STATE OF NEW JERSEY v. MICHAEL A. CAPONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5619-06T45619-06T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

vs.

MICHAEL A. CAPONE,

Defendant-Respondent.

_________________________________________

 

Submitted April 1, 2008 - Decided

Before Judges Coburn and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-07-00618.

Wayne J. Forrest, Somerset County Prosecutor, attorney for appellant (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

Wronko & Loewen, attorneys for respondent (Gilbert G. Miller, of counsel and on the brief).

PER CURIAM

The State appeals the sentence of defendant Michael A. Capone pursuant to N.J.S.A. 2C:44-1(f)(2). Defendant was convicted of second degree sexual assault, N.J.S.A. 2C:14-2(c), and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The convictions are based on voluntary sexual intercourse that defendant, then twenty-four years old, had with the victim H.S., then fifteen years old. In the plea agreement, the State agreed to recommend that defendant be sentenced as a third degree offender to a three year term of imprisonment. The trial judge, however, imposed five years probation.

The State contends that the trial court abused its discretion when it failed to impose a sentence of imprisonment on the sexual assault conviction. Due to the circumstances of the crime and defendant's mental state and background, we affirm, finding that the trial court's decision not to imprison defendant meets the standards of N.J.S.A. 2C:44-1(d).

I

Defendant met H.S. through a friend. Defendant, H.S., and the friend got together on June 26, 2005, and ended up at defendant's home. H.S. invited defendant to go upstairs. While defendant knew that she was fifteen, he nevertheless went upstairs where they had voluntary sexual intercourse. H.S. contacted defendant the next day, and they had sexual relations a second time. When defendant drove H.S. home that evening, her grandfather, with whom she lived, had called the police because he was concerned about her whereabouts, and defendant admitted to the police officers that he had engaged in sexual relations with H.S.

Since these events, defendant has been diagnosed by Dr. Pamela F. Moss, M.D., a psychiatrist, as suffering from Juvenile Onset Bipolar Disorder with symptoms that have persisted into adulthood. He is being treated with lithium and other medications. It appears that this treatment, under the supervision of Dr. Moss, along with psychotherapy sessions with Dr. Michael Libertazzo, a psychologist, has been able to stabilize defendant's mental state.

We will briefly note some pertinent points regarding defendant's history, set forth in the lengthy record before us which includes numerous mental health reports. As a child, defendant had some health and physical coordination problems, but he is now physically healthy and is described as small in stature, slight and youthful looking. From childhood, he has suffered psychological difficulties. He first saw a psychologist, Dr. Libertazzo, at the age of eight, and continued to see Dr. Libertazzo intermittently over the years. At different times during his childhood he was given various medications in an attempt to resolve his mental health problems.

Defendant was a behavioral problem in school, showing anger and frustration. Other children frequently picked on him and made fun of him. In middle school, he was relentlessly bullied and teased, and he became disruptive. Twice he was placed on home instruction, and during eighth grade, he was placed in a special education school. When defendant started public high school, he was again treated badly by students, and was placed in a private school for children with learning differences. Counsel represented below that when defendant attempted to go back to the public high school in his senior year, he lasted only five days, because he was beaten up and had his lunch money stolen on a regular basis. He returned to the private school where he graduated. He thereafter attended a community college.

Defendant suffered a number of traumatic events, including the suicide of a twenty-one year old cousin who was living with defendant's family, the death of his brother, and the death of his best friend who was killed in a motor vehicle accident. At age nineteen, defendant attempted suicide. For a few years, while in his late teens and early twenties, defendant abused both drugs and alcohol and shoplifted, but this conduct had ceased a number of years before the events in this case.

Due to his sexual contact with H.S., defendant was charged with second degree sexual assault and third degree endangering the welfare of a minor. The statutory definition of sexual assault includes sexual contact between a victim between the ages of thirteen and sixteen and someone who is at least four years older. N.J.S.A. 2C:14-2(c)(4). Here the victim was 170 days short of her sixteenth birthday and defendant was twenty-four years old, so the statute was violated.

The psychological evaluation of defendant by the Adult Diagnostic and Treatment Center found no indication of repetitive, compulsive sexual behavior, and, as a result, defendant was not eligible for sentencing and treatment at the Center as a sex offender. See N.J.S.A. 2C:47-1 to -10. This diagnosis was confirmed by Philip H. Witt, Ph.D., a psychologist who evaluated defendant for the defense. Dr. Witt found that, apart from this incident, defendant's sexual behavior pattern was entirely consensual and age appropriate. Defendant did, however, exhibit a casual attitude toward sex. Dr. Witt attributed defendant's conduct leading to these charges to impulsivity and poor judgment.

On January 6, 2006, defendant pled guilty to both counts of the indictment. In return for the guilty plea, the State agreed that it would recommend that defendant be sentenced as a third degree offender to a three-year term of imprisonment on the sexual assault charge. Second degree offenses carry a presumption of imprisonment, N.J.S.A. 2C:44-1(d), and that presumption does not change even when the offense is downgraded for sentencing purposes to a third degree offense which carries no presumption of incarceration. State v. Lebra, 357 N.J. Super. 500, 507 (App. Div. 2003). Accordingly, defendant faced a presumption of incarceration when he was sentenced.

The sentencing judge found that this presumption had been overcome pursuant to N.J.S.A. 2C:44-1(d), and on April 5, 2007, sentenced defendant to a non-custodial five year term of probation on each count to run concurrently. Defendant was ordered to undergo a drug and alcohol abuse evaluation and treatment, a psychological evaluation and treatment, and to attend anger management classes. These evaluations and treatments were to be done as part of his continuing treatment with Dr. Libertazzo and under the supervision of Dr. Moss. Defendant was required to perform eighty hours of community service and to pay restitution to the victim if requested and appropriate. The sentence also compelled defendant to register under Megan's Law, N.J.S.A. 2C:7-2, and placed him under community supervision for life. He was also required to pay various fees and assessments.

The State has appealed this sentence, arguing that "the trial court abused its discretion by sentencing defendant to non-custodial probation on his conviction for second degree sexual assault."

II

An appellate court must make "a careful and vigorous review" of a sentence. State v. Kirk, 145 N.J. 159, 175 (1996). We may not substitute our judgment for that of the sentencing court. State v. Johnson, 118 N.J. 10, 15 (1990). In our review, we must consider whether the legislative policies and sentencing guidelines have been met, whether the aggravating and mitigating factors found are supported by "competent credible evidence in the record," and whether "the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience." State v. Evers, 175 N.J. 355, 387 (2003) (quoting State v. Jabbour, 118 N.J. 1, 6 (1990)).

The statute permits the presumption of incarceration to be overcome where "having regard to the character and condition of the defendant, [the sentencing court] is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1(d).

The court's power under this statute to overcome the presumption of imprisonment is reserved to the "'truly extraordinary and unanticipated' cases where the 'human cost' of punishing a particular defendant to deter others from committing his offense would be 'too great.'" State v. Evers, supra, 175 N.J. at 389. Those circumstances "rarely exist." State v. Johnson, 118 N.J. 10, 16 (1990). The presumption is not overcome merely because a "callow" youth is facing prison. See State v. Jabbour, supra, 118 N.J. at 8-9. Further, an application to overcome the presumption must be viewed in the context of the goals of the sentencing code to help assure uniformity in sentences and in focusing on punishment for the offense rather than rehabilitation or blameworthiness of the defendant. See id. at 6; see also State v. Roth, 95 N.J. 334, 348-49, 355 (1984).

In determining whether the "serious injustice" standard has been met, the court must consider and weigh two factors: the "character and condition" of the defendant, and the role of deterrence. State v. Evers, supra, 175 N.J. at 392-95. To meet the "character and condition" standard, the court must be satisfied by clear and convincing evidence that "relevant mitigating factors [are] present to an extraordinary degree," and that they "so greatly exceed any aggravating factors that imprisonment would constitute a serious injustice overriding the need for deterrence." Id. at 393-94. The court must look at the quality of the mitigating factors and their uniqueness in the particular setting. Id. at 394. The mitigating factors must be "present to such an extraordinary degree and so greatly exceed the aggravating factors that a particular defendant is distinguished from the 'heartland' of cases for the particular offense." Ibid.

In analyzing the role of deterrence in the formula, the court must evaluate the severity of the crime and consider the nature and circumstances of the offense. Ibid. The law recognizes that "a violation of a criminal statute may be more or less egregious depending on the particular facts." Ibid. The more harmful and serious the offense and the more deliberate the conduct, the greater the need for deterrence. Ibid.

One group of cases where the presumption of imprisonment is overcome is where "the character and condition of the defendant are so idiosyncratic that incarceration or extended imprisonment for the purposes of general deterrence is not warranted." Id. at 389 (quoting State v. Jarbath, 114 N.J. 394, 408 (1989)).

In applying this analysis to the facts of this case, consideration must first be given to the mitigating factors. The trial judge found the following mitigating factors, numbered in the statute as follows: (1) defendant's conduct did not cause or threaten serious harm; (2) defendant did not contemplate that serious harm would be caused or threatened by his conduct; (4) "substantial grounds" were present to excuse or justify defendant's conduct although they do not constitute a defense; (6) defendant will compensate the victim and participate in community service; (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 the commission of the present offense"; (9) defendant, by virtue of his character and attitude, is unlikely to commit another offense; (10) defendant is particularly likely to respond to probationary treatment; and (11) imprisonment would "entail excessive hardship" to defendant. N.J.S.A. 2C:44-1(b).

The sole aggravating factor found by the trial judge was the need for deterrence under N.J.S.A. 2C:44-1(a)(9).

The record supports the trial judge's finding that the mitigating factors greatly exceeded the sole aggravating factor, distinguishing this case from the "heartland" of sexual assault cases. He found that defendant was the idiosyncratic defendant for whom the cost of imprisonment would be too great considering the totality of the circumstances and defendant's character and condition. He noted that the conviction stemmed from defendant's impulsivity and poor judgment caused by mental health problems that he has endured since childhood. In reaching the conclusion that the presumption of imprisonment had been overcome, the trial judge recounted that defendant had been subjected to ridicule and harassment by peers throughout his childhood and adolescence, and that in response defendant would become aggressive. The trial judge indicated, that considering defendant could not survive junior high school, he would expect that defendant would be subjected to almost daily abuse by other inmates. The trial judge also considered defendant's prior suicidal ideation. Taking all of these factors into account, he found that if defendant were to be imprisoned for three years, he would endure "unusual suffering" that would "greatly exceed what a relatively normal person could bear under normal circumstances." The trial judge also weighed the fact that defendant now appreciates the wrongfulness of his conduct regarding this offense. The record also reflects that defendant is responding exceedingly well to outpatient treatment now that he has been properly diagnosed.

The second step in the analysis is to determine the weight to give to the deterrence factor. See State v. Evers, supra, 175 N.J. at 394. While we in no way denigrate the seriousness of the wrong when a young man in his early to mid-twenties has sexual relations with a teenage girl between the ages of fifteen and sixteen, we note that in this case the sexual relations were initiated by the teenager and were entirely voluntary on her part. This is not a situation where an older person used his experience, power, or authority by virtue of his age to influence a minor to have sexual relations. This is not a case involving predatory behavior. Further, the age disparity is not so shocking as say a middle-aged man having sexual relations with a fifteen year old girl. We also note that the minor was relatively close to the age of consent. Although defendant's conduct was offensive and harmful, the statute encompasses a continuum of conduct that falls within its prohibition, and on that continuum defendant's conduct was at the less egregious end. As a result, the lesser weight that the trial court gave to the aggravating factor of deterrence was supported by the record.

We also note that in the other sexual assault cases where the Supreme Court has not allowed the presumption of imprisonment to be overcome, the conduct of the defendant was shockingly more egregious than the conduct involved in this case. See State v. Jabbour, supra, 118 N.J. at 3, 8-9 (holding that the presumption of imprisonment for a second degree sexual assault was not overcome where defendant had forced a four year old to masturbate him, where he placed his penis against the child's mouth and against the underwear covering her vagina); State v. Johnson, supra, 118 N.J. at 13 (finding that the presumption of imprisonment was not overcome for a first degree aggravated sexual assault, downgraded to a second degree offense for sentencing purposes, where a deaf defendant had sexually assaulted his stepdaughter when she was between the ages of seven and nine); State v. Roth, supra, 95 N.J. at 340, 368-69 (finding that the presumption of imprisonment was not overcome where defendant had sexually assaulted a young mother at knifepoint while she was taking her child out for a stroll).

The trial judge found that the "character and condition of this defendant are so idiosyncratic that they compel this court to find that a custodial sentence will not serve the purposes of specific or general deterrence." He found that this was one of the "truly extraordinary and unanticipated cases where the human costs of punishing a particular defendant in order to deter others from committing this offense would be too great." The record supports this conclusion.

Affirmed.

 

The trial judge found mitigating factor seven under N.J.S.A. 2C:44-1(b)(7) on the basis that defendant had no prior indictable arrests. We note that defendant had some minor charges in municipal court that resulted in fines and in one case community service. Defendant had two minor juvenile charges that were sent to diversionary programs and then dismissed.

We note that community notification under Megan's Law, N.J.S.A. 2C:7-2, was not required in circumstances where a twenty-one year old male had sexual relations with a fifteen year old female, since the case did not fall within the "heartland" of cases requiring community notification. In re E.I., 300 N.J. Super. 519, 525 (App. Div. 1997). In that case the sexual assault charges had been dismissed and defendant had pled guilty to endangering the welfare of a minor and possession of a handgun without a permit. Id. at 522-23.

The defendants in these cases were convicted under other subsections of the sexual assault statute. State v. Jabbour, supra, 118 N.J. at 3-4; State v. Johnson, supra, 118 N.J. at 13; State v. Roth, supra, 95 N.J. at 340.

(continued)

(continued)

14

A-5619-06T4

RECORD IMPOUNDED

May 5, 2008