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Attempted Assault Plea Reversed For Lack of Factual Basis

Attempted Assault Plea Reversed For Lack of Factual Basis

Lee Travers pled guilty to second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) and second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)). Travers appealed his convictions and his sentence of 8 years subject to an 85 percent parole disqualifier under the No Early Release Act (NERA)(N.J.S.A. 2C:43-7.2). Police discovered a loaded gun in Travers car after receiving a call that he pointed a gun at his wife in front of their children, threatened to kill her and then pulled the trigger multiple times while Travers was under the influence. Although the gun found in Traver’s car was older and had problems it did fire when examined by the State’s expert and the defense expert never had opportunity to examine the gun as it had been mistakenly destroyed by the State. In State v. Travers, the NJ Appellate Court heard Defendant’s appeal based on his provision of a factual basis which maintained that he did not have the intent to cause serious bodily injury to his wife and merely said what he was told to say in order to enter into the plea. The plea transcript included Travers’ statement “[w]hen she said don’t kill me, I pulled it out and I showed it that it didn’t work and wasn’t real.” After reading the transcript of the factual basis, the NJ Appellate Division did find the factual basis insufficient to establish the specific intent necessary to obtain a conviction for attempted aggravated assault as it was not clear whether Travers believed the gun to be operable at the time of the incident. Pursuant to State v. Sainz, 107 N.J. 283, 293 (1987), a Defendant must set forth sufficient facts constituting the essential elements of the crime. Attempted aggravated assault requires the purposeful attempt to cause serious bodily injury (N.J.S.A. 2C:5-1(a)(1)). The Appellate Division also quoted State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986), “one cannot logically attempt to cause a particular result unless causing that result is one’s ‘conscious object’. The Appellate Division took no position as to Travers’ belief that the gun was operable but only as to the insufficient factual basis when it reversed and remanded the matter. Assault and attempted assault charges are very serious and bear severe consequences. If you are facing assault charges, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, illegal possession of a handgun, possession of a weapon for an unlawful purposed or other serious criminal charges in New Jersey, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

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