concurring.
Defendant argues that his plea to employing a juvenile in a drug distribution scheme must be vacated. He also contends that the concurrent sentences imposed on the other offenses to which he pled guilty must stand and that the charges dismissed incident to the negotiated disposition may not be resurrected. I do not *72believe that defendant would be entitled to the relief he seeks even in the absence of a factual basis for his plea.
As the majority points out, defendant was indicted for murder, distribution of cocaine to a minor, and endangering the welfare of a child in one indictment, and was charged with possession of heroin on a separate day in another. Following plea discussions, defendant entered into a negotiated disposition with the prosecutor. As a result defendant pled guilty to the accusation charging him with employment of a juvenile in a drug distribution scheme and to aggravated manslaughter as a lesser offense to murder and to possession of heroin, as charged in the indictments. Under the negotiated disposition, the remaining charges were to be dismissed. The State further recommended that the sentence on the heroin charge be made concurrent with the other terms and that defendant receive a maximum custodial sentence of forty years with twenty years before parole eligibility on the other offenses. In other words, defendant entered into a negotiated disposition which considerably reduced his sentence exposure. He was sentenced in accordance with the negotiated disposition.
If defendant prevails on his claim of an inadequate factual basis, it seems to me in these circumstances that the plea must be rejected and all charges resurrected. See State v. Barboza, 115 N.J. 415, 420, 558 A.2d 1303 (1989); State v. Rhein, 117 N.J.Super. 112, 283 A.2d 759 (App.Div.1971). It is true (as defendant argues) that in State v. Lightner, 99 N.J. 313, 491 A.2d 1273 (1985), the Supreme Court held — based on “the singular facts of the case,” 99 N.J. at 316, 491 A.2d 1273 — that the State could not resurrect charges dismissed as part of a negotiated plea when there was an inadequate factual basis to sustain one of the two counts to which defendant pled guilty and defendant had fully executed the sentence imposed on the other. In that case the Supreme Court held that under the circumstances this court correctly determined that defendant’s motion to withdraw the guilty plea to the offense should have been granted and remanded to permit vacation of the guilty plea. 99 N.J. at 316-17, 491 A.2d *731273. However, the Supreme Court did not hold that defendant could not be tried for the offense on which the plea was being vacated, as would be the consequence here.
In Barboza, where there was no factual basis for the plea to aggravated manslaughter as a lesser offense to murder, defendant originally argued that she was entitled to withdraw her plea and later asserted that she had the right to have it downgraded on appellate review to an offense she had admitted on the record. The Supreme Court concluded “that if an appellate court subsequently determines that a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated, and defendant allowed to re-plead or to proceed to trial.” 115 N.J. at 420, 558 A.2d 1303. Citing Lightner, supra, the Barboza Court stated that “[m]ost New Jersey appellate courts, finding an insufficient factual basis to support a guilty plea, have simply vacated the conviction and allowed withdrawal of the guilty plea without any further discussion.” Id. at 424, 558 A.2d 1303. The Court concluded that “[b]ecause there is an insufficient factual basis to support defendant’s plea of aggravated manslaughter defendant may replead. Her conviction and sentence are vacated and the dismissed counts reinstated.” Id. at 427, 558 A.2d 1303.
It is true that Barboza involved a one count indictment, or the plea to only one charge, and does not concern the resurrection of other charges, but its language is clear. In the context of a murder prosecution where the negotiated disposition was structured in such a way as to achieve a “real time” consequence (eliminating exposure to the thirty real years of parole ineligibility related to a murder conviction, see N.J.S.A. 2C:ll-3b), all charges must be resurrected upon the withdrawal of the plea.
This case is not one involving a traditional claim of an insufficient factual basis for the plea. Defendant in essence claims he cannot be found guilty of the offense as alleged. Such a claim is traditionally addressed on a motion to dismiss the indictment. *74But here defendant waived indictment and trial by jury and pled guilty to an accusation filed as part of the negotiated disposition.
Moreover, defendant has attacked the factual basis of his plea to the “employing a juvenile” charge without moving to withdraw his plea or seeking relief in the trial court. But see e.g., R. 3:21-1; State v. Smullen, 118 N.J. 408, 416-17, 571 A.2d 1305 (1990). And his appellate argument is premised on the belief that no dismissed charges could be resurrected and “the remaining sentences imposed cannot be disturbed without violation of the double jeopardy clauses of the Fifth Amendment [and] New Jersey Constitution.” The absence of any motion in the trial court is of significance to me because the record does not suggest that defendant would be entitled to the relief he seeks even if he was permitted to withdraw his plea.1 Rather, the record reflects that defendant entered a negotiated disposition, which took into account his intoxication and diminished capacity “defenses” and the “difficulty of proving” the distribution charge as alleged in the indictment (which defendant had unsuccessfully moved to dismiss), in exchange for a maximum sentence recommendation including a consecutive term for the offense defendant now seeks to have dismissed. He could have reasonably expected nothing less than the sentence imposed.
I do not believe a defendant can enter into a negotiated disposition to avoid a murder prosecution, advise the prosecutor of his “use” of a child in a drug distribution scheme as part of the disposition, enter pleas including that offense to reduce his criminal exposure, and then be able to withdraw one of the pleas on which the entire disposition was premised without resurrecting all *75charges against him. As I understand defendant’s argument, that is what he asks this court to permit, and I would reject that request.
I therefore concur in the judgment of the court.
It is arguable that, given his argument on this appeal, defendant had no expectation of finality in the concurrent sentences imposed and that he can, therefore, be resentenced on the surviving convictions. See State v. Haliski, 140 N.J. 1, 656 A.2d 1246 (1995). See also State v. Rodriguez, 97 N.J. 263, 478 A.2d 408 (1984). But given the maximum sentence imposed on the aggravated manslaughter and the third degree heroin conviction, the same aggregate sentence could not be achieved.