On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-06-1297.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt and Parrillo.
Defendant Michael Gargiulo appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted on seventeen counts for: endangering the welfare of J.R., A.P., R.D., C.C. and R.M., children under the age of eighteen, N.J.S.A. 2C:24-4(a) (Counts I, II, III, XI, and XIV); sexual assault upon A.P., J.R., C.C. and R.M., children under the age of thirteen, N.J.S.A. 2C:14-2(b) (Counts IV, V, X, and XIII); criminal sexual contact with R.D., a child at least thirteen years of age but younger than sixteen, N.J.S.A. 2C:14-3(b) (Count VI); child abuse upon J.R., A.P., R.D., C.C. and R.M., children under the age of eighteen, N.J.S.A. 9:6-3 (Counts VII, VIII, IX, XVI, and XVII); and criminal restraint of C.C. and R.M., N.J.S.A. 2C:13-2 (Counts XII and XV). On the eve of trial, the court granted the State's motion pursuant to N.J.R.E. 404(b) to admit evidence of defendant's 1992 guilty plea to the sexual assault of a child under the age of thirteen. The following day, January 21, 1998, defendant entered into a negotiated plea agreement whereby he pled guilty to Count IV -- second-degree sexual assault on A.P. -- in return for the State's recommendation of a five-year sentence with no parole eligibility and dismissal of the remaining sixteen counts of the indictment. Defendant reserved the right to appeal all pretrial determinations by the court.
At the plea hearing it was ascertained that on March 30, 1997, defendant was working as a carpenter, rehabilitating a building at 412 Wister Place, Atlantic City. He was in a room at ground level with a window when he began to masturbate, knowing that young children, J.R., A.P., and R.D, were watching him through the window. The children were all under thirteen years of age and defendant was at least four years older than the children. Defendant admitted masturbating in view of the children to sexually gratify himself.
According to the presentence report, J.R.'s mother, M.R., told the responding police officers that she had heard a noise coming from a first floor apartment and saw defendant with his penis in his hand. The children also told police they had been walking down the stairs from the second floor when they heard tapping on the window of the first floor apartment. When they looked inside, defendant was holding his penis in his hand. Subsequent police investigation revealed that defendant had earlier been observed by the mother of one of the victims, R.M., "playing games" with neighborhood children "in a strange manner". In fact, one of the alleged victims, C.C., an eight-year old female, told police that a few weeks earlier, she had been playing with R.M. when defendant put his hands on her chest and fondled R.M.'s chest as well, while placing his other hand in his pants. Both girls managed to escape when R.M. elbowed defendant in the stomach.
In accordance with the terms of the negotiated plea, defendant was sentenced to a five-year term with a five-year parole bar. In addition to appropriate fees and penalties, the court imposed community supervision for life and registration under Megan's Law, N.J.S.A. 2C:7-1 to -19. Defendant appealed and we affirmed. State v. Gargiulo, Docket No. A-5350-97T5 (App. Div. October 8, 1998). Prior to his release date, defendant was civilly committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38, where he remains to date. Defendant then filed the instant PCR petition on May 7, 2004, which was denied on May 17, 2005. This appeal follows, in which defendant raises the following issues:
I. THE STATE VIOLATED BRADY V. MARYLAND AND THERE WAS A REASONABLE PROBABILITY THAT, BUT FOR THE STATE'S FAILURE TO DISCLOSE THE INFORMATION, MR. GARGIULO WOULD NOT HAVE PLEADED GUILTY.
II. MR. GARGIULO WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Failed to Advise Mr. Gargiulo That the Sexually Violent Predators Act Would Apply to Him and Possibly Lead to a Life Sentence of Imprisonment.
B. Mr. Gargiulo Was Not Advised of the Consequences of Community Supervision for Life.
C. Applicability of CSL and SPVA to Mr. Gargiulo are Direct, Not Collateral, Consequences of His Guilty Plea and Counsel's Failure to Advise Accurately Constitutes Ineffective Assistance of Counsel.
D. As a Result of Trial Counsel's Failure to Investigate and Consider Potential Defenses, Mr. Garguilo ...