August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-04-00257.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 9, 2009
Before Judges Lisa and Collester.
Defendant pled guilty to both counts in the indictment, which charged him with (1) second-degree sexual assault, through sexual contact with a victim less than thirteen years of age, N.J.S.A. 2C:14-2b, and (2) third-degree endangering the welfare of a child, by engaging in sexual conduct that would impair or debauch the morals of a child, N.J.S.A. 2C:24-4a. Consistent with the recommendation in the plea agreement, defendant was sentenced to nine years imprisonment on count one and a concurrent term of five years imprisonment on count two. The sentence was ordered to run concurrent with a sentence defendant was then serving in Pennsylvania for sexual offenses committed against the same victim. Defendant was also sentenced to community supervision for life and the requirements of Megan's Law. Further, based upon a psychological evaluation at the Adult Diagnostic and Treatment Center (ADTC), the judge determined that defendant's conduct was repetitive and compulsive, as a result of which he ordered that defendant's sentence be served at the ADTC.
Defendant argues on appeal:
THE TRIAL COURT ABUSED ITS DESCRETION [SIC] WHEN IT DENIED [R.A.R.]'S MOTION TO DISMISS THE INDICTMENT IN ACCORDANCE WITH N.J.S.A. § 2C:1-3(f).
A. Pennsylvania Prosecuted [R.A.R.] for the Same Conduct that is the Subject of the New Jersey Indictment.
B. New Jersey's Interest Were [sic] Adequately Served by Pennsylvania's Prosecution.
THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE [R.A.R.]'S CONVICTION FOR THIRD DEGREE ENDANGERING THE WELFARE OF A MINOR WITH HIS CONVICTION FOR SECOND DEGREE SEXUAL ASSAULT (not presented below).
A. A Clear Legislative Intent to Impose Multiple Punishments Does Not Exist.
B. [R.A.R.] Faced Multiple Punishments for the same offense.
C. Even If the Offenses Are Technically Different, The Offenses Are Not Designed to Protect the Same Interest.
D. [R.A.R.] did not voluntarily, knowingly and intelligently waive his constitutional right to assert a merger claim.
THE TRIAL COURT ERRED BECAUSE IT IMPOSED AN ADULT DIAGNOSTIC AND TREATMENT CENTER SENTENCE ON [R.A.R.] THAT VIOLATES N.J.S.A. 2C:47-3(h)(2) AND THAT IS INDETERMINATE (not presented below).
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED [R.A.R.] TO NINE YEARS OF IMPRISONMENT FOR COUNT ONE AND FIVE YEARS OF IMPRISONMENT FOR COUNT TWO BECAUSE THE TRIAL COURT FAILED TO FIND MITIGATING FACTORS AMPLY SUPPORTED BY THE RECORD.
We reject these arguments and affirm.
The indictment charged that defendant, now fifty-three years of age, on various dates between March 8, 1996 and March 8, 2000, in Green Brook, committed acts of sexual contact with C.M., a boy who was born on March 8, 1989. When C.M. was fifteen years old, he reported to Pennsylvania authorities that defendant sexually assaulted him in Pennsylvania. In the course of that investigation, it was revealed that defendant also sexually assaulted C.M. in New Jersey. Defendant admitted his wrongdoing in both states. Defendant admitted that he engaged in approximately ten to twenty of these incidents with C.M. in New Jersey.
Defendant was prosecuted in Pennsylvania for another unrelated set of sexual offenses committed in that state against two other young boys. On December 16, 2005, he was sentenced in Pennsylvania to five to ten years imprisonment for involuntary deviate sexual intercourse, and two consecutive sentences of six to twelve months each for indecent assault. Thus, he received an aggregate term of six to twelve years on those charges.
On February 17, 2005, defendant was indicted in Pennsylvania for his sexual improprieties against C.M. He pled guilty to indecent assault upon a minor less than thirteen years of age and criminal solicitation for involuntary deviate sexual intercourse. On February 27, 2006, he was sentenced to four to eight years imprisonment, concurrent to the six to twelve year sentence described above.
The New Jersey indictment was returned on April 12, 2006. On May 8, 2007, defendant moved to dismiss the indictment on grounds of double jeopardy. He argued that, under N.J.S.A. 2C:1-3f, New Jersey could not prosecute him based upon the same conduct for which he had been convicted in Pennsylvania, and New Jersey's interests were adequately protected by the Pennsylvania prosecution. Judge Armstrong denied the motion. Defendant subsequently pled guilty and was sentenced as we have described. This appeal followed.
These are the relevant facts. C.M. lived with his family in Green Brook. Defendant, a close family friend, often stayed with C.M's family for extended periods of time, and he slept in the basement family room. C.M. later reported that on a number occasions defendant showed him pornographic materials and fondled his genitals. Some of the incidents occurred when C.M. went to the basement to watch television. Defendant instructed C.M. to remove his pants, and he fondled his penis and sometimes masturbated him. On other occasions, defendant drove C.M. to a wooded area, where he fondled his penis. During the same time period, C.M. and his family occasionally traveled on weekends to an apartment in Pennsylvania, which C.M.'s parents owned and were then renovating. Defendant accompanied the family on some of these weekend trips in order to help with repairs. He committed similar acts of sexual abuse upon C.M. on those occasions.
Defendant argues that the trial court should have dismissed the indictment pursuant to N.J.S.A. 2C:1-3f, which provides:
Notwithstanding that territorial jurisdiction may be found under this section, the court may dismiss... a criminal prosecution under the law of this State where it appears that such action is in the interests of justice because the defendant is being prosecuted for an offense based on the same conduct in another jurisdiction and this State's interest will be adequately served by a prosecution in the other jurisdiction.
Dismissal under the statute requires that: "(1) the defendant is being prosecuted for an offense based on the same conduct in another jurisdiction; and (2) this State's interest will be adequately served by that prosecution." State v. Gruber, 362 N.J. Super. 519, 527 (App. Div.), certif. denied, 178 N.J. 251 (2003). N.J.S.A. 2C:1-3f represents a curtailment of the doctrine of dual sovereignty under which the Fifth Amendment protection against double jeopardy does not bar states from treating an offender whose act violates the laws of two or more sovereigns as having committed two or more distinct offenses capable of being prosecuted in each state. Id. at 527-28. The purpose of the statute is to foster efficiency in the administration of justice and protect criminal defendants from the potential unfairness of multiple prosecutions while at the same time granting broad power to states to exercise their powers of dual prosecution where appropriate. Id. at 528-29.
We agree with Judge Armstrong's conclusion that neither prong of N.J.S.A. 2C:1-3f was met. The first prong requires that the prosecutions be based on the "same conduct." Defendant attempts to blur this concept by, in essence, arguing that similar conduct, committed against the same victim during the same general time frame, satisfies that requirement. This is not the case. As Judge Armstrong found, the New Jersey indictment charged defendant with "distinct discrete acts" which occurred in this state. Defendant's acts against C.M. in this state did not violate the laws of two sovereigns. They violated only the laws of New Jersey. Proof of defendant's crimes against C.M. in this state did not require proof of any conduct committed in Pennsylvania. These were freestanding independent crimes and did not meet the "same conduct" prong. State v. Ellis, 280 N.J. Super. 533, 551-52 (App. Div. 1995); Gruber, supra, 362 N.J. Super. at 533.
The second prong is also not satisfied. Although the custodial component of defendant's Pennsylvania sentence is comparable to that to which he was subject and which he received in New Jersey, other important consequences flowing from the New Jersey prosecution were not obtained from the Pennsylvania prosecution. Pennsylvania does not require community supervision for life, and its sex offender registration requirements are not as severe as those imposed in New Jersey under Megan's Law. Accordingly, New Jersey's substantial interest in protecting the public from convicted sex offenders was vindicated by the New Jersey prosecution, conviction and sentence. Further, because the New Jersey crimes against C.M. were separate and distinct from those in Pennsylvania, New Jersey's interest in punishing criminal conduct occurring solely in this state, and avoiding "free crimes," was also vindicated.
Judge Armstrong did not err in denying defendant's motion to dismiss the indictment.
Defendant argues that the endangering count should have been merged with the sexual assault count. He relies on State v. Still, 257 N.J. Super. 255, 259-60 (App. Div. 1992), in which we distinguished between what are now second and third-degree endangering under N.J.S.A. 2C:24-4a. We distinguished the Supreme Court's holding in State v. Miller, 108 N.J. 112, 120-21 (1987), which dealt with the higher degree form of endangering, which includes as an element that the defendant had a legal duty or assumed responsibility for the care of the child, and the lower degree form, which does not contain that element; we held that for the lesser form, in "circumstances where the record suggests no basis for the endangering conviction beyond the sexual assault," the offenses merge. Id. at 259.
When defendant pled guilty, he admitted to the multiple acts of fondling C.M. in New Jersey, and that his purpose was for his sexual arousal or sexual gratification. He was not asked about displaying pornographic materials to C.M. Evidence of the latter conduct was adduced before the grand jury. When evaluated at the ADTC, defendant admitted such conduct to the evaluator. Defendant, of course, was in possession of that report prior to sentencing. He had the right to dispute its contents, but did not. At sentencing, the judge set forth the relevant facts underlying defendant's conviction. He said: "CM was interviewed and stated that the defendant family friend had fondled his genitals and showed him pornographic materials on numerous occasions between 1996 and 2000." Defendant took no exception to that portion of the judge's recitation of the underlying offense circumstances. In the plea form, defendant acknowledged having discussed the doctrine of merger with his attorney and further acknowledged that he was not giving up his right at sentencing to argue for merger. Yet, he presented no such argument and acquiesced in the imposition of sentence on both counts.
Under these circumstances, considering the record as a whole, we are satisfied, that unlike in Still, the record here does suggest a basis for the endangering conviction beyond the sexual assault. Accordingly, we decline to order merger. We also note that defendant's sentence for endangering was ordered to be served concurrent with the sexual assault conviction, and that both sentences are concurrent with the Pennsylvania conviction involving C.M. That sentence, in turn, is concurrent with the earlier Pennsylvania sentence involving the two other victims.
Defendant's remaining sentencing arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Defendant's argument that the judge improperly imposed an indeterminate term is simply not so. Judge Armstrong imposed a determinate aggregate term of nine years in New Jersey State Prison, to be served at the ADTC. Because at the time of sentencing defendant was serving his Pennsylvania sentence, the judge commented, and both counsel agreed, that upon completion of that sentence, defendant would be delivered to New Jersey to serve the balance of his term. Of course, defendant would receive the benefit of concurrency as of the date of his New Jersey sentencing.
We also reject defendant's argument that his sentence was excessive because the judge failed to find an applicable mitigating factor, namely that there were "substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense." N.J.S.A. 2C:44-1b(4). Defendant argues that this factor should have been found because he experienced a dysfunctional childhood and was himself the victim of child sexual abuse. We note that defendant did not request such a finding at sentencing, and asked that he be sentenced in accordance with the recommendation in the plea agreement. Mitigating factor (4) pertains to circumstances that are similar to those that would constitute a defense, but fall short. Experiencing an abusive childhood does not necessarily meet this standard, even if it was a factor influencing defendant's subsequent criminal behavior.
Even if that mitigating factor applied, we are well satisfied that in light of the substantial weight properly attributable to the three aggravating factors found, the risk that defendant will commit another offense, the extent and seriousness of his prior criminal record, and the need for deterrence, see N.J.S.A. 2C:44-1a(3), (6) and (9), any error in failing to apply mitigating factor (4) was harmless. Defendant admitted to the ADTC evaluator that he had victimized at least eight young boys, including some for which he has not been prosecuted. He has been convicted on three occasions of multiple sexual offenses against young boys. The aggravating factors, on qualitative analysis, would have substantially outweighed that single mitigating factor, and the sentence would have been the same.
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