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State of New Jersey In the Interest of B.P.C.

July 18, 2011

STATE OF NEW JERSEY IN THE INTEREST OF B.P.C. STATE OF NEW JERSEY IN THE INTEREST OF B.V.C.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket Nos. FJ-18-597-09 and FJ-18-598-09.

The opinion of the court was delivered by: Fuentes, J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 16, 2011

Before Judges Fuentes, Ashrafi and Nugent.

The opinion of the court was delivered by FUENTES, J.A.D.

These are back-to-back appeals, consolidated for the purpose of this opinion.

B.V.C. (hereinafter referred to by the fictitious name "James") was adjudicated delinquent by the Family Part based on five charges that, if committed by an adult, would have constituted fourth degree criminal sexual contact, N.J.S.A. 2C:14-3, two disorderly persons offenses of simple assault, N.J.S.A. 2C:12-1a(1), and two petty disorderly persons offenses of harassment, N.J.S.A. 2C:33-4b. B.P.C. (hereinafter referred to by the fictitious name "Daniel") pled guilty to committing these same acts of delinquency.

By way of disposition, the court placed James on probation for a period of eighteen months; ordered him to perform forty hours of community service; directed him not to have any contact with the victims, nor unsupervised contact with children under the age of twelve; and placed him on electronically monitored home-detention for thirty days. With respect to Daniel, the Family Part placed him on probation for one year and ordered him not to have any contact with the victims.

Because James and Daniel were fourteen years old at the time they committed the act of delinquency predicated on fourth degree offense of criminal sexual contact, the Family Part directed them to register as sex offenders for the remainder of their lives pursuant to N.J.S.A. 2C:7-2b(2) (commonly known as "Megan's Law").*fn1

Although the parties raised a number of arguments on appeal, the principal question we have been asked to determine is whether the conduct of these two juveniles constitutes "sexual contact" as defined in N.J.S.A. 2C:14-1d, or merely youthful "horseplay" that, although patently offensive, is nevertheless devoid of the sexual connotation underpinning the offense of criminal sexual contact, N.J.S.A. 2C:14-3. Because an adjudication of delinquency based on criminal sexual contact triggers the registration requirements under N.J.S.A. 2C:7-2b(2), we are keenly aware that our decision may have profound, lifelong ramifications for these two boys as well as others similarly situated.

In addressing this question, we are mindful that the evidence supporting these adjudications of delinquency differs because James was adjudicated delinquent after a trial, while Daniel's adjudication was based on the factual basis he gave at the plea hearing. The core salient facts presented by the State nevertheless established that James and Daniel physically held down two twelve-year-old boys and placed their bare buttocks on the faces of the two younger boys, resulting in physical contact between their bare buttocks and the victims' faces. The trial court found James and Daniel committed these acts for the purpose of degrading or humiliating the younger boys. This finding supports an adjudication of delinquency based on criminal sexual contact.

In relevant part, our state's criminal code defines "sexual contact" as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1d. In determining whether the State met its burden of proof with respect to proving an "intentional touching," we are satisfied the conduct engaged in by these two juveniles is sufficient to sustain an adjudication of delinquency predicated on criminal sexual contact.

The Family Part erred, however, when it denied James's post-conviction relief (PCR) petition. The affidavit submitted by James's trial attorney in support of this PCR petition made out a prima facie case of ineffective assistance of trial counsel. We are thus compelled to remand this matter for the court to conduct an evidentiary hearing to resolve the factual and legal issues raised by trial counsel's inadequate performance.

We also remand Daniel's adjudication of delinquency because he was not fully informed of the registration requirements under N.J.S.A. 2C:7-2b(2) before he pled guilty to an act of delinquency predicated on fourth degree criminal sexual contact.

I Common Core of Facts

On the afternoon of November 26, 2008, a group of sixth-grade boys rode their bicycles to a nearby food market where they bought sodas and snacks. As they left the store, one of the boys (identified here as W.R.) picked up a scooter that was "placed in front of the [market.]" At this point, a group of older eighth-grade boys consisting of James, Daniel, and two others approached the sixth-graders.

According to W.R., James asked him: "Why are you stealing my scooter?" When W.R. denied he was trying to steal the scooter, James told him: "Drop and give me ten," which W.R. understood to mean he had to do ten push-ups. When W.R. did not comply, the older boys pushed him up against a small shed. At this point, an unidentified woman came out of the store and asked what was happening. James told the woman that W.R. had stolen his scooter and his dog; Daniel told her that W.R. had "killed his family." The woman then went back inside the store.

The physical confrontation escalated from this point. W.R. testified that the four older boys "picked [him] up and carried [him] across the street . . . [to a] flag pole by the fire station." The boys again told W.R. to "drop and give me ten." W.R. asked: "Will you stop?" to which one of the older boys allegedly responded: "Yes." Convinced the taunting would stop, W.R. complied and performed ten push-ups.

After W.R. completed doing the push-ups, the older boys challenged W.R. and his three sixth-grade companions to a basketball game. Although the precise terms of the match are unclear, James told a state investigator that if the younger boys won, the older boys would jump in the nearby river; if the older boys won, they would "beat up" the younger boys. James told the investigator, however, that he and his fellow eighth-graders were "just kidding" about beating up the sixth-graders, and that they "thought [the younger boys] knew we were [kidding]." W.R. believed that if the younger boys won, the older boys would stop bothering them. The older boys won.

After the basketball game ended, W.R and his fellow sixth-graders noticed the older boys talking in a group. Suspecting that "something was up," W.R. and the rest of the sixth-graders ran away; the older boys gave chase. James eventually caught up with a sixth-grader identified here as O.D. James told O.D. the older boys would stop bothering the younger boys if O.D. stuck his face in the nearby river "for a few seconds." O.D. testified that he did this because he was scared.

W.R. testified that after O.D. stuck his head in the river, an eighth-grader identified as S.H. got on top of W.R., physically holding him down, punching him, head-butting him, slapping him, and making him say things like "I like chodes*fn2 up the butt." W.R. gave the following description of what occurred next:

PROSECUTOR: At some point, did [James] approach your area?

A. Yes.

Q. And when he approached your area, what did he do?

A. They told him to put his butt in my face.

Q. Okay. They told him. Who told him?

A. [Daniel]. [Daniel] told them.

Q. [Daniel] told [James] to put his butt in your face?

A. Yes.

Q. And did [James] do that?

A. Yes. Well, he put -- at first he farted in my face.

Q. Okay. So first he farted in your face. And then did he put his butt in your face?

A. Yes.

Q. Did he put his bare butt in your face?

A. Yes.

Q. And how did he put his bare butt in your face?

A. He -- [S.R.] was holding me down, so I couldn't move. So he kind of pulled part of his pants down and sat on me, sat on my face.

Q. Okay. With his bare butt?

A. Yes.

Q. Okay. At any point did any other part of his crotch area touch your face?

A. Yes.

Q. What part?

A. He put his penis in, like there, in my mouth.

Q. Okay.

THE COURT: Indicating --Q. Can you show the judge?

THE COURT: Yeah. Okay, Did it go into the mouth? Or touch the lips? [W.R.] It -- just the lips.

THE COURT: Touched the lips? Or --well, you're putting your finger inside your mouth.

[W.R.] Well -THE COURT: And I want to know if --[W.R.] Like, the lips, the lips.

THE COURT: Did it go in --[W.R.] No.

THE COURT: Just on the outside of the lips, or the inside of the lips? [W.R.] Kind of the inside the lips [sic].

Q. Before this happened, before his penis touched your mouth, did you hear anybody say anything?

A. Like telling him to do?

Q. Well, did you hear anybody tell [James] to do that?

A. Yes.

Q. Who?

A. [Daniel].

Q. Okay. And when [Daniel] told [James] that, did he do it?

A. Yes. [(Emphasis added).]

In addition to seeing what happened to W.R., sixth-grader A.N. also witnessed James commit similar offenses against O.D.

In response to the prosecutor's questions, A.N. gave the following account of what he saw:

PROSECUTOR: Was [O.D.] struggling when [James] put his bare ...


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