On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 00-10-00547.
The opinion of the court was delivered by: Gilroy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2007
Before Judges Coburn, R. B. Coleman and Gilroy.
The question presented is whether a defendant charged with attempted sexual assault may be found guilty under N.J.S.A. 2C:5-1a(1), where the defendant is arrested before completing the act, which would have constituted the underlying crime. We hold that he may not be found guilty under that section of the criminal attempt statute. We also hold that under those facts, if the defendant has taken a substantial step toward commission of the underlying crime, the defendant may be found guilty under N.J.S.A. 2C:5-1a(3).
On October 12, 2000, a Somerset County Grand Jury charged defendant Robert T. Condon, a/k/a Bob T. Condon, with second-degree attempted sexual assault of a victim "he believed to be a thirteen-year-old female," N.J.S.A. 2C:14-2c(4) and N.J.S.A. 2C:5-1 (Count One), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (Count Two). Defendant moved to dismiss the indictment, contending that the State failed to present evidence to the Grand Jury establishing that the victim was, in fact, a thirteen-year-old girl. On February 23, 2001, the motion was denied. On leave to appeal, we affirmed as to Count One, but reversed as to Count Two, and remanded to the trial court for entry of an order dismissing the second count of the indictment. State v. Condon, No. A-4501-00T5 (App. Div. September 25, 2001) (slip op. at 7). Tried to a jury, defendant was convicted of attempted sexual assault. Following a Horne*fn1 hearing, the trial judge concluded that defendant was a repetitive and compulsive sexual offender under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10, and sentenced defendant to eight years of confinement at the Adult Diagnostic and Treatment Center at Avenel. All appropriate penalties and assessments were also imposed.
On appeal, defendant argues:
THE COURT'S ERROR IN ITS JURY INSTRUCTION ON ATTEMPTED SEXUAL ASSAULT REQUIRES REVERSAL.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, AND ITS IMPOSITION WAS CONSTITUTIONALLY DEFECTIVE UNDER STATE v. NATALE[, 184 N.J. 458 (2005)]. THE SENTENCE MUST BE ...