STATE OF NEW JERSEY IN THE INTEREST OF M.A.

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4490-09T1

STATE OF NEW JERSEY

IN THE INTEREST OF M.A.,

a juvenile.

______________________________________________________

October 20, 2010

 

Argued August 31, 2010 - Decided

 

Before Judges Payne and Messano.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FJ-15-1936-09-N.

 

Michael Orozco argued the cause for appellant M.A. (Bailey & Orozco, LLC, attorneys; Mr. Orozco, on the brief).

 

Samuel Marzarella, Supervising Assistant Prosecutor, argued the cause for respondent State of New Jersey (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Mr. Marzarella, of counsel and on the brief).

PER CURIAM

Defendant M.A. was adjudicated delinquent based upon conduct which, if committed by an adult, amounted to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (sexual contact achieved through "coercion[] [where] the victim does not sustain severe personal injury"), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a) (the knowing distribution of child pornography). When the offenses were committed, defendant was fourteen years old.

Defendant admitted to the Family Part judge that on January 15, 2009, while in his home in Brick, he "us[ed] coercion" to have S.H., the twelve-year old sister of defendant's best friend, J.H., "touch[] herself . . . in a sexual manner." Defendant further admitted that he "record[ed] the incident with [a] video camera," and, that on a later date in March, he "showed [the video] to . . . J.H. . . . ." Further colloquy revealed that much of the sexual activity involving S.H. and defendant's fourteen-year old co-defendant, S.R., was not visible on the videotape, although the auditory portion of the tape was clear. Defendant acknowledged that J.H. heard the tape without ever actually looking at it.

Pursuant to the plea agreement defendant reached with the State, the remaining charges of delinquency were dismissed, and the State agreed to recommend a maximum custodial sentence of one year. The judge ordered a juvenile pre-disposition report (PDR). See N.J.S.A. 2A:4A-42.

The PDR recommended that defendant be committed to the custody of the Juvenile Justice Commission (JJC) for a period of one year, that the sentence be suspended, that defendant be placed on probation for three years, that he continue to receive sex offender counseling, and that he "receive a 60[-]day term to the Ocean County Juvenile Detention Center in keeping with the idea of parity amongst codefendants with similar records."1

Instead, the judge sentenced defendant to the custody of the JJC for one year, ordered rehabilitative counseling, registration pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -21, post-incarceration supervision as required by N.J.S.A. 2A:4A-44(d)(5), and appropriate financial penalties. We denied defendant's motion to stay his sentence, accelerated the appeal, and ordered that the briefs filed by the parties on the motion be treated as merits briefs.

Before us, defendant has raised the following arguments:

I. THE SENTENCING JUDGE ABUSED HIS DISCRETION IN GIVING A ONE-YEAR SENTENCE.

 

II. THE LACK OF DISPARITY BETWEEN THE AGE OF THE ALLEGED VICTIM AND DEFENDANT WARRANTED A LESS SEVERE SENTENCE.

 

III. THE SENTENCE IMPOSED IS EFFECTIVELY PUNISHING THE DEFENDANT FOR EXERCISING HIS CONSTITUTIONAL RIGHT TO TRIAL.2

 

We have considered these contentions in light of the record and applicable legal standards. We affirm.

Defendant first argues that the judge abused his discretion by finding aggravating factors that were not supported by the record and ignoring mitigating factors that were present. We conclude that the sentence imposed does not reflect a mistaken exercise of the judge's broad sentencing discretion.

We have noted that while "'rehabilitation remains a primary goal of the . . . Code [of Juvenile Justice],'" the Code "also reflects 'a correlative emphasis on public safety and deterrence.'" State in Interest of M.C., 384 N.J. Super. 116, 128 (App. Div. 2006) (quoting State in the Interest of J.L.A., 136 N.J. 370, 377-78 (1994)). "'[P]unishment has now joined rehabilitation as a component of the [S]tate's core mission with respect to juvenile offenders.'" State v. Franklin, 175 N.J. 456, 466 (2003) (quoting State v. Presha, 163 N.J. 304, 314 (2000)).

"[I]n determining whether incarceration is an appropriate disposition" in delinquency proceedings, a judge must consider the "aggravating" and "mitigating factors" set forth respectively in N.J.S.A. 2A:4A-44a(1) and (2). See State in the Interest of C.V., 201 N.J. 281, 295 n.3 (2010) (likening the process to the balancing and weighing process utilized in sentencing "adult offenders," citing State v. Jarbath, 114 N.J. 394, 400 (1989)). In this case, the judge found the following aggravating factors: "the nature and circumstances of the act, and the role of the [defendant] therein, was committed in an especially heinous, cruel, or depraved manner"; "there was grave and serious harm inflicted on the victim and that based upon the [defendant's] age or mental capacity the [defendant] knew or reasonably should have known that the victim was particularly vulnerable or incapable of resistance due to advanced age, disability, ill-health, or extreme youth, or was for any other reason substantially incapable"; "[t]he character and attitude of the [defendant] indicate that [he] is likely to commit another delinquent or criminal act"; "[t]he need for deterring the [defendant] and others from violating the law"; "[t]he impact of the offense on the victim or victims"; "[t]he impact of the offense on the community"; and "[t]he threat to the safety of the public or any individual posed by the [defendant]." N.J.S.A. 2A:4A-44a(1)(a), (b), (c), (g), (j), (k), and (l). The judge found only one mitigating factor -- "[defendant] ha[d] no history of prior delinquency or criminal activity or ha[d] led a law-abiding life for a substantial period of time before the commission of the present act." N.J.S.A. 2A:4A-44a(2)(h).

The Legislature enacted aggravating factors (j), (k), and (l) -- the impact of the offense on the victim, the community, and the threat to the public or another individual posed by the juvenile -- at the same time that it made other substantial changes to the Code of Juvenile Justice. See Pub. L. 2001, c. 408 (effective August 1, 2002). It incorporated, for example, the same three factors into N.J.S.A. 2A:4A-43A -- requiring the judge to weigh them "[i]n determining the appropriate disposition" in any delinquency matter. At the same time, the Legislature added an additional stated purpose to the Code, specifically, N.J.S.A. 2A:4A-21(f), which now provides, among other things, that the Code "shall be construed" "[c]onsistent with the protection of the public interest, to insure . . . balanced attention to the protection of the community, [and] the imposition of accountability for offenses committed . . . ." As the Court recently observed, "[w]hen making a disposition, Family Part judges must determine the most appropriate course of action in respect of the individual to 'accomplish both rehabilitation and preservation of the family unit and at the same time protect society.'" C.V., supra, 201 N.J. at 296 (quoting M.C., supra, 384 N.J. Super. at 128) (emphasis added).

In this case, the PDR noted that defendant had been classified by his school's child study team as "multiply disabled based upon a diagnosis of A.D.H.D. . . . [and] a specific learning disability." Defendant had no prior involvement with the juvenile justice system, and lived at home with his mother, father, and older half-sister.

The PDR referenced an earlier "sex offender evaluation" performed by Dr. Howard Silverman, a psychologist. Silverman noted that defendant claimed he made the videotape to convince J.H. that his sister was "promiscuous." Silverman concluded that defendant should "not be viewed as being a sexual offender as much as a youngster with clear emotional and neurological limitations." Silverman viewed defendant as posing a "low risk of recidivism."

The PDR, however, also noted defendant's abysmal attendance record during the three school years prior to the events. Defendant was absent 198 days, and late an additional 181 days during that time. He was in ninth grade when he pled guilty and had been absent from school 57 days, and late an additional 15 days, during the current school year.

A copy of the videotape was played for the judge at sentencing.3 It suffices to say that it demonstrated defendant describing himself as the "porn star director" of the videotape, telling S.R. and S.H., in graphic and crude language, what to do, and threatening to expose S.H.'s conduct to others if she did not cooperate. Several times, both S.H. and S.R. told defendant that they did not want to participate anymore. At one point, in response to defendant's exhortation that S.R. engage in sexual intercourse with S.H., S.R. exclaimed, "That's . . . rape." The tape ended with defendant convincing S.H. to take off her pants and underwear and "touch [her]self" while he filmed her.

The PDR reflected that S.H. was receiving counseling as a result of the events. Her father, who spoke at sentencing, detailed the adverse effects that the incident had upon her, J.H., and the entire family.

At sentencing, defendant conceded that aggravating factor (g), the need to deter, might apply, though now, citing Sliverman's report, he contends that there was little need for deterrence since he presented a "low risk" of recidivism. On appeal, defendant contends none of the other aggravating factors were substantiated by the record. We disagree.

Based upon his viewing of the videotape, the judge concluded defendant was "running the show," and was the "leader . . . orchestrating something that was . . . cruel to a 12-year old girl." He further found that S.H. suffered "grave and serious" harm as a result, and, "because of th[e] depravity" of defendant's actions, "there [wa]s a likelihood that [he] . . . would commit another act, delinquent or criminal." The judge further noted that there "[wa]s a need to send out a message," referencing the goal of general deterrence codified in subsection (g) of N.J.S.A. 2A:4A-44a(1).

Having earlier noted the impact of the offenses upon S.H., her family, her school, and the community in general, the judge, in a more cursory fashion, also concluded that aggravating factors (j), (k), and (l) applied. In this regard, while we might question the adequacy of the record to support a finding that defendant posed a "threat" to the community, for example, we are firmly convinced that the overwhelming majority of the judge's conclusions regarding the aggravating factors were amply supported by the record.

Defendant also argues that the judge failed to find certain mitigating factors, specifically: N.J.S.A. 2A:4A-44a(2)(b) (his "conduct neither caused nor threatened serious harm"); (c) (he "did not contemplate [his] conduct would cause or threaten serious harm"); (g) (his willingness to "participate in a program of community service"); (i) (his "conduct was the result of circumstances unlikely to recur"); (j) (his "character and attitude" made it "unlikely [he would] commit another delinquent or criminal act"); (k)(he was "particularly likely to respond affirmatively to noncustodial treatment"); and (l) (because of his special needs, his "incarceration . . . would entail excessive hardship to" him and his family). While the judge did not discuss each of these proposed findings, it is clear that he considered all the evidence in mitigation offered by defendant at the time of sentencing.

As the Court has recently said in the adult sentencing context,

Our decisions do not require . . . that the trial court explicitly reject each and every mitigating factor argued by a defendant. It is sufficient that the trial court provides reasons for imposing its sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision.

 

[State v. Bieniek, 200 N.J. 601, 609 (2010) (citations omitted).]

 

The transcript reveals that the judge gave studied consideration of all the aggravating and mitigating factors in exercising his discretion and fashioning an appropriate sentence. He considered the many letters sent on defendant's behalf, the various psychological reports from Silverman and defendant's school system, and the PDR. The judge noted that he "was having trouble figuring out which person [he] was really dealing with," the young man who had begun his own business and was the recipient of such commendations, or the person who had coerced a twelve-year old girl into engaging in such prurient conduct, and then filmed it and showed it to her brother.

Defendant has consistently described his conduct as "foolish," "a poor choice," and "a stupid mistake." It was, undoubtedly, all of those things. But the judge concluded, and we will not second guess his judgment, that defendant's conduct was indeed much worse and more sinister. We see no basis to reverse the sentence imposed because of an alleged failure to appropriately consider the aggravating and mitigating sentencing factors.

We have some difficulty discerning defendant's second point on appeal, only part of which was specifically advanced at oral argument. He contends that the judge should have "weighed" the fact that defendant was fourteen and S.H. was only two years younger when the offenses were committed. Without any further explanation, defendant contends that this, together with the judge's familiarity with the State's original plea offer -- 60 days in custody -- and the actual sentence imposed upon S.R., requires reversal.

First, we reject any notion that the two-year age difference matters. Defendant admitted that he coerced S.H. into "touching [her]self," filmed the episode, and attempted to play the tape for J.H. Defendant would have been guilty of the same offenses if S.H. were younger, a few years older, or the same age as him.

Second, whether a prior plea offer was made is not disclosed by the record, though, apparently the State concedes it was. In any event, the issue was never raised below and we refuse to consider it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Additionally, defendant acknowledged at oral argument that the record fails to disclose any facts that support the argument he raises in Point III, i.e., that he was "punish[ed] . . . for exercising his constitutional right to trial." See e.g., State v. Pennington, 154 N.J. 344, 363 (1998) (noting "there can be neither punishment nor benefit derived from a rejected negotiated disposition"). We therefore refuse to consider it also.

Lastly, though not in a separate point heading, defendant contends that the disparity between his sentence and that imposed upon S.R. requires reversal. We note initially that defendant never explicitly advanced this argument below; instead, he argued that a probationary sentence was appropriate. He never sought reconsideration of the sentence thereafter to specifically advance this argument. We, nevertheless, consider its merits.

"Disparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). However, "[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." Ibid. (quotation omitted). "The question . . . is whether the disparity is justifiable or unjustifiable." Id. at 233. In this case, the difference between defendant's sentence and S.R.'s was justified.

Though both S.R. and defendant had no prior involvement with the juvenile justice system, defendant was, as the judge found, the "producer" and "director" of the videotape. S.R. expressed several times during the episode his reluctance to continue, at one point telling defendant that he was urging S.R. to "rape" S.H. S.R. pled guilty and agreed to testify against defendant who, at that point, had not pled guilty and apparently intended to proceed to trial. In short, there were sufficient reasons for the judge to impose two disparate sentences, both "reasonable" under the circumstances.

Affirmed.

1 S.R. pled guilty to third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), a non-Megan's Law offense, agreed to testify against defendant, and was sentenced to sixty days in the juvenile detention center. S.R. admitted that he "placed [his] fingers inside [S.R.'s] vagina," knowing that "[S.R.] [would] sustain[] some emotional distress and damage . . . as a result . . . ."

2 The first point of defendant's brief argued that emergent relief was necessary to avoid the possibility that the appeal would become moot.

3 We have been supplied with a copy and a transcript of the videotape.