On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-03-0323.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically October 19, 2011
Before Judges Baxter and Nugent.
Defendant Sarah E. Blessing appeals from her September 30, 2010 conviction on charges of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and third-degree witness tampering, N.J.S.A. 2C:28-5(a). At the time of sentencing, the judge issued an order requiring defendant to permanently forfeit the right to hold any public employment. We agree with defendant's contention that the permanent forfeiture of her right to hold public office was unwarranted because the offense in question did not "involv[e] or touch on [her] public office," as required by N.J.S.A. 2C:51-2(d). We therefore remand for resentencing, at which time the judge shall vacate the portion of defendant's sentence requiring the permanent forfeiture of her right to hold any public office. In all other respects, defendant's conviction and sentence are affirmed.
In 2006, defendant obtained her teaching certificate and was hired as a fifth grade teacher in a public school in the Scotch Plains school district. Beginning in 2005, defendant was also employed as an assistant swim coach during the winter sports season at a parochial school in Edison. Her position as assistant swim coach did not require her to have a teaching certificate. In 2008, defendant was promoted to the position of head coach of the parochial school swim team. J.B., who was born in the early part of 1992, was a student at the parochial school from 2006 to 2010 and became a member of the swim team starting in 2006.
At the end of the 2008-09 swim season, J.B.'s parents contacted defendant, whom J.B. respected, and asked defendant to speak to J.B. because J.B. was depressed. In June 2009, defendant began a sexual relationship with J.B., who was six months shy of her eighteenth birthday. That relationship continued until December 1, 2009, and involved a minimum of thirty acts of sexual intimacy including kissing each other on the lips, touching each others' breasts and vagina, and performing digital penetration and cunnilingus on each other. Defendant and J.B. also "texted/sex[t]ed" and exchanged photographs of one another on their cell phones. None of the acts in question took place during school hours or on the grounds of the Scotch Plains public school where defendant was employed.
In December 2009, when officials at the parochial school learned of defendant's sexual relationship with J.B., they reported the situation to the police. The police obtained J.B.'s consent to the interception and recording of a telephone conversation between J.B. and defendant. During that conversation, defendant instructed J.B. to delete from her cellular telephone any text messages and telephone calls from defendant. Defendant also told J.B. "that if she didn't say anything . . . there wouldn't be any issue."
Defendant was arrested on December 1, 2009. In March 2010, a Middlesex County grand jury returned a ten-count indictment charging defendant with three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c); three counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and one count of third-degree witness tampering, N.J.S.A. 2C:28-5(a).
On August 5, 2010, defendant entered a negotiated plea of guilty to one count of fourth-degree criminal sexual contact and one count of third-degree witness tampering. In exchange, the prosecutor agreed to recommend the dismissal of the remaining charges, and to further recommend a sentence of probation that would be subject to the following conditions: serving 364 days in the Middlesex County jail, avoiding all contact with J.B. and refraining from any unsupervised contact with females under the age of eighteen, successfully completing psychological counseling, and complying with all registration requirements of Megan's Law, N.J.S.A. 2C:7-2. Finally, the plea agreement specified that defendant would be subject to an order requiring her to forfeit her teaching certificate for life and to forever forfeit the right to hold public employment.
At the time of sentencing on September 30, 2010, defendant did not challenge the requirement that she permanently forfeit her teaching certificate. She did, however, argue that permanent forfeiture of her right to hold public office or public employment was not authorized by statute and that the judge should therefore refrain from so ordering. In particular, defendant argued that because her sexual relationship with the victim arose out of her job as a high school swim coach at a parochial school, and had nothing to do with her teaching position at the public school, the crime in question did not touch upon her public office, and forfeiture pursuant to N.J.S.A. 2C:51-2(d) was not required.
The judge rejected defendant's request that he refrain from ordering the permanent forfeiture of her right to hold ...