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State v. M.K.B.

Superior Court of New Jersey, Appellate Division

April 4, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
M.K.B., [1] Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2012

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-05-0533.

Miles Feinstein argued the cause for appellant.

Marc A. Festa argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent; Mr. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

Before Judges Fuentes, Graves, and Harris.

PER CURIAM.

Pursuant to a negotiated agreement with the State, M.K.B. pleaded guilty to one count of third degree endangering the welfare of a child under the age of sixteen, N.J.S.A. 2C:24-4(a). The victim was defendant's biological sister, who alleged defendant began to sexually molest her when she was approximately four years old. The molestation continued until she was approximately twelve years old. Consistent with the plea agreement, the trial court sentenced defendant to a term of four years and ordered that he submit to lifetime community supervision under N.J.S.A. 2C:43-6.4 and register as a convicted sex offender pursuant to N.J.S.A. 2C:7-2.

While awaiting sentence, defendant filed a motion to withdraw his guilty plea pursuant to Rule 3:9-3(e). The motion was supported by letters from the victims[2] recanting their prior accusations. Defendant's sister claimed that she had "lied about all these things" against her brother because she blamed him for causing the family to relocate from Hawthorne to Mahwah. Defendant submitted a certification claiming he was "extremely pressured and coerced" to plead guilty by his attorney.

After considering the evidence presented and applying the standard of review established by the Court in State v. Slater, 198 N.J. 145, 150 (2009), the trial court denied defendant's motion. Defendant appeals from the order denying his motion. We affirm. The following facts will inform our analysis.

I

On October 24, 2005, Passaic County Prosecutor's Office Special Victims Detectives Mathew Gallup and Emil Trione received a referral from the Hawthorne Police Department involving the sexual molestation of a minor. The detectives responded to the home of then-fifteen-year-old B.B. to investigate her claims that she had been sexually molested by her older brother, who was then thirty years old. B.B. also told the detectives that her older cousin K.C. had also been molested by defendant. After some preliminary investigation and discussion, the detectives transported B.B., her parents, and defendant to the offices of the Passaic County Special Victims Unit so that they could give formal sworn statements regarding the allegations.[3]

Detective Trione interviewed B.B., who at the time resided with her parents and four brothers; defendant is the oldest of the four brothers. Her earliest recollection of defendant's molestation dates back to when she was between four and five years old. She shared a bedroom with three of her brothers; the room contained two sets of bunk beds; she slept in the bottom bunk of one of the sets.

As reported by Detective Trione, B.B. told him that she remembered defendant coming into the bedroom one night. He "unzipped her pajamas and touched the inside of her vagina with his hands and mouth." Although she pretended to be a sleep during the molestation, she attempted to "squirm" away from defendant. B.B. was twelve years old the last time defendant sexually abused her. The incident occurred while she was using her grandmother's bedroom who was visiting family in Turkey at the time. Although the room had a deadbolt lock, defendant was able to gain entry. The following account of the event is taken from a summary of B.B.'s formal statement prepared by Detective Gallup:

After he entered the bedroom, [defendant] proceeded to touch the inside of [B.B.'s] vagina with his hand. During this incident, [defendant] didn't say anything to [B.B.] as [she] pretended to be asleep. But [B.B.] did attempt to squirm away during this incident. [B.B.] commented to Detective Trione that [defendant] would touch her routinely; in fact it happened too many times to count. [B.B] advised Detective Trione that [defendant] felt her breast and made her touch his penis on one occasion. [B.B.] recalled that she was sleeping in the bunk beds closer to the window one night [and when] she woke up and she had [defendant's] penis in her hand. When she awoke[] she remembered [defendant] telling her that he loved her.

Defendant was arrested on October 24, 2005, and charged with first degree aggravated sexual assault and second degree sexual assault, involving his sister B.B.; with respect to his cousin K.C., [4] defendant was charged with third degree aggravated sexual contact, criminal sexual contact, and endangering the welfare of a child. He was released on $200, 000 bail bond secured by the family residence. Defendant was indicted on these same charges on May 2, 2006.

Defendant appeared before the trial court on August 13, 2007, with his attorney, who announced to the court that defendant was prepared to plead guilty pursuant to a negotiated agreement with the State. At the time, under count three of the indictment, defendant was charged with second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), which provides in relevant part as follows:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child . . . is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

[(Emphasis added) (internal citations omitted).]

As explained by the prosecutor, the State agreed to amend count three of the indictment to remove the language emphasized above, thus permitting defendant to plead guilty to third degree endangering the welfare of a child. This would allow the trial court to sentence defendant to a custodial term of no less than three nor more than five years in state prison. N.J.S.A. 2C:43-6(a)(3). By contrast, the range for a second degree offense, as the indictment originally charged, authorized a sentencing range of no less than five and no more than ten years. N.J.S.A. 2C:43-6(a)(2). The State agreed to dismiss the remaining counts in the indictment.

The trial judge questioned defendant directly to verify the terms of the agreement and to satisfy himself that defendant was acting freely of his volition, without pressure or promises not otherwise reflected in the terms of the plea agreement. In this respect, defendant answered "yes" to all of the trial judge's questions concerning his understanding of the plea agreement and his willingness to plead guilty to third degree endangering the welfare of a child (his sister) freely and without coercion of any kind. The judge also emphasized to defendant that, in the judge's opinion, defendant was receiving "two major benefits" under the plea agreement:

[THE COURT]: [O]ne count of aggravated criminal sexual assault[5] is being dismissed. That's a first degree offense. On that offense, if you were found guilty, if you had gone to trial and if you were found guilty, you faced up to 20 years in State Prison ...

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