February 4, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BERNARDO SOSA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-03-0307-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 14, 2009
Before Judges C.L. Miniman and Baxter.
Defendant Bernardo Sosa, who pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), appeals from the sentence imposed. We now affirm the sentence imposed, concluding that it was not excessive, but remand the matter to the sentencing judge for entry of an order redacting from the presentence investigation report certain portions of the two-page addendum to the victim-impact statement written by defendant's former spouse, Eneida Sosa.
On November 2, 2006, defendant admitted that he had sexual intercourse with K.D. on October 30, 2005, and that she did not, and could not, consent. Although K.D. was forty-eight years old, defendant knew that she did not have the mental capacity to consent to intercourse. Defendant's granddaughter was present during the sexual assault.
Eneida submitted a victim-impact statement dated April 10, 2006. Eneida was K.D.'s caregiver and guardian, licensed by the State to care for developmentally disabled persons. K.D. had lived with the Sosas for about ten years. She described the impact of the crime on K.D., her granddaughter, and herself in a general fashion on the Victim Impact Information Form utilized by the Passaic County Prosecutor's Office. Apparently, some time after she learned of the plea agreement, Eneida wrote a two-page, typewritten letter to the judge who accepted the plea and was to impose sentence.
In that letter to the judge, Eneida provided additional "information" describing the impact of the crime on the victim, her granddaughter, and herself and protested the sentence to be imposed under the plea agreement. To support a more significant term of incarceration, she stated that she was under the impression that defendant had been evaluated in a hospital and that she would like to "share some information with intent of helping with your decision." She advised the judge that "since this crime has unfolded[,] I started researching Bernardo's past[,] which lead [sic] to a lot of disturbing information gathered by his sisters." She then recounted the double and triple hearsay information she gathered, all of which related to multiple alleged sexual offenses committed against defendant's family members in Puerto Rico, none of which had apparently been the subject of any police investigation, criminal charges, or juvenile adjudications.
Defendant was brought before the judge for sentencing on June 11, 2007. Defendant moved for deletion of the victim impact statement, arguing that defendant's wife was not the victim. Defendant also argued that the letter to the judge was inflammatory and could have a deleterious impact on parole and might be used to seek commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. The State did not object, although the prosecutor noted that the victim had been under the care of defendant's wife and resided with the Sosas for ten years and thus Eneida had standing to present information on behalf of the victim.
In deciding the motion, the judge observed that the right of a victim to speak is in the Constitution, citing N.J. Const. art. I, § 22, that Eneida fell within the constitutional and statutory definition of "victim," citing N.J.S.A. 52:4A-37, and concluded that she had standing. As to the two-page letter, the judge observed that the rules of evidence did not apply at sentencing and it was within the discretion of the judge to determine whether any statements affected the aggravating and mitigating factors. He concluded that it was not "appropriate for the [c]court to take a portion of the victim impact statement and remove it from the PSR because it contains kind of salacious information that may or may not be founded." He observed that, if he followed the plea agreement and did not enhance the sentence based on that information, the Parole Board would probably look at the judicial response to the information.
Having decided the motion, the judge engaged in a colloquy with Eneida and then imposed sentence on defendant. With respect to the aggravating factors, he found that there was a strong need to deter, N.J.S.A. 2C:44-1(a)(9), especially where defendant knew that K.D. was mentally incompetent and could not consent to sexual activity. He also found as an aggravating factor that the victim was vulnerable. N.J.S.A. 2C:44-1(a)(2). As to the mitigating factors, he found that defendant had no prior criminal record. N.J.S.A. 2C:44-1(b)(7). He sentenced defendant to six years in prison subject to the eighty-five percent parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, together with appropriate penalties, assessments, and fees. Defendant was given jail credit in the amount of 566 days, making him parole eligible on or about December 28, 2010.
Defendant raises the following issues for our consideration:
POINT I -- DEFENDANT'S FORMER SPOUSE DID NOT QUALIFY AS A VICTIM UNDER N.J.S.A. 52:4B-37 OR UNDER THE NEW JERSEY CONSTITUTION. THEREFORE, HER VICTIM IMPACT STATEMENT MUST BE STRUCK [SIC] FROM THE PRE-SENTENCE [SIC] REPORT. ALTERNATIVELY, A TWO-PAGE ADDENDUM ATTACHED TO THE VICTIM IMPACT STATEMENT MUST BE STRUCK [SIC] FROM THE PRE-SENTENCE [SIC] REPORT AS IT FAILS TO ADDRESS THE IMPACT OF THE CRIME ON THE VICTIM AND INSTEAD INJECTS NAKED ALLEGATIONS OF PRIOR SEXUAL MISCONDUCT BY THE DEFENDANT UPON UNNAMED VICTIMS AT UNSPECIFIED DATES IN A FOREIGN JURISDICTION.
A. Defendant's Former Spouse Was Not The Victim In This Case. Therefore, The Court Erred In Granting Her That Status And Her Victim Impact Statement Must Be Struck [sic] From The PreSentence [sic] Report.
B. Alternatively, The Typed Two Page Addendum Attached To The Victim Impact Statement Must Be Struck [sic] From Defendant's Pre-Sentence [sic] Report.
POINT II -- THE SENTENCE IS MANIFESTLY EXCESSIVE.
With respect to defendant's first point on appeal, the judge found such standing to exist based on language in the definitions of "victim" found in Article 1, Section 22, of the New Jersey Constitution or under N.J.S.A. 52:4B-37, both of which extend the status of "victim" to certain family members of victims of homicides.*fn1 Although we are not entirely satisfied that a crime victim's family member enjoys the status of a "victim" in the absence of a criminal homicide, we need not reach this issue. We are satisfied that, as the guardian of K.D., a mentally incompetent person, and as the grandmother of the tender-years witness to the crime,*fn2 Eneida could speak in loco parentis on their behalf and complete a victim-impact statement for them. Cf. Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 91 (2006).
We turn, instead, to the second issue relating to the two-page letter to the judge. The Legislature initially granted rights to crime victims in 1981 when it amended N.J.S.A. 2C:44-6(b)(3), see L. 1981, c. 481, § 1, which now provides in pertinent part:
The presentence report shall also include . . . , in any case where the victim chooses to provide one, a statement by the victim of the offense for which the defendant is being sentenced. The statement may include the nature and extent of any physical harm or psychological or emotional harm or trauma suffered by the victim, the extent of any loss to include loss of earnings or ability to work suffered by the victim and the effect of the crime upon the victim's family.
In 1985, the Legislature enacted the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -49, but that act did not guarantee victims the right to speak at sentencing or submit a written impact statement. The act was subsequently amended in 1991 to include the following additional rights:
m. To submit a written statement about the impact of the crime to a representative of the county prosecutor's office which shall be considered prior to the prosecutor's final decision concerning whether formal criminal charges will be filed; [and]
n. To make, prior to sentencing, an in-person statement directly to the sentencing court concerning the impact of the crime.
This statement is to be made in addition to the statement permitted for inclusion in the presentence report by N.J.S.A. 2C:44-6. [N.J.S.A. 52:4B-36.]
While this amendment to N.J.S.A. 52:4B-36 was under consideration, Attorney General Robert Del Tufo and all twenty-one county prosecutors advocated a constitutional amendment to the New Jersey Constitution giving constitutional stature to crime victims' rights. Hearing on ACR-85 Before the Assembly Judiciary, Law and Pub. Safety Comm., 204th Leg., 1st Sess. (1990) (remarks of Attorney General Robert Del Tufo). The Attorney General observed that crime victims were unwilling to cooperate "with a system that may not have proper consideration . . . to the victim's view on charging or dismissal or to the victim's opportunity to describe the impact of a crime on them." Id. at 2. The resulting constitutional amendment, as adopted, provides:
A victim of a crime shall not be denied the right to be present at public judicial proceedings . . . . A victim of a crime shall be entitled to those rights and remedies as may be provided by the Legislature. For the purposes of this paragraph, "victim of a crime" means: a) a person who has suffered physical or psychological injury or has incurred loss of or damage to personal or real property as a result of a crime . . . . [N.J. Const. art. 1, § 22.]
Victims of crime, thus, have statutory and constitutional rights to make an impact statement and to be present at public judicial proceedings. The issue before us is whether those rights encompass Enedia Sosa's two-page letter to the sentencing judge.
Certainly, the first four paragraphs of that letter speak to the impact of the crime on K.D., defendant's granddaughter, and his former spouse. But the letter goes well beyond an impact statement when Eneida communicates double and triple hearsay respecting alleged sexual offenses of which she had no personal knowledge and which were never the subject of any criminal investigations or charges, much less any prior convictions. Although evidentiary rules generally do not apply at sentencing, see Williams v. New York, 337 U.S. 241, 246-47, 69 S.Ct. 1079, 1083, 93 L.Ed. 2d 1337, 1342 (1949), our Supreme Court has nonetheless made it clear with respect to sentencing that it "will always require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence." State v. Roth, 95 N.J. 334, 363 (1984) (citing State v. Johnson, 42 N.J. 146, 162 (1964)).
Clearly, the objectionable portion of Eneida's statement could never support the exercise of discretion respecting sentencing. Neither can it in the future support the exercise of discretion by the Parole Board. As a consequence, the letter should have been redacted to remove the statements respecting other crimes prior to sentencing. Accordingly, we remand this matter to the sentencing judge to issue an order compelling the redaction of all of the text beginning with the words "The day of Bernardo's trial" in the fifth line of the fifth paragraph on the first page of the letter and ending with "crimes he has gotten away with" in the last line of the last full paragraph on the second page.
The scope of our review of the propriety of the sentence imposed is generally limited to determining whether "the sentencing court applied the standards and guidelines of the Code." State v. Hodge, 95 N.J. 369, 376 (1984) (citing Roth, supra, 95 N.J. at 363). We will only exercise our "judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." Roth, supra, 95 N.J. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)). Thus, our review is limited:
In this context of appellate review of sentencing, then, an appellate court can perform these review functions within its traditional mode. It can (a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience. [Roth, supra, 95 N.J. at 364-65.]
Applying that scope of review, we are satisfied that the judge conformed to the sentencing guidelines, that the aggravating factors were based on competent credible evidence in the record because the judge did not consider the double and triple hearsay in Eneida's letter to him, and that the sentence, which is below the midrange for a second-degree crime, does not shock our judicial conscience.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.