NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1400-15T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUIS A. DIAZ, Defendant-Appellant. ________________________________ Submitted September 25, 2017 – Decided October 18, 2017 Before Judges Sabatino and Whipple. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-04-0589. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM Defendant appeals from a September 22, 2015 judgment of conviction for second-degree conspiracy to commit robbery and second-degree possession of a firearm for an unlawful purpose after entering a guilty plea on May 8, 2014. He argues the presentation of the factual basis to the court at the plea hearing prior to the completion of the waiver of his rights is a fatal defect rendering the plea involuntary. We affirm. At a hearing that began on May 5, 2014, the Assistant Prosecutor moved the plea agreement by representing that plea forms were completed by the parties and defendant was expected to plead guilty to the above-referenced second-degree charges. The Assistant Prosecutor also placed on the record the State's recommended sentence of seven years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and Grave's Act components, N.J.S.A. 2C:43-6, and stated defendant agreed to testify against his co-defendants and his counsel was free to argue for a lesser sentence. Defendant, who was questioned by his counsel to establish a factual basis for the plea, testified under oath that, on December 28, 2012, he and two co-defendants agreed to rob an owner of a pizza shop. One co-defendant drove defendant and the other co- defendant to the individual's home where they encountered the owner, and the co-defendant fired a handgun that was jointly 2 A-1400-15T1 possessed. Defendant and co-defendant ran from the scene and called the other co-defendant for a ride. All three co-defendants were arrested shortly thereafter. For reasons unclear from the record, the court halted the hearing and instructed the parties to return on May 8, 2014 to complete the plea proceeding. On May 8, 2014, the parties returned, and defendant was sworn in again. The Assistant Prosecutor reinitiated the plea, placing the same relevant information on the record as the May 5, 2014 hearing. As previously done, defendant's counsel questioned him under oath to establish a factual basis, and defendant gave consistent testimony about the plan to rob the pizza shop owner and the gun. The Assistant Prosecutor then examined defendant, confirming he was truthful and understood he ...
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