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State v. A.T.C.

Superior Court of New Jersey, Appellate Division

April 19, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
A.T.C., Defendant-Appellant.

          Submitted February 28, 2018

          On appeal from Superior Court of New Jersey, Law Division, Warren County, Accusation No. 15-05-0305.

          Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

          Gurbir S. Grewal, Attorney General, attorney for respondent (Jana Robinson, Deputy Attorney General, of counsel and on the brief).

          Before Judges Alvarez, Currier, and Geiger.

          OPINION

          GEIGER, J.S.C. (temporarily assigned).

         Defendant A.T.C. appeals from a May 13, 2016 judgment of conviction and order denying his motion for a modification of sentence. After a review of the arguments in light of the record and applicable principles of law, we affirm defendant's convictions and remand for resentencing.

         I.

         We summarize the salient facts and procedural history from the record. In October 2014, the Passaic County Internet Crime Task Force conducted an investigation into the distribution of child pornography and identified defendant as a person of interest based on numerous child pornography files he had made available for others to download. A search warrant was subsequently executed at defendant's residence on March 9, 2015. When officers explained their presence and the nature of their child pornography investigation, defendant stated, "Might as well put the bracelets on me, yeah I did it." Based on the files found on defendant's computers and his admission that he had routinely viewed child pornography during the preceding seven years, defendant was arrested and charged with four counts of second-degree distribution of child pornography, N.J.S.A. 2C:24-4(b)(5)(a)(i), and four counts of third-degree possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b).

         Defendant resided with his girlfriend and her minor child, M.L., for seven years preceding his arrest. When interviewed by investigators, defendant confessed to possessing pornographic videos of M.L. on his computer. He admitted to videotaping M.L. when she was in the bathtub, photographing and video recording M.L.'s vaginal area, and transferring the images to his computers. Defendant further revealed his conduct with M.L. began when she was ten years old, and the most recent incident occurred two months before his arrest, when she was twelve years old.

         Investigators interviewed M.L. the same day. She disclosed that defendant began sexually abusing her when she was eight years old and had touched her vagina on numerous occasions, with the last incident occurring less than one month prior to the interview. M.L. asked defendant to stop, but he did not. Subsequent investigation revealed defendant took additional pornographic videos of M.L. with his cellphone.

         On May 28, 2015, defendant waived his right to indictment and trial by jury and pled guilty to an accusation that charged him with first-degree aggravated sexual assault of a child under thirteen, N.J.S.A. 2C:14-2(a)(1) (count one), and second-degree endangering the welfare of a child by distribution of child pornography, N.J.S.A. 2C:24-4(b)(5)(a) (count two), in exchange for a recommended sentence of concurrent twenty-year prison terms without the possibility of parole.

         During his plea hearing, defendant admitted digitally penetrating the vagina of M.L. in or about August 2014, when she under the age of thirteen. Defendant also admitted that during the same time period he downloaded, viewed, and distributed child pornography containing images of children engaging in prohibited sexual acts through a "file sharing program."

         Defendant was evaluated by Dr. Mark Frank at the Adult Diagnostic and Treatment Center (ADTC) in Avenel, New Jersey for the purpose of determining his eligibility for sentencing under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10 (requiring diagnosis of repetitive and compulsive behavior, amenability to sex offender treatment, and willingness to participate in such treatment). In a July 24, 2015 report, Dr. Frank opined defendant engaged in a "pattern of sexual attraction towards juveniles" and his "criminal sexual behavior was performed compulsively." Dr. Frank concluded defendant was eligible for sentencing under the purview of the Sex Offender Act given the "repetitive, compulsive elements discerned, " the need for sex offender treatment, and defendant's willingness to participate in a program of therapy at the ADTC.

         Prior to sentencing, defendant moved to modify the twenty-year term without parole provided for in the plea agreement. He sought to remove this matter from sentencing under the Jessica Lunsford Act (JLA), N.J.S.A. 2C:14-2, or, in the alternative, for the court to "exercise its inherent supervisory capacity" to craft a lesser sentence. Defendant argued he should be sentenced within the ordinary first-degree range to a prison term of ten to twenty years, subject to an 85% parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, because the mandatory minimum prison term and parole ineligibility requirements imposed by the JLA did not apply to his case.

         More specifically, defendant contended an amendment enacted on January 17, 2014, with an effective date of July 1, 2014, L. 2013, c. 214, § 3 (the July 2014 amendment), competed with a second amendment, which was enacted and became immediately effective on May 15, 2014, L. 2014, c. 7, § 1 (the May 2014 amendment), with regard to sentencing defendants convicted of aggravated sexual assault of a victim less than thirteen years old. Defendant claimed the amendments created an ambiguity and argued the rule of lenity should apply.

         The earlier enacted July 2014 amendment made a minor definitional modification to subsection (a)(7) of the statute, changing the language from "[t]he victim is one whom the actor knew or should have known was physically helpless, mentally incapacitated, or had a mental disease or defect" to "[t]he victim is one whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated, or had a mental disease or defect." N.J.S.A. 2C:14-2(a)(7) (emphasis added).

         The May 2014 amendment, by enacting the JLA, imposed much longer mandatory minimum prison terms without parole eligibility. Prior to the May 2014 amendment, a person convicted of aggravated sexual assault of a victim under thirteen years old was subject to the ordinary first-degree sentencing range of ten to twenty years in prison and to NERA. Defendant claimed, because the earlier enacted July 2014 amendment became effective after the May 2014 amendment, and because the July 2014 amendment did not include the sentencing provisions added by the May 2014 amendment, NERA, rather than the JLA, should apply. Defendant argued the amendments created an ambiguity and the rule of lenity should apply. Defendant also claimed the May 2014 amendment violated the separation of powers clause of the New Jersey Constitution.

         On May 13, 2016, the trial court issued an order and opinion denying defendant's motions. The trial court rejected defendant's argument that the sentencing provisions of the May 2014 amendment should not apply due to the subsequent effective date of the July 2014 amendment. The trial court reasoned:

While it may be true that the JLA does not mention [the July 2014 amendment], the amendments address separate and distinct provisions of the statute and can stand alone. Clearly, the Legislature did not change the sentencing provisions by enacting the [May 2014 amendment] for six weeks, which would be pointless. The effective dates of the two amendments to the same statute altering different provisions were surely meant to stand on their own without any language to the contrary. Since the plain meaning of the statute is clear, the analysis stops short of requiring the use of extrinsic evidence to decipher its interpretation. Moreover, a plain reading of the statute does not lead to an absurd result, nor is it at odds with the overall statutory scheme - it rather imposes a harsher penalty on those individuals convicted of specifically enumerated aggravated sexual assaults.

         The trial court analyzed the sentencing requirements imposed by the Legislature, noting:

Subsection (d) of N.J.S.A. 2C:14-2 authorizes the Prosecutor, in consideration of the interests of the victim, notwithstanding the mandatory sentencing provision in the statute, to negotiate a plea agreement of not less than fifteen (15) years with fifteen years of parole ineligibility; however, there is no indication that the prosecutor is required to impose a fifteen year sentence; rather, it is in the prosecutor's discretion to impose a sentence under the mandatory minimum twenty-five years. In this case, the prosecutor chose to impose a mid-range sentence of twenty years, having considered the victims. Furthermore, subsection (d) of N.J.S.A. 2C:14-2 (under [the May 2014 amendment]) states, in pertinent part, "the court may accept a negotiated plea agreement and upon such conviction shall impose the term of imprisonment and period of parole ineligibility as provided for in the plea agreement, and may not impose a lesser term of imprisonment or parole, or a lesser period of parole ineligibility than that expressly provided in the plea agreement." Pursuant to a plain reading of this statute, the [c]ourt may accept the plea agreement, and it must only impose the sentence afforded by the plea agreement; the [c]ourt may not, however, override the Prosecutor's decision to offer a mid-range sentence by sentencing Defendant to an even lesser term of imprisonment. The JLA took effect on May 15, 2014; Defendant was subsequently convicted of aggravated sexual assault in violation of this statute on May 28, 2015.

         The trial court also rejected the argument that the JLA violated the separation of powers clause, concluding adequate checks and balances remain in place when sentencing a defendant under the JLA.

         On the same day, defendant appeared for sentencing. The trial court found the offenses were committed in a "cruel and depraved manner" and the victim "was really incapable of exercising normal physical and mental power of resistance, " noting that at the time of the offenses, the victim was only twelve or thirteen years old.[1] The court applied aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense, and the role of actor therein); two, N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of harm inflicted on the victim); three, N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and seriousness of offenses he is being convicted of); and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterring the defendant and others from violating the law). The judge found aggravating factors one and two were not duplicative "given the circumstances here." The court also found mitigating factors six, N.J.S.A. 2C:44-1(b)(6) (defendant has compensated or will compensate the victim for the injury the victim sustained); and seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before committing present offense). The trial court gave "great weight" to aggravating factors one, two and nine, slight weight to mitigating factor six, and concluded the aggravating factors outweighed the mitigating factors.

         In accordance with the plea agreement, defendant was sentenced to concurrent twenty-year prison terms, without parole eligibility, to be served in whole or in part at the ADTC; parole supervision for life; mandatory parole supervision under NERA. Defendant was also required to comply with the registration requirements under Megan's Law, N.J.S.A. 2C:7-1 to -23, and prohibited from having contact with M.L. pursuant to Nicole's Law, N.J.S.A. 2C:14-12 and N.J.S.A. 2C:44-8. This appeal followed.

         Although originally submitted for review on an excessive sentencing oral argument calendar, Rule 2:9-11, the appeal was transferred to a plenary ...


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