On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-06-0800.
Before Judges Skillman, Collester and Grall.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2004
The question presented by this appeal is whether defendant's alleged offensive comment to one of the victims of his crimes shortly after the trial judge pronounced sentence provided an adequate basis for the judge to vacate the sentence. We conclude that defendant's alleged comment did not warrant the judge vacating the orally pronounced sentence.
Defendant was indicted on three counts of attempted aggravated sexual assault, in violation of N.J.S.A. 2C:5-1, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:14-2a(3); three counts of attempted sexual assault, in violation of N.J.S.A. 2C:5-1, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:14-2c(1); and three counts of attempted burglary, in violation of N.J.S.A. 2C:5-1, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:18-2.
These charges were based on defendant posing as women in an internet chat room and inviting men to come to these women's homes to play out rape fantasies. Two men with whom defendant pretended to be women went to two victims' homes to engage in this activity, but their attempts to gain access to the victims were thwarted before any actual sexual assaults were committed.
Pursuant to a plea bargain under which the State agreed to recommend imposition of consecutive five-year terms for attempted sexual assaults on each of the two victims, defendant pled guilty to the attempted sexual assault counts of the indictment. The Adult Diagnostic and Treatment Center (ADTC) submitted a report which found that defendant is a repetitive and compulsive sex offender who was eligible for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-1 to 10. Defendant did not contest this finding. The ADTC and presentence reports also indicated that defendant is bipolar.
The trial judge sentenced defendant in conformity with the plea bargain to concurrent five-year terms for two attempted sexual assaults on one victim and a consecutive five-year term for the attempted sexual assault on the other victim, for an aggregate term of ten years. The judge ordered defendant to begin service of this sentence in state prison and to be transferred to the ADTC when five years remain to be served. The court also determined that defendant's convictions are subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, under which defendant must serve 85% of his sentence before he becomes eligible for parole, and Megan's Law, N.J.S.A. 2C:7-1 to -19. The judge dismissed the other counts of the indictment in accordance with the plea agreement.
Shortly after pronouncing this sentence, the trial judge returned to the bench and directed that defendant and defense counsel be brought back to the courtroom. Upon their return, the judge asked the prosecutor to place on the record what he had told the judge in chambers. The prosecutor stated:"It was reported to me that as [defendant] was being led out in handcuffs, he looked at [one of the victims] and called her a fucking bitch." The judge asked defense counsel whether he had any comment, in response to which defense counsel said:"Judge, I wasn't here. I didn't see it. Judge, if, that's what was said, I'm sure that's not what my client meant. And--" At this point, defendant said:"Can I please say something, or am I not allowed to?" The judge responded:"I'll hear from you in a minute." The judge then told defendant that he had a right to remain silent and that anything he said could be used against him.
However, without requiring the prosecutor to present any evidence regarding the alleged incident he had reported to the judge or giving defendant an opportunity to be heard, the judge announced that he was going to vacate defendant's sentence, reinstate the indictment and place the case back on the trial calendar. In explaining this action, the judge stated:
I have determined that I was wrong in assessing the aggravating and mitigating factors. And that I did not give sufficient weight to the aggravating factors that the character and attitude of this defendant are such, and the weight that I assess, that he is likely to commit another offense.
And with the added information that the Court presently has in balancing the aggravating and mitigating factors, this Court is clearly convinced that the aggravating factors significantly and substantially outweigh the mitigating factors. And, therefore, a minimum sentence for a second degree ...