STATE OF NEW JERSEY v. DANIEL FIGUEROA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4550-08T44550-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL FIGUEROA,

Defendant-Appellant.

________________________________

 

Submitted: July 6, 2010 - Decided:

Before Judges Stern and Wefing.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County, Indictment No. 07-08-1245.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant entered a negotiated guilty plea to attempted third degree endangering the welfare of a child in exchange for the dismissal of a count of second degree attempted sexual assault and second degree luring and a recommended sentence of parole supervision for life. The factual basis and recommendation were accepted by the trial judge who nevertheless urged defendant at sentencing to file an appeal because she felt that "there could be a legal question as to whether or not [defendant] . . . abandoned any efforts" to commit the crime and "a significant question on appeal as to whether or not" defendant took enough affirmative action to commit an attempt.

Defendant appeals and argues: "The factual basis provided by defendant did not support a conviction for attempted endangering the welfare of a child[,]" and "the application of parole supervision for life to this defendant constitutes cruel and unusual punishment." He acknowledges that he did not move to withdraw his plea or take any action in the trial court to advance the present challenges. Moreover, he affirmatively agreed to the disposition. As a result, we do not know if the present arguments would be material to the requested relief or if defendant understands that if he is successful he would again be facing two charges carrying a presumption of imprisonment. See N.J.S.A. 2C:44-1d. See also State v. Johnson, 182 N.J. 232, 244 (2005); State v. Cheung, 328 N.J. Super. 368, 370 (App. Div. 2000).

Defendant, then twenty-four years of age, communicated over the internet with a person working for the television program "Dateline NBC" and posing as a fourteen-year-old girl, and eventually arranged to meet "her" in Mantoloking, New Jersey for purposes of engaging in intercourse. After arriving at the house, defendant drove away. In his factual basis, the following was said:

Q. I would like to draw your attention to the period between February 22nd, 2007 and March 30th, 2007. Where were you living at that time?

A. Living in Brooklyn.

Q. You were living in Brooklyn. And did you have access to a computer?

A. At the time around there; not frequent, but, yeah, I did.

Q. You did have access and you got into chat lines, didn't you?

A. Yes.

Q. And you contacted someone you thought was between the ages of 13 and 16; isn't that correct?

A. Yes.

Q. And you had sexual conversations with that particular individual, right?

A. Yes.

Q. And as the end result of those conversations, you came down to Mantoloking; isn't that correct?

A. Yes.

Q. Because the young lady who identified herself as Pretty Dragon Fire gave you an address in Mantoloking?

A. Yes.

Q. And was it your intention or thought that you might have sexual relations with this person?

A. Yes.

Q. And when you came down, it was in the evening; isn't that correct?

A. Yes.

Q. Do you recall what day it was?

A. I think was March, end of March.

Q. Sometime later in March?

A. Yes.

Q. And at first you were going to go to the house; is that correct?

A. Yeah.

Q. But then you got a little suspicious and you drove away; isn't that correct?

A. More like uneasy.

Q. You got a ticket in Lavalette; is that correct?

A. Yes.

Q. And you didn't feel at the time you got the ticket that everything was Kosher, as it were?

. . . .

Q. So after getting -- after getting the ticket in Lavalette, you became suspicious; is that correct?

A. Yes.

Q. And you drove north towards Mantoloking; isn't that correct?

A. Yes.

Q. And you did turn to where the address was where this young girl was waiting for you; is that correct?

A. Yes.

Q. And you felt that she was a juvenile; is that correct?

A. Yes.

Q. And then you left that area. You didn't go into the house, did you?

A. Yes, I left the area.

Q. And you went up to Point Pleasant; isn't that correct?

A. Yes.

Q. And at Point Pleasant, you were surrounded by other police officers; isn't that correct?

A. Yes, I was.

Q. And they advised you that you had been watched; isn't that correct?

A. At that moment, no. But later on, yes.

Q. But you were advised what was going on?

A. Yes.

Q. And you subsequently found out that To Catch a Predator was involved; is that correct? One of those shows from the television.

A. Yeah. Later on, though. Not at that exact moment. But, yeah, later on.

Q. But your purpose in coming to New Jersey from the Bronx, Brooklyn -- coming from Brooklyn, was originally to go down and see this young girl in Mantoloking; isn't that correct?

A. Yes.

The judge also explained to defendant the consequences of Megan's Law including the requirements of parole supervision for life and registration, and of the failure to follow these requirements. See N.J.S.A. 2C:43-6.4a, d, e, and f. Defendant said he understood them, and does not claim there was any mistake or lack of clarity in the explanation.

As to the plea, suffice it to say that defendant's communications on the internet and drive from Brooklyn to the home of one who he thought to be a female between the ages of thirteen and sixteen for the purposes of having sexual relations, in our view, was a "substantial step" towards committing the crime of endangering a minor. See N.J.S.A. 2C:5-1a; N.J.S.A. 2C:24-4a. See also State v. Perez, 177 N.J. 540, 553-55 (2003); State v. Davis, 390 N.J. Super. 573, 589-90 (App. Div), certif. denied, 192 N.J. 599 (2007).

 
There is no dispute that N.J.S.A. 2C:43-6.4, relating to parole supervision for life, expressly includes attempted violations of N.J.S.A. 2C:24-4a within the concept of parole supervision for life. We also note that the negotiated disposition includes parole supervision for life as THE sentence (in addition to mandatory penalties) to be imposed. However, it is far from clear that parole supervision for life can constitute an exclusive sentence. See N.J.S.A. 2C:43-2; 2C:43-6.4a. See also e.g., Doe v. Poritz, 142 N.J. 1, 76 (1995). In any event, in this case defendant challenges the constitutionality of the very disposition he negotiated, and states "[t]he sentence of parole supervision for life must therefore be vacated" without suggesting a remedy. Moreover, there is no indication in this record that defendant wants to withdraw his plea and face prosecution for second degree crimes. Under these circumstances, we remand for further proceedings at which the parties can address the relevant issue regarding disposition. See, e.g., State v. Johnson, supra, 182 N.J. at 244.

Remanded.

The judgment should have referred to N.J.S.A. 2C:24-4a as well as N.J.S.A. 2C:5-1. The original charges should also be corrected whenever judgment is entered after the remand.

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A-4550-08T4

RECORD IMPOUNDED

August 3, 2010