On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FJ-15-1936-08-N.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
Defendant M.A. was adjudicated delinquent based upon conduct which, if committed by an adult, amounted to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (sexual contact achieved through "coercion [where] the victim does not sustain severe personal injury"), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a) (the knowing distribution of child pornography). When the offenses were committed, defendant was fourteen years old.
Defendant admitted to the Family Part judge that on January 15, 2009, while in his home in Brick, he "us[ed] coercion" to have S.H., the twelve-year old sister of defendant's best friend, J.H., "touch herself . . . in a sexual manner." Defendant further admitted that he "record[ed] the incident with [a] video camera," and, that on a later date in March, he "showed [the video] to . . . J.H. . . . ." Further colloquy revealed that much of the sexual activity involving S.H. and defendant's fourteen-year old co-defendant, S.R., was not visible on the videotape, although the auditory portion of the tape was clear. Defendant acknowledged that J.H. heard the tape without ever actually looking at it.
Pursuant to the plea agreement defendant reached with the State, the remaining charges of delinquency were dismissed, and the State agreed to recommend a maximum custodial sentence of one year. The judge ordered a juvenile pre-disposition report (PDR). See N.J.S.A. 2A:4A-42.
The PDR recommended that defendant be committed to the custody of the Juvenile Justice Commission (JJC) for a period of one year, that the sentence be suspended, that defendant be placed on probation for three years, that he continue to receive sex offender counseling, and that he "receive a 60[-]day term to the Ocean County Juvenile Detention Center in keeping with the idea of parity amongst co-defendants with similar records."*fn1
Instead, the judge sentenced defendant to the custody of the JJC for one year, ordered rehabilitative counseling, registration pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -21, post-incarceration supervision as required by N.J.S.A. 2A:4A-44(d)(5), and appropriate financial penalties. We denied defendant's motion to stay his sentence, accelerated the appeal, and ordered that the briefs filed by the parties on the motion be treated as merits briefs.
Before us, defendant has raised the following arguments:
I. THE SENTENCING JUDGE ABUSED HIS DISCRETION IN GIVING A ONE-YEAR SENTENCE.
II. THE LACK OF DISPARITY BETWEEN THE AGE OF THE ALLEGED VICTIM AND DEFENDANT WARRANTED ...