On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-02-0401, Accusation No. 350-06.
The opinion of the court was delivered by: Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern,*fn1 C.L. Miniman and Simonelli.
Defendant L.V. appeals from a final judgment of conviction for second-degree aggravated assault and second-degree reckless manslaughter entered on May 14, 2007, in which concurrent five-year sentences and three-year parole terms were imposed subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. She contends she ought to have been sentenced as a third-degree offender under N.J.S.A. 2C:44-1f(2) and State v. Megargel, 143 N.J. 484 (1996). We conclude that the sentencing judge mistakenly exercised his discretion when he refused to sentence defendant as a third-degree offender. We reverse the sentence imposed, exercise our original jurisdiction, resentence defendant as a third-degree offender, and remand for entry of an amended judgment of conviction.
On March 28, 2006, defendant, who was eighteen years old at that time,*fn2 pled guilty to the subject offenses pursuant to a plea agreement. The circumstances leading to the charges filed against her were detailed in the presentence investigation (PSI) report and the plea allocution. Defendant, who has an IQ of between forty-four and seventy-five and is moderately to mildly retarded, was born on September 9, 1987, in El Salvador where she lived with her grandparents and brothers until December 2000 when she moved to West New York.
According to information contained in the PSI, which was not contested by defendant, on September 13, 2005, West New York police officers responded to a report that an infant may have fallen from a window. Police responded to the scene and observed an infant lying at the bottom of an air shaft on a pile of empty cigarette cartons, which had cushioned his fall. The infant boy's umbilical cord was still attached and he had survived the fall. He suffered bruises to his ribs and head; it was possible he had a skull fracture, but that was not established in the record on appeal. The police also discovered the mummified remains of another baby at the bottom of the airshaft.
In canvassing the building, the police entered defendant's apartment with her brother's permission. Defendant's father, J.J.V., told them defendant had been in bed with the flu since the day before. In speaking with the police, defendant denied being the mother of the baby until she was told he was still alive and being transported to Jersey City Medical Center. She then admitted she was his mother and she was transported to Palisades Medical Center. Police found blood in the bathroom, particularly around the window, and on scissors retrieved from the vanity shelf. Defendant's parents both denied knowing that she was pregnant.
Defendant ultimately informed the police her father sexually molested her for the first time when she was perhaps nine and he was visiting their family in El Salvador, or possibly when she was eleven and was visiting her parents in the United States. The initial molestation was confined to touching. Defendant's father threatened to kill her if she told anyone. Soon after she moved to West New York in December 2000, her father raped her, which he thereafter did several times a week, if not almost daily, until she was eighteen.
When her father had a day off from work, he would pick her up at school at lunchtime, take her home, rape her, and bring her back to school. After school and on weekends when defendant's mother was working, her father would rape her. Occasionally, the rapes occurred during the night when other family members were asleep. Sometimes he used physical force. Although defendant would cry and tell him "No," he threatened to kill her mother if she told anyone. Defendant was afraid of her father and never reported the abuse. By and large, her father confined her to their apartment and would not let her date, associate with girlfriends, or talk on the telephone.
Defendant became pregnant when she was about fifteen and gave birth to a baby girl in September 2003. Her father raped her throughout the pregnancy. The night her first baby was born, she had a stomach ache, which became increasing painful over the next two hours. She went to the bathroom and thought she was having a bowel movement. She began pushing and felt something come out of her vagina. It was only then she realized she was giving birth. The baby girl fell into the toilet. She was under the water and not crying; L.V. did not think her baby was alive. After tugging on the umbilical cord and delivering the placenta, defendant thought about taking her baby and leaving her somewhere she would be found, but did not know how to get her baby out of the bathroom without having her family discover her.
When defendant opened the bathroom door, her father was there and told her to throw her baby out the window. He told her it was her boyfriend's baby; she denied having a boyfriend. He said she had to throw her baby out the window or he would kill her. When defendant was interviewed by the police two years later, she said she complied with her father's demand. Her father had praised her, saying she "did well." This was the baby whose mummified remains were found at the bottom of the airshaft.
After the birth of her first baby, the rapes became more aggressive and painful. Defendant stated her father "treated me very bad." Her father resumed threatening to kill her if she did not allow him to continue the rapes. She asked her father if it was possible for her to get pregnant again and he replied he did not care, she would have to do the same thing if she did. By now, she was having nightmares about the baby and the sexual abuse and had frequent thoughts and flashbacks about them. She began to have suicidal thoughts, felt socially isolated, and would wake up several times each night perspiring with her heart pounding. She considered attempting suicide in July 2002, took a knife from the kitchen to cut her veins, but put the knife back in the drawer because she thought her mother would suffer.
In 2005 defendant began to experience the signs of early pregnancy and her abdomen began to grow. Her father would touch her stomach, saying there was a baby there. She thought about running away, telling a friend, telling her mother, or going to a hospital, but she did not know how to get there and was afraid her parents would find out. On September 12, 2005, three days after her eighteenth birthday, she began having abdominal pain and stayed home from school, lying in bed all day. She knew she was about to deliver and was crying. Her father told her to calm down and not say anything. He told her she had to do the same thing as with the first baby.
At 5:00 a.m. the next morning, the pain got worse and she delivered the same way, although this time the baby started crying. Her father was knocking on the locked bathroom door, which he unlocked after the birth and entered the bathroom. Her father cut the umbilical cord and told defendant she had to do the same thing with this baby as the last one. She or her father took the baby from the toilet and she held her baby. Her father said, "You can't have that baby." She did not want to throw this second baby out the window, but her father kept saying she had to do it.
Her father pushed her to the window he had opened and told her to throw the baby out the window. Defendant put the baby on the windowsill and either the baby fell or she dropped him. Defendant was crying, but she could hear the baby crying all the way down and then continue to cry at the bottom of the air shaft. Her father yelled at her for not throwing the baby harder, and she said she was going down to pick him up. Her father grabbed her and said, "No." At that point, she felt dizzy because she was bleeding copiously. An hour or so later, the police arrived.
After her arrest, defendant was ordered on September 16, 2005, by the court to undergo a psychiatric examination to determine whether she was competent to stand trial and had the mental capacity to form the requisite mens rea for the crimes with which she had been charged. She was admitted to the Ann Klein Forensic Center on October 28, 2005, where she was evaluated and treated with Paxil for depression. On February 9, 2006, she was found competent to stand trial and was subsequently discharged to the Hudson County Jail on March 13, 2006, with a prescription for Paroxetine for her depression. She subsequently entered her guilty pleas to second-degree aggravated assault and second-degree reckless manslaughter.
In conducting a voir dire of defendant, the judge informed her that the offenses to which she was pleading carried prison terms of five to ten years and were subject to NERA, which would require defendant to serve eighty-five percent of any sentence imposed. He explained that he had discretion to sentence her to a term from five to seven years, which was the stipulated maximum in the plea agreement to which the State was free to speak.*fn3
He further explained that at the time of sentencing, the State could argue for seven years and her attorney could argue for one degree less, but that five years was the minimum sentence for a second-degree crime. Defendant expressed that she understood the sentencing ramifications of her pleas.
At her plea allocution, L.V. testified that her daughter was moving after her birth, which she had previously admitted. She testified that her father cut the umbilical cord and forcefully "told defendant to throw her daughter out the window." She did not comply and her father then threw the baby out the window. Defendant did not assist him, but she admitted she did nothing to protect her baby. Her father told her if she called the police, he would kill her mother. L.V. admitted throwing her son out the window, but stated her father ordered her to do so. She did not intend to injure her son, but knew he might be injured or die.
After the judge told defendant he would not accept her plea if she was not guilty, defendant consulted with her attorney and then testified she knew her father was going to throw her baby out the window, but she did not scream for help, call the police, or tell her mother, anyone at school, or anyone outside her family. She knew her baby might die, but remained silent for two years. Defendant did not waive any defenses as part of her plea bargain. Sentencing abided the preparation of a PSI report.
In the PSI report, the probation officer advised the judge defendant had difficulty reading and writing her native language and did not speak, read, or write English. The probation officer reported defendant said it was her father who threw the babies out the window, but defendant felt she was guilty because she did not report it. Defendant had been diagnosed with Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder, moderate to mild mental retardation, and performed at a first-grade level.
The probation officer requested that the judge take into account the defendant was substantially influenced by an individual not only more mature than her but who also was an authority figure, which served as a strong provocation. Furthermore, the defendant's language barrier, cultural issues, having only resided in the United States since 2000 and cognitive limitations as well as the unlikeliness [sic] of such circumstance recurring be considered.
Attached to the PSI report were (1) a March 7, 2001, Confidential Psychological Evaluation prepared by Rosemary Barroso-Ramirez, School Psychologist with the West New York Public Schools Child Study Team; (2) extensive records, evaluations, and Individualized Education Programs prepared by the West New York Public Schools at various times prior to defendant's arrest; (3) a Criminal Responsibility Report prepared for the court on February 10, 2006, by Elizabeth A. Hogan, M.D., from the Ann Klein Forensic Center, who is a Diplomat of the American Board of Psychiatry and Neurology with a certification in the subspecialty of forensic psychiatry; (4) a February 10, 2006, Competency to Stand Trial Evaluation prepared for the court by Dr. Hogan; (5) a Psychological Report prepared by Philip H. Witt, Ph.D. for defendant on March 8, 2006; (6) a Discharge Summary prepared on March 13, 2006, by Dr. Hogan relevant to defendant's October 28, 2005, admission to the Ann Klein Forensic Center; and (7) a March 15, 2006, Addendum to Criminal Responsibility Evaluation prepared for the court by Dr. Hogan. There were no reports prepared at the behest of the State that were included in the PSI report or in the record on appeal.
The author of the March 7, 2001, psychological evaluation concluded that defendant's IQ was fifty-seven and determined that she scored the age equivalent of less than five years, three months. After correcting for a small degree of error, the author of the report determined that defendant's true performance IQ was between forty-four and fifty-six. On other tests, defendant did "significantly poorer than her age peers." The author concluded that defendant was in the range of moderate mental retardation and that a program of special education should be considered for her.
Dr. Hogan reviewed extensive records, many of which are not in the record on appeal. She reported on February 10, 2006, that defendant, who was in the twelfth grade in high school, functioned at a first-grade level. Psychological testing done in February 2001 indicated defendant scored at an age equivalent of less than five years, three months. On June 1, 2004, she was evaluated as having a severe language disorder with severe deficits in comprehension and syntax. On intelligence testing done at the Ann Klein Forensic Center, defendant attained a quotient score of 72, which placed her with the third percentile rank. Dr. Hogan opined her true IQ score lies within the upper limits of mild mental retardation to the lower limits of the borderline range. Her abilities in math did not reach beyond the second-grade level. Dr. Hogan diagnosed her with PTSD, major depressive disorder, and mild mental retardation. Dr. Hogan medicated defendant for depression while she was at the Ann Klein Forensic Center.
Dr. Hogan opined that an insanity defense was not available to defendant because she understood the nature and quality of her act on September 13, 2006. "However, it is my opinion that the circumstances surrounding her behavior are so extreme and severe that they need to be considered when assessing her mental state at the time of the alleged offense" (emphasis added). Dr. Hogan continued:
[Defendant] was suffering from a mental illness at the time of her arrest.... The symptoms of her mental illness along with the severe trauma she was experiencing likely impaired her judgment and decision making ability at the time of the alleged offense. For years, [defendant] had been severely traumatized by her father. She was placed in fear for her life and for the life of her mother. She felt powerless towards her father and unable to stop the ongoing abuse. This fear and feeling of powerlessness likely affected her ability to remove herself from the abusive situation, inform others about her ...