the court orders the weapons forfeited to the State or the prosecutor is required to dispose of the weapons, the prosecutor shall dispose of the property as provided in N.J.S.[A.] 2C:64-6."). If the State fails to comply with the terms of the forfeiture statute, the owner may file a replevin action against the State. N.J.S.A. 2C:25-21d(4).

Although the statute provides a legislative scheme for the forfeiture of non-contraband weapons seized in furtherance of the prevention of domestic violence, we do not interpret the Act as providing the exclusive method of forfeiture. A forfeiture action is conducted as an in rem civil proceeding. State v. 1979 Pontiac Trans Am, Color Grey, 98 N.J. 474, 480 (1985). "In New Jersey, forfeiture never existed at common law." State v. One 1990 Honda Accord, supra, 154 N.J. at 378. Accordingly, "its existence depends on the enactment of a statute." Ibid. However, "[a]lthough forfeiture depends on a statute for its existence, it remains subject to common law principles." Id. at 379. Accordingly, we are satisfied that an owner of property charged in a criminal proceeding, after receiving notice and an opportunity to be heard, may voluntarily surrender his or her rights to weapons seized in furtherance of protection against domestic violence in exchange for, and as a condition of, a plea bargain to the criminal charge. Forfeiture of one's rights to property is a collateral consequence to the plea agreement and does not affect the plea. Heitzman, supra, 209 N.J. Super. at 662. Here, a petition of forfeiture was filed on behalf of the State by the police when the weapons were seized, placing defendant on notice of possible forfeiture. As part of the plea agreement negotiation, defendant discussed the forfeiture with the State and voluntarily and knowingly agreed to forfeit the weapons in exchange to his entering a plea to a lesser charge. Defendant never objected to the forfeiture, although he had ample opportunity to do so. We determine no violation of defendant's due process rights.

 
Affirmed.

(continued)

(continued)

8

A-4939-05T1

June 1, 2007