On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1307-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Nugent and Newman.
Defendant Omar Villanueva appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel and other grounds for relief. We reverse and remand for an evidentiary hearing.
Between 1996 and 2000, defendant was a basketball coach at a parochial middle school. He supervised a conditioning program for students on the basketball team between twelve and fourteen years old. As part of the program, defendant weighed the boys in the school nurse's office in the nude. When school administrators learned about this practice, they contacted the county prosecutor's office, and an investigation was conducted of defendant's activities with the basketball team. Detectives obtained statements from some members of the team alleging sexual and other inappropriate conduct by defendant, in particular, on out-of-state trips. Other members of the team denied any misconduct had occurred. The prosecutor's office also searched defendant's home computer and allegedly found evidence of child pornography.
In May 2001, defendant was indicted on six counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; two counts of second-degree causing or permitting a child to engage in a prohibited sexual act, N.J.S.A. 2C:24-4b(3) and N.J.S.A. 2C:24-4b(4); and one count of fourth-degree possession of child pornography, N.J.S.A. 2C:24-4b(5)(b).
Defendant moved to dismiss the counts charging endangering the welfare of a child on the ground that the evidence presented to the grand jury was not sufficient to prove that crime. The court heard argument and denied the motion.
Defendant and his attorney then negotiated a plea agreement with the prosecutor's office for a non-custodial sentence. On April 29, 2002, defendant entered a plea of guilty to one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, by weighing the boys in the nude. In exchange for his guilty plea, the State agreed to dismiss the other charges and to recommend a sentence of five years' probation with sex offender counseling.
At the plea hearing, the court stated among other things that defendant's sentence would subject him to the sex offender registration and notification requirements of Megan's Law, N.J.S.A. 2C:7-2 to -11, and to community supervision for life, N.J.S.A. 2C:43-6.4. To establish a factual basis for entry of the guilty plea in accordance with Rule 3:9-2, defense counsel elicited the following testimony from defendant:
Q: Mr. Villanueva, during the period culminating in August of the year 2000, did you run a conditioning program for basketball students at [a parochial middle school]?
Q: How old were the children participating in the program?
A: Between the ages of twelve and fourteen Q: As part of the program were the children weighed?
Q: And they were weighed in the nurse's office?
Q: During the course of that weighing were the children in fact weighed in the nude?
Q: Was there any reason why the children needed to be weighed in the nude?
Q: And you understand that the issue of whether that constituted sexual conduct was a subject of a hearing that took place before the Honorable Joseph Conte*fn1 ?
Q: At that time Judge Conte found that the allegations were sufficient to sustain the charges. You recall that hearing?
Q: At this time you understand by pleading guilty to this offense we're stipulating the conduct that took ...