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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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