December 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EUGENE D. CORBESERO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-10-00836-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2008
Before Judges Lisa and Reisner.
Defendant Eugene D. Corbesero appeals from his rejection for admission into the Pre-Trial Intervention Program (PTI) and from his sentence of two concurrent five-year prison terms subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirm.
Defendant, a former priest who was seventy-three years old at the time of the offense, pled guilty to molesting a twelve-year old boy, who was attending a sleep-over at defendant's house. The victim, who was extremely upset, left the bedroom where the incident occurred and called 9-1-1 as well as his mother. Defendant was arrested and eventually pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.
Defendant's PTI application was rejected, on the grounds that he was "charged with a serious offense that carries a presumption of imprisonment" on conviction and that he had "not shown compelling reasons justifying admission." Further, "the public need for prosecution outweigh[ed] the value of supervisory treatment." Rather than appeal from the PTI denial, defendant pled guilty to the charged offenses and then filed a motion for admission to PTI over the State's objection, claiming that his attorney misunderstood defendant's appeal rights. The trial judge agreed with the prosecution that the appeal was untimely. However, considering the merits of the appeal, the trial judge also concluded that the prosecutor had not committed any gross and patent abuse of discretion in denying defendant admission to PTI.
On this appeal, defendant presents the following points for our consideration:
POINT I: DEFENDANT SHOULD BE ADMITTED INTO PTI.
POINT II: THIS MATTER MUST BE REMANDED FOR RE-SENTENCING DUE TO THE TRIAL COURT'S FAILURE TO APPLY THE CORRECT LEGAL PRINCIPLES AT SENTINCING.
A. Failure To Merge The Convictions.
B. Double Counting.
C. Failure To Consider All The Mitigating Factors Supported By The Evidence.
POINT III: THERE ARE COMPELLING CIRCUMSTANCE TO SENTENCE MR. CORBESERO AS A THIRD-DEGREE OFFENDER.
We find no merit in any of these contentions. Beginning with the PTI issue, we will address the merits of the PTI denial, rather than rest our decision on procedural grounds. Like the trial judge, we find no "patent and gross abuse" of the prosecutor's discretion in denying defendant's PTI application. State v. Nwobu, 139 N.J. 236, 246 (1995). Child molesting is not a victimless crime; it is a serious and traumatic violation of the child's person. The PTI Guidelines include a presumption against PTI admission for second degree offenses. See R. 3:28, Guideline 3(i). Our Court has also recognized the appropriateness of a prosecutor's decision to reject a PTI application because the defendant was charged with a sex crime.
See State v. Baynes, 148 N.J. 434, 447 (1997); State v. Litton, 155 N.J. Super. 207, 216-17 (App. Div. 1977); R. 3:28, Guideline 1(c). We affirm the denial of defendant's PTI application.
We find no error in the decision to sentence defendant as a second-degree offender rather than a third-degree offender, nor in imposing a five-year sentence, which is the minimum for a second-degree crime. See N.J.S.A. 2C:43-6a(2); State v. Roth, 95 N.J. 334, 363-64 (1984). Defendant's arguments on these issues are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Finally, we find no merit in defendant's merger argument. Defendant was a caregiver who breached his duty of care; hence the endangering conviction does not merge with the sexual assault conviction. See State v. D.R., 109 N.J. 348, 377 (1988); State v. Miller, 108 N.J. 112, 118-21 (1987).
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