On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-05-0647.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Lisa and Simonelli.
Defendant Hugo A. Rios appeals from the May 4, 2006, Judgment of Conviction. On this appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED IN IT'S [sic] ASSESSMENT OF THE AGGRAVATING AND MITIGATING FACTORS.
THE STATE'S PLEA OFFER CONTAINED A CHILLING EFFECT ON DEFENDANT'S UNFETTERED RIGHT TO COUNSEL ADVERSELY AFFECTING DEFENDANT'S KNOWING AND INTELLIGENT WAIVER OF HIS CONSTITUTIONAL RIGHTS.
We reject these arguments and affirm.
In May 1999, defendant sexually abused C.A., an eleven-year-old girl. From January 2000 to May 2004, defendant sexually abused another girl, K.A., when she was ten to fourteen-years-old. The incidents were eventually reported to the police. During a police investigation, defendant admitted he had sexually assaulted both girls.
On May 10, 2005, a grand jury indicted defendant on the following charges: first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a (count one); second degree sexual assault, contrary to N.J.S.A. 2C:14-2b (counts two and six); second degree sexual assault, contrary to N.J.S.A. 2C:14-2c (count three); second degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (counts four and seven); and third degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3a (count five).
Defendant faced the possibility of a twenty-year sentence if convicted of first degree aggravated sexual assault. By letter, dated May 23, 2005, the prosecutor notified defendant's counsel as follows:
In anticipation of the upcoming arraignment/status conference, the State makes the following post-indictment plea offer prior to motions being filed and heard:
Indictment No. 05-05-00647 -Guilty Plea to Count 1 (Aggravated Sexual Assault - 1st degree) and Count 6 (Sexual Assault - 2nd degree) of the Indictment with the remaining counts being dismissed.
In exchange for your client's plea of guilty, the State will recommend that your client be sentenced on Count I to a 10 (ten) year term of incarceration and on Count 6 to a 5 (five) year term of incarceration with the Commissioner of the Department of Corrections. Both counts to run concurrent to each other.
If this offer is rejected and motions are filed, heard, and denied, the above plea offer is withdrawn, and the ...