986 A.
2d 42
411 N.J.Super. 349, 986 A.2d 42
(Cite as: 411 N.J.Super. 349, 986 A.2d 42)
Superior Court of New Jersey,
Appellate Division.
STATE of New Jersey, Plaintiff-Respondent,
v.
Joseph Allen LEE, Defendant-Appellant.
Argued Dec. 16, 2009.
Decided Jan. 19, 2010.
Background: Defendant was convicted upon a plea
in the Superior Court, Law Division, Union County,
to attempted murder, and he was sentenced to 18
years in custody with 85 percent thereof to be served
before parole eligibility under the No Early Release
Act (NERA). Defendant appealed.
Holdings: The Superior Court, Appellate Division,
Stern, P.J.A.D., held that:
(1) factual basis for the plea to attempted murder was
adequate;
(2) sentence imposed for attempted murder was not
excessive; but
(3) attempted murder does not constitute domestic
violence for purposes of the $100 surcharge to which
defendants convicted of an act of domestic violence
are subject.
Affirmed in part, vacated in part, and remanded.
West Headnotes
[1] Criminal Law 110 273(4.1)
110 Criminal Law
110XV Pleas
110k272 Plea of Guilty
110k273 In General
110k273(4) Requisites and Proceedings
for Entry
110k273(4.1) k. In general. Most
Cited Cases
Factual basis for a plea to attempted murder was
adequate, where defendant, in his plea colloquy, ac-
knowledged that he attacked victim so hard with a
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 1
hammer that victim thought that it was imbedded in
her chest and acknowledged that he beat victim about
the head, causing a skull fracture resulting in 15 sta-
ples in her head.
[2] Homicide 203 1567
203 Homicide
203XIV Sentence and Punishment
203k1565 Extent of Punishment in General
203k1567 k. Murder. Most Cited Cases
Pardon and Parole 284 50
284 Pardon and Parole
284II Parole
284k48 Eligibility for Parole or Parole Con-
sideration
284k50 k. Minimum sentence, and compu-
tation of term in general. Most Cited Cases
Sentencing and Punishment 350H 95
350H Sentencing and Punishment
350HI Punishment in General
350HI(E) Factors Related to Offender
350Hk93 Other Offenses, Charges, Mis-
conduct
350Hk95 k. Nature, degree, or serious-
ness of other misconduct. Most Cited Cases
Sentence for attempted murder of 18 years in
custody with 85 percent thereof to be served before
parole eligibility under the No Early Release Act
(NERA) was not excessive, given defendant's crimi-
nal record, which included domestic violence of-
fenses and a prior sentence, and injuries suffered by
victim.
[3] Costs 102 292
102 Costs
102XIV In Criminal Prosecutions
102k292 k. Liabilities of defendant. Most
Cited Cases
986 A.2d 42
411 N.J.Super. 349, 986 A.2d 42
(Cite as: 411 N.J.Super. 349, 986 A.2d 42)
Attempted murder does not constitute domestic
violence for purposes of the $100 surcharge to which
defendants convicted of an act of domestic violence
are subject. N.J.S.A. 2C:25-19a, 2C:25-29.4.
[4] Statutes 361 241(1)
361 Statutes
361VI Construction and Operation
361VI(B) Particular Classes of Statutes
361k241 Penal Statutes
361k241(1) k. In general. Most Cited
Cases
Penal statutes, including those imposing penal-
ties as part of a sentence, are to be strictly construed.
**42 Mark H. Friedman, Assistant Deputy Public
Defender, argued the cause for appellant (Yvonne
Smith Segars, Public Defender, attorney).
Meredith L. Balo, Assistant Prosecutor, argued the
cause for respondent (Theodore J. Romankow, Union
County Prosecutor, attorney).
Before Judges STERN, GRAVES FN1 and LYONS.
FN1. Judge Graves did not participate in
oral argument but, with the consent of the
parties, has been added for the disposition of
the appeal. The matter was argued on the
Sentence Oral Argument calendar.
The opinion of the court was delivered by
**43 STERN, P.J.A.D.
*351 [1] Defendant appeals from a judgment of
conviction and challenges, as excessive, his sentence
of eighteen years in the custody of the Commissioner
of the Department of Corrections, with eighty-five
percent thereof to be served before parole eligibility
under the No Early Release Act (NERA), for at-
tempted murder. In his plea colloquy defendant ac-
knowledged attacking the victim “so hard with the
hammer” that the victim thought it was “imbedded
into her chest.” Defendant acknowledged he beat the
victim “about the head” causing a skull fracture re-
sulting in fifteen staples in her head. The factual basis
for the attempted murder is adequate and under-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
standably not contested. The sentence was made con-
current to a sentence simultaneously imposed on a
violation of probation for possession of CDS.
The State offered a negotiated recommendation
of twenty years for the plea to attempted murder in
exchange for the dismissal of other charges and
waiver by the prosecutor of an application for ex-
tended term sentencing. The judge agreed to permit
defendant to withdraw his plea in the event he de-
cided to impose a sentence above eighteen years,
which the judge thought was appropriate in light of
NERA. See R. 3:9-3(e). These facts were all spelled
out at the plea colloquy.
[2] Given defendant's record, including prior
domestic violence offenses and a prior sentence
committing defendant to the custody of the Depart-
ment of Corrections for eighteen years with the
NERA component for attempted murder, based on
his stabbing a prior girlfriend who declined to marry
him, and the injuries sustained by this victim, the
custodial sentence cannot be deemed excessive. State
v. Natale, 184 N.J. 458, 878 A.2d 724 (2005); State v.
O'Donnell, 117 N.J. 210, 564 A.2d 1202 (1989); State
v. Ghertler, 114 N.J. 383, 555 A.2d 553 (1989); State
v. Roth, 95 N.J. 334, 471 A.2d 370 (1984). See also
State v. Spinks, 66 N.J. 568, 573, 334 A.2d 23 (1975).
*352 [3] Defendant specifically challenges the
imposition of a $100 surcharge for his convictions
based on acts of domestic violence (DV).
N.J.S.A. 2C:25-29.4 provides that “a person con-
victed of an act of domestic violence, as that term is
defined by [N.J.S.A. 2C:25-19a] shall be subject to a
surcharge in the amount of $100 payable to the
Treasurer of the State of New Jersey for use by the
Department of Human Services to fund grants for
domestic violence prevention, training and assess-
ment.” Under N.J.S.A. 2C:25-19a “ ‘domestic vio-
lence’ means the occurrence of one or more of the
[listed offenses] inflicted upon a person protected
under [the Prevention of Domestic Violence Act].”
See N.J.S.A. 2C:25-19d defining “victim of domestic
violence.” We note that there were no questions at
the plea colloquy regarding the relationship between
defendant and the victim, and suggest that establish-
ing that relationship under the Act is a prerequisite to
the imposition of the domestic violence surcharge.
However, defendant contests application of the as-
sessment only because attempted murder is not in-
986 A.2d 42 Page 3
411 N.J.Super. 349, 986 A.2d 42
(Cite as: 411 N.J.Super. 349, 986 A.2d 42)

cluded within N.J.S.A. 2C:25-19a. At the sentencing crime within Chapter 11 of the Code or refer to it for
hearing the prosecutor asked the court to remind de- purposes of the DV surcharge.
fendant of the restraining order.
We are compelled to vacate the DV surcharge.
Defendant correctly states that neither attempts, The Legislature can prospectively take action if it
generally, nor attempted murder, specifically, are desires to do so, as it has done in other areas. See e.g.,
included in N.J.S.A. 2C:25-19a which lists the of- Parolin, supra, 171 N.J. at 232-33, 793 A.2d 638.
fenses which can constitute domestic violence. We
agree, and vacate the assessment. The judgment of conviction, including the fees
and penalties, is affirmed except that the domestic
[4] Penal statutes, including those imposing pen- violence surcharge is vacated, and the matter is re-
alties as part of a sentence, are to be strictly con- manded for entry of a corrected judgment.
strued. State v. Valentin, 105 N.J. 14, 17, 519 A.2d
322 (1987). See **44 also State v. Chapman, 187 N.J.Super.A.D.,2010.
N.J.Super. 474, 455 A.2d 514 (1982) (applying sen- State v. Lee
tencing principles to monetary fees and penalties). As 411 N.J.Super. 349, 986 A.2d 42
a result, the Legislature's decision not to include at-
tempted murder in the list of offenses subject to the END OF DOCUMENT
penalty is dispositive. Cf. State v. Manzie, 335
N.J.Super. 267, 278, 762 A.2d 276 (App.Div.2000),
affirmed by an evenly divided Court, 168 N.J. 113,
773 A.2d 659 (2001) (NERA does not apply to mur-
der). See also *353State v. Parolin, 171 N.J. 223,
232-33, 793 A.2d 638 (2002) (post Manzie legislative
history of NERA).

N.J.S.A. 2C:25-19a(1) lists “homicide” which

includes all offenses relating to the causing of death
or serious bodily injury resulting in death, and cites
“N.J.S.A. 2C:11-1 et. seq.” However, attempted
murder is not a crime in Chapter 11 of the Code. At-
tempts are proscribed by N.J.S.A. 2C:5-1. See also
N.J.S.A. 2C:5-4. Although it is arguable that at-
tempts, or at least attempted murders, were contem-
plated for inclusion within the surcharge by the Leg-
islature because of the seriousness of offenses like
this when compared with others listed in N.J.S.A.
2C:25-19a, the holdings of our courts provide fair
notice that, in this area, express inclusion is neces-
sary, and the Legislature has expressly included at-
tempts for purposes of a sentencing provision when it
desires to do so. See N.J.S.A. 2C:43-7.2d (including
convictions for conspiracy and attempts in NERA);
State v. Staten, 327 N.J.Super. 349, 354-55, 743 A.2d
365 (App.Div.), cert. denied, 164 N.J. 561, 753 A.2d
1153 (2000) (a pre-amendment case holding that
NERA does not apply to attempts). See also Manzie,
supra, 335 N.J.Super. at 278, 762 A.2d 276. Moreo-
ver, the Legislature has provided special grading pro-
visions for attempted murder in N.J.S.A. 2C:5-4a
although it did not make attempted murder a specific

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.