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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...