On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 04-11-0434.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Brian Scott Baldwin pled guilty to third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:24-4(a) and N.J.S.A. 2C:5-1. Under a negotiated plea agreement, the State was free to recommend that defendant be sentenced to a maximum term of five years, subject to a psychiatric evaluation at the Adult Diagnostic and Treatment Center (ADTC) to determine if he qualified as a compulsive and habitual sex offender under N.J.S.A. 2C:47-3. Defendant would be subject to the reporting requirements of Megan's Law, N.J.S.A. 2C:7-1 to -11.
At the sentencing hearing, defendant objected to the inclusion in the Pre-sentence Investigation Report of a report prepared by his privately retained social worker therapist indicating that defendant was a compulsive sex offender with "low intelligence and insight" into his behavior. Defendant argued that inclusion of this report without his expressed consent violated his rights of confidentiality under N.J.R.E. 518.
The sentencing judge overruled the objection, noting that defendant had waived the privilege when he signed the standard waiver form in connection with the pre-sentence report. The pre-sentence report also included the ADTC evaluation, which found defendant to be a compulsive and repetitive sexual offender, and thus eligible to be sentenced under the Sex Offender Act, N.J.S.A. 2C:47-1 to -10.
The court sentenced defendant, consistent with the plea agreement, to a term of five years, subject to the reporting requirements in Megan's Law. He is to serve the sentence at the ADTC facilities in Avenel. In determining the appropriate sentence, the court noted that defendant is a registered sex offender. In 1993, he was convicted and sentenced to a three-year term for second-degree sexual assault and defendant was also sentenced in 1995 to a term of five years, again for second-degree sexual assault. In this light, the court found aggravating factors 3, 6, and 9, and no mitigating factors.
Defendant now appeals raising the following arguments.
THE TRIAL JUDGE ERRED IN REFUSING TO EXCISE PREJUDICIAL INFORMATION FROM THE PRESENTENCE REPORT BEFORE SENTENCING THE DEFENDANT.
THE DEFENDANT'S SENTENCE IS ...