Opinion
Submitted November 8, 1978 —
Decided November 27, 1978.
Appeal from Superior Court, Law Division.
Before Judges MATTHEWS, KOLE and MILMED.
Messrs. Aaron, Rubin Rossi, attorneys for appellant ( Mr. Steven C. Rubin, of counsel; Mr. Barth F. Aaron, on the brief).
Mr. John J. Degnan, Attorney General, attorney for respondent ( Mr. Frederick S. Cohen, Deputy Attorney General, of counsel and on the brief).
Defendant was indicted and convicted on three counts charging conspiracy with an "undercover agent of the Maryland State Police." Two counts charged conspiracy to commit atrocious assault and battery; one charged conspiracy to commit mayhem. Defendant and the undercover agent were the only individuals named in the indictment.
Following conviction defendant moved before the trial judge seeking (1) merger of the three counts of the indictment; (2) a new trial, or (3) dismissal of the indictment. The trial judge in an opinion reported at 152 N.J. Super. 413, merged the second and third counts of the indictment into the first count but denied all other relief.
We reverse the judgment below insofar as it failed to dismiss the indictment. State v. Mazur, 158 N.J. Super. 89 (App.Div. 197 8), certif. den. ___ N.J. ___ (1978). In view of our disposition, we need not consider the other issues raised since they are mooted by our decision here.