On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-07-00618.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Chambers.
The State appeals the sentence of defendant Michael A. Capone pursuant to N.J.S.A. 2C:44-1(f)(2). Defendant was convicted of second degree sexual assault, N.J.S.A. 2C:14-2(c), and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The convictions are based on voluntary sexual intercourse that defendant, then twenty-four years old, had with the victim H.S., then fifteen years old. In the plea agreement, the State agreed to recommend that defendant be sentenced as a third degree offender to a three year term of imprisonment. The trial judge, however, imposed five years probation.
The State contends that the trial court abused its discretion when it failed to impose a sentence of imprisonment on the sexual assault conviction. Due to the circumstances of the crime and defendant's mental state and background, we affirm, finding that the trial court's decision not to imprison defendant meets the standards of N.J.S.A. 2C:44-1(d).
Defendant met H.S. through a friend. Defendant, H.S., and the friend got together on June 26, 2005, and ended up at defendant's home. H.S. invited defendant to go upstairs. While defendant knew that she was fifteen, he nevertheless went upstairs where they had voluntary sexual intercourse. H.S. contacted defendant the next day, and they had sexual relations a second time. When defendant drove H.S. home that evening, her grandfather, with whom she lived, had called the police because he was concerned about her whereabouts, and defendant admitted to the police officers that he had engaged in sexual relations with H.S.
Since these events, defendant has been diagnosed by Dr. Pamela F. Moss, M.D., a psychiatrist, as suffering from Juvenile Onset Bipolar Disorder with symptoms that have persisted into adulthood. He is being treated with lithium and other medications. It appears that this treatment, under the supervision of Dr. Moss, along with psychotherapy sessions with Dr. Michael Libertazzo, a psychologist, has been able to stabilize defendant's mental state.
We will briefly note some pertinent points regarding defendant's history, set forth in the lengthy record before us which includes numerous mental health reports. As a child, defendant had some health and physical coordination problems, but he is now physically healthy and is described as small in stature, slight and youthful looking. From childhood, he has suffered psychological difficulties. He first saw a psychologist, Dr. Libertazzo, at the age of eight, and continued to see Dr. Libertazzo intermittently over the years. At different times during his childhood he was given various medications in an attempt to resolve his mental health problems.
Defendant was a behavioral problem in school, showing anger and frustration. Other children frequently picked on him and made fun of him. In middle school, he was relentlessly bullied and teased, and he became disruptive. Twice he was placed on home instruction, and during eighth grade, he was placed in a special education school. When defendant started public high school, he was again treated badly by students, and was placed in a private school for children with learning differences. Counsel represented below that when defendant attempted to go back to the public high school in his senior year, he lasted only five days, because he was beaten up and had his lunch money stolen on a regular basis. He returned to the private school where he graduated. He thereafter attended a community college.
Defendant suffered a number of traumatic events, including the suicide of a twenty-one year old cousin who was living with defendant's family, the death of his brother, and the death of his best friend who was killed in a motor vehicle accident. At age nineteen, defendant attempted suicide. For a few years, while in his late teens and early twenties, defendant abused both drugs and alcohol and shoplifted, but this conduct had ceased a number of years before the events in this case.
Due to his sexual contact with H.S., defendant was charged with second degree sexual assault and third degree endangering the welfare of a minor. The statutory definition of sexual assault includes sexual contact between a victim between the ages of thirteen and sixteen and someone who is at least four years older. N.J.S.A. 2C:14-2(c)(4). Here the victim was 170 days short ...