On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 99-11-2217.
Before Judges Skillman, Cuff and
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Abdul Mumin was indicted by an Atlantic County Grand Jury and charged with second-degree sexual assault, pursuant to N.J.S.A. 2C:14-2c (count one); fourth-degree criminal sexual contact, pursuant to N.J.S.A. 2C:14-3b (count two); third-degree terroristic threats, pursuant to N.J.S.A. 2C:12-3b (count three); and third-degree criminal restraint, pursuant to N.J.S.A. 2C:13-2 (count four). He entered a guilty plea on August 18, 2000, to count two -- fourth-degree criminal sexual contact. As part of the plea agreement, the State dismissed counts one, three and four of the indictment, and recommended a sentence of 365 days in state prison.
On September 21, 2000, in accordance with the plea recommendation, the court imposed 365 days incarceration. Defendant received credit for the 362 days he had already served. The court also imposed appropriate penalties and assessments.
Fourth-degree criminal sexual contact qualifies as a predicate sexually violent offense for civil commitment pursuant to N.J.S.A. 30:4-27.26(b), a provision of the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Before defendant was released from custody, the New Jersey Attorney General petitioned the court to have defendant civilly committed pursuant to the SVPA. On October 4, 2000, a judge found probable cause to believe that defendant was a sexually violent predator and defendant was committed to, and remains in, the Special Treatment Unit, also referred to as the Northern Regional Unit, located in Kearny, New Jersey.
Based on his involuntary commitment, defendant moved to vacate his sentence and retract his guilty plea. On January 5, 2001, the court denied his motion. It is from this decision that defendant has appealed. He raises the following arguments:
THE DEFENDANT SHOULD BE ALLOWED TO WITHDRAW HIS GUILTY PLEA TO FOURTH DEGREE CRIMINAL SEXUAL CONTACT BECAUSE THE TRIAL COURT FAILED TO ADVISE HIM THAT HIS PLEA IN THIS CASE WAS LIKELY TO RESULT IN AN INDETERMINATE TERM OF CONFINEMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT.
BECAUSE THE DEFENDANT'S ATTORNEY FAILED TO ADVISE HIM THAT HIS PLEA WOULD SUBJECT HIM TO THE SEXUALLY VIOLENT PREDATOR ACT, HE WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT. (Not Raised Below).*fn1
We have reviewed the record in light of defendant's contentions and the applicable law. We reject defendant's arguments and affirm. We reject his ineffective assistance of counsel claim without prejudice to his right to pursue a post conviction relief petition.
The charges against defendant arose out of an incident which took place on August 15, 1999. Defendant's version of the facts differs somewhat from the victim's version. According to the presentence report, defendant said he was outside of the Stern Light Inn in Folsom when he observed a woman get into an automobile accident in the parking lot. The woman approached defendant and asked for a ride home. Defendant agreed to take her home, but he first went back into the bar to have another drink; when he returned to his car the woman had gone. Defendant then went to a local convenience store to buy cigarettes where he saw the woman and offered to drive her home. According to defendant, the woman offered to give defendant money for gas but defendant said"no, I can suggest you hit me off." After the victim told him she was married, defendant replied"how about you jerk me off"; he pulled down his sweat pants and exposed himself. Defendant told the police that the woman started"jerking him off" and then placed her mouth on his penis. Defendant reported to the police that he never forced the woman to give him oral sex.
According to the victim, who was intoxicated when first questioned by the police, after she voluntarily got into the car with defendant, he told her that she owed him something and that she had to"suck his dick." The victim stated that she was afraid and felt that if she"didn't do it he would hurt or even kill" her.
At the plea hearing, defendant admitted to an act of sexual contact. He responded"yes" to the following question by the judge:
Q: With regard to... count two... it alleges that on or about the 15th day of August 1999, in the Township of Buena Vista, you did commit an act of sexual contact with a [P.S.], and you used physical force or coercion for the purpose of sexually arousing or sexually gratifying yourself or to degrade or humiliate her. Is that true?
The following colloquy then took place among defendant, his attorney and the court:
[Defense counsel] At the time you came in contact with her was she intoxicated?
[Defense counsel] Did you and her somehow get involved in -- you were going ...