NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-0975.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Assistant Prosecutor, on the brief).
Before Judges Fisher and Grall.
Defendant was charged in 2005 with four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), as well as one count each of criminal restraint, N.J.S.A. 2C:13-2, making terroristic threats, N.J.S.A. 2C:12-3(a), and criminal trespass, N.J.S.A. 2C:18-3(b). Defendant entered into a plea agreement in November 2005, agreeing to plead guilty to one count of second-degree sexual assault; the State agreed to dismiss the remaining counts and to recommend a maximum sentence of five years in prison, subject to an 85% period of parole ineligibility. At that time, defendant also signed forms outlining, among the many other consequences of his guilty plea, the possibility in the future of civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.
Defendant entered a guilty plea pursuant to the terms of the plea agreement on February 27, 2006. At that time, the judge went to great lengths – in responding to defendant's questions – to explain some of the consequences of the guilty plea; we quote from this proceeding at some length in light of the issues raised in this appeal:
THE COURT: And finally you understand that there will be an exam done in your case by Avenel, the -- to determine whether or not you are repetitive and compulsive and amenable to treatment. Do you understand that?
MR. YANCEY: Yes.
THE COURT: And depending on the outcome of that examination you'll be sentenced accordingly. Do you under --
MR. YANCEY: What do you mean I'll be sentenced accordingly depending on the outcome of that situation?
THE COURT: If you are found sexually compulsive and repetitive and amenable to treatment, then I sentence you to the adult diagnostic center which we commonly call Avenel pursuant to statute where they give you ...