On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FJ-03-1313-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Defendant-juvenile C.P.H. appeals from an order of September 23, 2008, denying his petition for post-conviction relief (PCR) under Rule 3:22. We reverse and remand for an evidentiary hearing.
On January 2, 2002, the sixteen-year-old juvenile was charged with first-degree aggravated sexual assault and related offenses. On July 11, 2002, he admitted guilt to second-degree sexual assault and two petty disorderly persons charges of harassment. The Family Part sentenced him to a suspended term of one year detention at Jamesburg Training School for juvenile offenders and three years probation with specified conditions.
The October 4, 2002 juvenile order of disposition has no check-off for Megan's Law notification, but it specifies sex specific treatment. On the date of sentencing, the court's recording equipment did not function. As a result, we do not have a record of what the Family Part judge said at that proceeding regarding Megan's Law, or other matters relevant to the current appeal. The juvenile does not dispute, however, that the registration and notification requirements of Megan's Law, N.J.S.A. 2C:7-2 to -5, apply to his juvenile adjudication of a sex offense. See In re Registrant J.G., 169 N.J. 304, 319 (2001) (Megan's Law applies to juveniles). He contends that he was not adequately advised by his attorney regarding the permanent nature of those requirements.
The sex charges were brought because the juvenile engaged in sexual intercourse with a sixteen-year-old girl at a New Year's Eve party on January 1, 2002. The girl was highly intoxicated and allegedly did not consent to the sexual act. When her parents learned of the incident, they took their daughter to the police to report that she had been sexually assaulted. The police interviewed and took statements from several teenagers who attended the party. Through that investigation, defendant and two other boys were charged with juvenile offenses.
The police investigation determined that the party was unsupervised, and teenagers were drinking alcohol and engaging in sexual activity. According to the victim's statement, she went to sleep in a bedroom after 2:00 a.m. She woke up to the noise of pounding on the door and found C.P.H. on top of her and having sexual intercourse with her. She said she did not consent to the sex.
A female friend of the victim told the police that the victim was passed out in an upstairs hallway at about 11:30 p.m., and the friend helped her to a bed. A few hours later, she heard a boy outside the bedroom door say that C.P.H. was inside with the victim and he was going in next, implying that he intended to have sexual intercourse with the girl while she was sleeping. The victim's friend found the door locked, and she knocked loudly. After shouting and cursing back at the friend, C.P.H. eventually opened the door and came out with his pants undone. The victim was extremely groggy, and she later told the friend that she had been raped. Another girl argued with C.P.H. to leave the house, which he refused to do, and C.P.H. was then seen throwing a condom on the floor.
One of the male witnesses told the police that he and three other boys, including C.P.H., noticed that the victim was asleep in the bedroom. C.P.H. and another boy stayed in the room while the witness and the fourth boy went downstairs. He later heard the commotion of pounding on the door and the argument about C.P.H. leaving the house. He saw C.P.H. throw a condom on the floor.
The boy who stayed in the bedroom with C.P.H. was the same boy who allegedly was overheard outside the bedroom door waiting to go in after C.P.H. He told the police that he and C.P.H. woke the victim up. He said the victim and C.P.H. began to kiss and engage in sexual activity. He described the girl as awake but "out of it." He said he left the room and went downstairs.
Other teenage witnesses saw less of what happened. They gave the police information about the party, taking sides with either the victim or C.P.H. Several claimed that they saw the victim earlier in the night engaged in kissing and suggestive sexual activity with C.P.H. One of the victim's friends said she heard boys talking earlier in the night about taking sexual advantage of the victim because she was drunk and they did not respect her, but that group of boys did not include C.P.H.
Other witnesses alleged that the victim engaged in sexual activity with other boys at the party ...