April 1, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER DAVID GENTILE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 04-04-0271 and 04-07-0466.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 16, 2008
Before Judges Parker, Yannotti and LeWinn.
Defendant Christopher Gentile was charged under Indictment No. 04-04-0271 with four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2), and one count of second- degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). These charges spanned the period from December 2003 to February 2004, during which time defendant was a science teacher at Franklin Township High School, and the victim, K.M., was a freshman at the school. Defendant was also charged under Indictment No. 04-07-00466 with fourth-degree contempt, N.J.S.A. 2C:29-9(a), when he failed to comply with a condition of his bail that he have no contact with K.M.
On January 10, 2006, defendant pled guilty under the first indictment to one count amended to second-degree sexual assault and to second-degree endangering the welfare of a child; he also pled guilty to the fourth-degree contempt charge in the second indictment. The plea agreement provided for a flat five-year term of incarceration; evaluation at the Adult Diagnostic and Treatment Center (ADTC) to determine if defendant was eligible for confinement and treatment there pursuant to N.J.S.A. 2C:47-1 to -10; community supervision for life, N.J.S.A. 2C:43-6.4; Megan's Law registration, N.J.S.A. 2C:7-1 to -19; and forfeiture of his teaching license.
The ADTC evaluation concluded that defendant met the statutory standards of eligibility for confinement at that facility. Defendant challenged that evaluation and presented an expert witness on his own behalf. Following a Horne*fn1 hearing, the trial court found that defendant was eligible for sentencing to the ADTC and imposed a flat five-year term on the second-degree offenses, and a concurrent one-year term on the contempt offense.
On appeal, defendant challenges the trial court's determination that he was eligible for sentencing to the ADTC; he further contends that his sentence is excessive in that he should have been found eligible either (1) for a probationary sentence notwithstanding the presumption of incarceration attached to a second-degree offense, N.J.S.A. 2C:44-1(d); or (2) for sentencing to a term appropriate to a third-degree offense pursuant to N.J.S.A. 2C:44-1(f)(2).*fn2 Having considered these contentions in light of the record and the applicable law, we conclude that they are without merit and affirm.
The evidence may be briefly summarized as follows and is largely taken from defendant's own statement to Detective Werner Rodas of the Somerset County Prosecutor's office, on February 20, 2004. After receiving his Miranda*fn3 warnings, defendant related that he ha[d] been having a relationship with [K.M.]. He advised that he met [K.M.] in September when she became his student in the beginning of the 2003 school year. He . . . began to tutor [K.M.] after school sometime in October 2003. . . .
He and [K.M.] then became involved in an intimate and sexual relationship that began with kissing and hugging and sleeping in the same bed. . . . He also advised that during the time frame of New Year[']s Eve to the present he had met with [K.M.] on about 8-10 occasions and they engaged in fellatio, cunnilingus, digital penetration, and vaginal intercourse on those 8-10 occasions.
He also advised that on one occasion he performed digital vaginal penetration on [K.M.] while in his classroom at Franklin H.S.
On or about March 8, 2004, defendant posted bail of $75,000 conditioned upon his having "no contact with the victim." On May 26, 2004, school attendance officer Dennis Harris reported to Detective Rodas that on the previous four days, K.M. was absent during the school day but would return at the end of school in time to take the school bus home. On that date, Harris conducted a surveillance of K.M.'s return to school and "observed [defendant] driving away from the area of the school and within seconds he observed [K.M.] walking from the same direction that [defendant] just drove from." Based on this information, Rodas "suspected that [defendant] may have been in contact with [K.M.], violating his provision of bail."
At the Horne hearing, Dr. Jeffrey C. Singer, a licensed psychologist, testified on behalf of the State as to the ADTC evaluation he performed upon defendant. Dr. Singer described the battery of tests he administered to defendant, as well as the questionnaire defendant completed, and their "face-to-face" interview. Defendant told Dr. Singer that, "during the period of the sex offending activity, . . . he had made efforts . . . to avoid [K.M.], he had conversations that [they] had to stop, but the sex offending continued." Dr. Singer identified this behavior as "compulsivity" which he defined as "an irresistible urge to commit an irrational act. He tried to stop and it didn't happen." The fact that defendant continued to have contact with K.M. despite his bail restriction underscored Dr. Singer's opinion that defendant's "pattern was compulsivity, even having court sanctions, having been arrested and having his freedom taken away. He still went and had contact with the victim."
Dr. Singer opined to "a reasonable degree of psychological certainty . . . that . . . [defendant's] pattern of sexual offending behavior can be characterized as having been performed repetitively and compulsively." Dr. Singer further opined that defendant was "willing to accept sex offender treatment, and . . . [had] the psychological assets to benefit from such an intervention." He summed up the factors upon which he based his opinion as to repetitiveness and compulsivity as follows:
Number one, the sex offenses happened more than once. There were instances of sexual intercourse, cunnilingus, one incident of fellatio. We're way over repetitive.
Compulsivity, I believe, has been satisfied from the fact that [defendant] knew professionally that teachers don't sleep with students. He knew that there was an age difference, that she was a minor. Albeit an older minor, but still a minor and he was [in] loco parentis.
And so that was going into the relationship. He . . . was conflicted, knowing it was wrong, made efforts to stop, was unable to stop during the sex offending period. Felt badly about himself and still couldn't stop. Was then arrested, still had contact with the victim. So I think that underscores the behavioral compulsivity as defined . . . under these circumstances.
And when I asked him if he wanted help for this, . . . he said I need help with my feelings, yes. And I believe he can benefit.
Dr. Singer acknowledged that he regarded defendant's relationship with K.M. as "situational" because defendant "identified with his victim from his own childhood." The doctor also acknowledged that he considered defendant a "low risk" in terms of future behavior. However, Dr. Singer emphasized that neither of these assessments had any impact on his "assessment and opinion that [defendant] falls within the ADTC guidelines."
On cross-examination, Dr. Singer acknowledged that in his report he stated that defendant could be treated on an outpatient basis. However, the doctor acknowledged that was "not really [his] call to make[,]" and reiterated his opinion that defendant should be sentenced to the ADTC.
Dr. Paul Fulford, also a licensed psychologist, testified on behalf of defendant. He agreed that the "record is clear that [defendant] is repetitive as was stated in the testimony . . . and review of the records, as well as Dr. Sin[g]er's report[;] we[']re coming from the same place on that. Repetitiveness is not an issue."
Dr. Fulford opined, however, that defendant did not meet the criteria for ADTC placement because "he does not evidence" compulsivity. The doctor characterized defendant's relationship with K.M. as "an infatuation[,]" adding that defendant was "unable to deal with [his] love for her." Dr. Fulford stated: "Now, [defendant] didn't control himself in that he admits he committed the crime. So, that is a volitional statement. I know it's wrong, but I'm going to do it. And that's not a loss of control, it is a controlled statement. Like I want this young woman." The doctor further noted that defendant's behavior "show[ed] that he has episodically controlled himself." Dr. Fulford described sending defendant to the ADTC as "overkill," noting that defendant "is willing and able and likely and guaranteed, through supervision, to take . . . treatment[.]"
At the conclusion of the testimony, the trial judge rendered his decision from the bench, finding in pertinent part:
Upon a review of the report of the ADTC . . . and in consideration of the expert opinion testimony of Jeffrey C. Sin[g]er, Ph.D.[,] and [in] consideration of the report . . . of Paul Fulford, Ph.D., and in consideration of the testimony of Dr. Fulford, and by the way, I frankly do not find much of a disagreement or conflict between the conclusions of Dr. Fulford and Dr. Sin[g]er considering the criteria which each has applied.
However, Dr. Fulford has applied a criteri[on] which is more akin to that found in the construct of mental health as opposed to that which is applied by Dr. Sin[g]er, which is a statutory construct.
The former certainly can't be argued from a mental health point of view, but it is the latter which must be applied here. So my determination is to be made applying statutory legal criteria rather than D[iagnostic and] S[tatistical] M[anual] or other mental health criteria. Therefore, while even if I were inclined to agree with Dr. Fulford that ADTC incarceration might constitute an overkill, that's irrelevant.
The fact that there are alternative treatment modalities available which might be just as effective as in-patient treatment at [the ADTC] is also not relevant.
The fact this [defendant] has no past sex offending behavior is not relevant. And in what I characterize as the myopic perspective here, I do find, by a preponderance of the evidence and under the totality of the circumstances, that [defendant] does fall, for the purpose of sentencing, within the purview of the New Jersey Sex Offenders Act and is therefore eligible for sentencing to the [ADTC].
The "statutory construct" noted in the trial judge's decision is set forth in N.J.S.A. 2C:47-3(a), which provides:
If the report of the [ADTC] examination reveals that the offender's conduct was characterized by a pattern of repetitive, compulsive behavior and further reveals that the offender is amenable to sex offender treatment and is willing to participate in such treatment, the court shall determine whether the offender's conduct was so characterized and whether the offender is amenable to sex offender treatment and is willing to participate in such treatment and shall record its findings on the judgment of conviction.
On appeal, defendant and the State agree that the elements of repetitiveness, amenability to treatment and willingness to participate in treatment are not at issue. The disputed issue is the element of compulsivity.
We defer to the trial judge's assessment of the expert testimony presented to him on this issue. Dr. Singer's opinion was sufficient to support a finding, by a preponderance of the evidence, that defendant met all the statutory criteria including compulsivity. As the judge noted, Dr. Fulford addressed this issue through a mental health paradigm, while the judge's obligation was to determine whether "'the statutory standards ha[d] been met . . . .'" Horne, supra, 56 N.J. at 377 (quoting State v. Wingler, 25 N.J. 161, 181 (1957)).
The remainder of defendant's sentencing arguments are without sufficient merit to warrant discussion in this opinion.
R. 2:11-3(2)(e). The trial judge expressly rejected defendant's request to consider mitigating factors one and two, N.J.S.A. 2C:44-1(b)(1) and (2), that "[his] conduct [did not] cause . . . serious harm" and that he "did not contemplate that his conduct would cause . . . serious harm[.]" The judge stated:
I reject the suggestion that your acts neither caused nor threatened serious harm. The harm here is not limited to the intent to harm . . . the victim, but the harm here also extends to the societal impact that this conduct has when engaged in by a teacher, a person in whom trust is reposed to care for and not victimize students in your charge. And although [K.M.] . . . appears here today and . . . indicates that she is not asking anything of you, concedes in her mind you have done more than enough . . . [t]hat does not . . . impact or implicate the lack of causation or threatening of serious harm.
The trial judge also properly rejected mitigating factor eight, that defendant's "conduct was the result of circumstances unlikely to recur[,]" N.J.S.A. 2C:44-1(b)(8). The judge noted that defendant continued to see K.M. notwithstanding the no-contact condition of his bail. Therefore, the judge "was not convinced that this is a situation where [he could] conclude that this conduct was the result of circumstances unlikely to recur."
Nothing in defendant's situation warrants a finding that his imprisonment "would be a serious injustice which overrides the need to deter such conduct by others[,]" sufficient to overcome the presumption of imprisonment upon conviction of a second-degree offense. N.J.S.A. 2C:44-1(d). "In deciding whether a sex offender is to receive in-patient or out-patient treatment, the sentencing judge must consider the impact of the presumption [of incarceration]." State v. MacAlpin, 223 N.J. Super. 299, 303 (App. Div. 1988). The trial judge properly concluded that "'the presumption of imprisonment' is an additional factor warranting custodial treatment in this case." State v. Hamm, 207 N.J. Super. 40, 45 (App. Div. 1986).
Finally, we reject as without merit defendant's alternative argument that he should have been sentenced to a term appropriate to a third-degree offense, pursuant to N.J.S.A. 2C:44-1(f)(2). Under that statute, a judge must be "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and . . . the interest of justice demands" that defendant receive the benefit of a reduced term. Here, the trial judge found the opposite situation, namely that the aggravating factors "substantially outweigh[ed] the mitigating factors." Review of the record convinces us that the trial judge's analysis of the aggravating and mitigating factors was "based upon competent credible evidence in the record . . . ." State v. Roth, 95 N.J. 334, 364 (1984). We perceive no basis on which to disturb the resultant sentence.