On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-02-0255.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Reisner and Hayden.
Defendant S.C. appeals the April 23, 2010 order denying his petition for post-conviction relief (PCR). For the reasons that follow, we reverse and remand for an evidentiary hearing.
The record reveals that on January 17, 2007, a Hudson County grand jury returned an indictment against defendant for two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(1), third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and child abuse, N.J.S.A. 9:6-1 and 9:6-3. The indictment was based on charges that on September 18, 2006, defendant, then thirty-three years old, had sexual intercourse with his fifteen-year-old cousin against her will. In the same indictment, defendant's wife was charged with fourth-degree hindering an investigation. N.J.S.A. 2C:29-3a(5).
On June 11, 2008, as a result of a plea bargain, defendant pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2c(1), and a disorderly persons harassment offense stemming from another indictment. In return for the plea, the State agreed to dismiss all other charges pending against defendant as well as the charge against his wife. At the plea hearing, the judge explained to defendant that he would be subject to Megan's Law*fn1 and would be sentenced to parole supervision for life.
During the hearing, defendant asked the judge whether the plea would affect his ability to live with his wife and children.
Defendant: I was led to believe by prior counsel, before I obtained [present trial counsel], if I was to cop to anything or plead guilty to anything with Megan's Law, I would not be able to reside in the household with my wife and children. That's why I refused to plead to anything before.
The Court: That's not necessarily true, sir. It wouldn't be by virtue of Megan's Law that you could have a problem. In that case there is no problem because there is no evidence that it involves your own child. The Division of Youth and Family Services operates separately, independently from the criminal law. If this case involved your child [then] the likelihood is the Division of Youth and Family Services would move in the Family Court to bar you from residing with your child. That can happen. It does happen in some cases because they involved the children of the defendant. But it is not - being on Megan's Law isn't going to have that result. That's got nothing to do with it.
The Division of Youth and Family Services acts on their own to do whatever they do. In this case, there's no indication that your daughter would be at risk. So it is not likely the Division of Youth and Family Services would do anything because it does not involve your daughter, but can I guarantee you anything. . . . I can only tell you Megan's Law does not require it.
The Court: That's the direct answer to your question. Megan's Law ...