On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-01-0062.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Baxter.
Defendant Anthony Favoroso appeals from his conviction of second degree luring or enticing a minor into a motor vehicle, in violation of N.J.S.A. 2C:13-6 (count one); fourth degree attempted criminal sexual contact, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3(b) (count two); and third degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a) (count three). The court sentenced defendant on count one to a seven-year term of imprisonment, and imposed the mandatory three-year term of parole ineligibility that is required by N.J.S.A. 2C:13-6. The court imposed an eighteen-month term of imprisonment on count two, and a four-year term of imprisonment on count three, concurrent to each other and to the sentence imposed on count one. The court imposed parole supervision for life in accordance with N.J.S.A. 2C:43-6.4, and required defendant to register as a sex offender pursuant to N.J.S.A. 2C:7-2. Appropriate fines and penalties were imposed.
On appeal, defendant presents the following arguments:
I. THE TRIAL COURT ERRED IN FAILING TO CHARGE THE LESSER INCLUDED OFFENSE OF DISORDERLY PERSONS LEWDNESS AS AN ALTERNATIVE TO THE CHARGE OF ATTEMPTED CRIMINAL SEXUAL CONTACT. THIS ERROR WARRANTS REVERSAL OF ALL THE CONVICTIONS.
II. THE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE. THE TRIAL COURT SHOULD HAVE GRANTED THE TRIAL AND/OR POST TRIAL APPLICATIONS FOR A JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL. THE APPELLATE DIVISION SHOULD REVERSE THE VERDICTS NOW.
III. THE TRIAL COURT ERRED IN RULING THAT APPELLANT'S VERBAL STATEMENT TO THE POLICE WAS ADMISSIBLE FOLLOWING THE CONDUCT OF AN N.J.R.E. 104(c) HEARING. THE APPELLATE DIVISION SHOULD REVERSE THE DECISION OF THE TRIAL COURT.
IV. VARIOUS INSTANCES OF PROSECUTORIAL MISCONDUCT IN THE OPENING AND CLOSING STATEMENTS OF THE PROSECUTOR AND IN CROSS-EXAMINATION OF THE APPELLANT WARRANT REVERSAL OF THE CONVICTION.
V. TRIAL COUNSEL COMMITTED INEFFECTIVE ASSISTANCE OF COUNSEL AND THE TRIAL COURT SHOULD HAVE EITHER VACATED THE VERDICTS BASED UPON THE INEFFECTIVE ASSISTANCE OF COUNSEL OR SHOULD HAVE CONDUCTED AN N.J.R.E. 104 HEARING FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
VI. THE SENTENCE IMPOSED WAS CLEARLY EXCESSIVE AND SHOULD BE VACATED.
We agree with defendant's argument in Point I that the court's failure to charge the jury on disorderly persons lewdness, N.J.S.A. 2C:14-4(a), as a lesser included offense of count two, warrants reversal of the conviction on that count. We disagree, however, with his claim that such error warrants reversal of his conviction on counts one and three. We reject the claims defendant raises in Points II, III and IV. As to Point V, we decline to address the majority of defendant's ineffective assistance of counsel claims and preserve them for post-conviction review, pursuant to State v. Preciose, 129 N.J. 451, 460 (1992). In light of our disposition of defendant's arguments respecting his conviction on the charge of attempted criminal sexual contact, we only partially address the sentencing arguments raised in Point VI.
On the evening of July 19, 2004, T.M., then age thirteen, was at home chatting with his friends online when he received an instant message (IM) from a screen name he did not recognize. At the time T.M. received this unknown IM, he was using his screen name "soccerkid1121," to which no user profile was attached. Because T.M. did not recognize the screen name, he wrote back asking the person to identify himself. Receiving no response, T.M. closed the window containing this IM and resumed instant-messaging his friends. When the unknown person sent another IM asking T.M. if he would like to "hang out," T.M. initially refused, but after a half-hour of conversing online with the person later identified as defendant, T.M. agreed to the meeting.
After making the arrangements with defendant, T.M. told his mother that he would be going to a nearby tennis club to watch a boy he knew from the school bus compete in a tennis match. Because his mother was not aware that her son and this boy were friendly, she questioned T.M. about the match and the transportation arrangements.
Shortly thereafter, as planned, defendant arrived in front of T.M.'s home and waited in his vehicle. When T.M. noticed defendant's vehicle in front of his house, he went outside to meet defendant, and his parents followed. Upon noticing that there was only one person, an older man, in the vehicle, T.M.'s parents questioned their son as to the identity of the man, at which time T.M. lied and told his parents that the man was his friend's father. When his parents asked why the friend was not in the vehicle, T.M. told them that the friend had gone to the match earlier, after which T.M. entered the front passenger seat of the vehicle and he and defendant drove away.
Sensing that something was amiss, and with their concerns heightened by the man's failure to introduce himself, T.M.'s father decided to drive to the tennis club to make sure his son was there. Upon arrival, T.M.'s father realized that no tennis match was taking place and his son was nowhere to be found. T.M.'s father immediately called T.M.'s mother ...