STATE OF NEW JERSEY v. SARAH E. BLESSING

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1306-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SARAH E. BLESSING,

Defendant-Appellant.

________________________________________________________________

A

November 4, 2011

rgued telephonically October 19, 2011 -

Decided

 

Before Judges Baxter and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-03-0323.

 

Raymond A. Grimes argued the cause for appellant (Mr. Grimes, attorney, of counsel and on the brief).

 

Daniel I. Bornstein, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Mr. Bornstein, of counsel and on the brief).

 

PER CURIAM

Defendant Sarah E. Blessing appeals from her September 30, 2010 conviction on charges of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and third-degree witness tampering, N.J.S.A. 2C:28-5(a). At the time of sentencing, the judge issued an order requiring defendant to permanently forfeit the right to hold any public employment. We agree with defendant's contention that the permanent forfeiture of her right to hold public office was unwarranted because the offense in question did not "involv[e] or touch[] on [her] public office," as required by N.J.S.A. 2C:51-2(d). We therefore remand for resentencing, at which time the judge shall vacate the portion of defendant's sentence requiring the permanent forfeiture of her right to hold any public office. In all other respects, defendant's conviction and sentence are affirmed.

I.

In 2006, defendant obtained her teaching certificate and was hired as a fifth grade teacher in a public school in the Scotch Plains school district. Beginning in 2005, defendant was also employed as an assistant swim coach during the winter sports season at a parochial school in Edison. Her position as assistant swim coach did not require her to have a teaching certificate. In 2008, defendant was promoted to the position of head coach of the parochial school swim team. J.B., who was born in the early part of 1992, was a student at the parochial school from 2006 to 2010 and became a member of the swim team starting in 2006.

At the end of the 2008-09 swim season, J.B.'s

parents contacted defendant, whom J.B. respected, and asked defendant to speak to J.B. because J.B. was depressed. In June 2009, defendant began a sexual relationship with J.B., who was six months shy of her eighteenth birthday. That relationship continued until December 1, 2009, and involved a minimum of thirty acts of sexual intimacy including kissing each other on the lips, touching each others' breasts and vagina, and performing digital penetration and cunnilingus on each other. Defendant and J.B. also "texted/sex[t]ed" and exchanged photographs of one another on their cell phones. None of the acts in question took place during school hours or on the grounds of the Scotch Plains public school where defendant was employed.

In December 2009, when officials at the parochial school learned of defendant's sexual relationship with J.B., they reported the situation to the police. The police obtained J.B.'s consent to the interception and recording of a telephone conversation between J.B. and defendant. During that conversation, defendant instructed J.B. to delete from her cellular telephone any text messages and telephone calls from defendant. Defendant also told J.B. "that if she didn't say anything . . . there wouldn't be any issue."

Defendant was arrested on December 1, 2009. In March 2010,

a Middlesex County grand jury returned a ten-count indictment charging defendant with three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c); three counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and one count of third-degree witness tampering, N.J.S.A. 2C:28-5(a).

On August 5, 2010, defendant entered a negotiated plea of guilty to one count of fourth-degree criminal sexual contact and one count of third-degree witness tampering. In exchange, the prosecutor agreed to recommend the dismissal of the remaining charges, and to further recommend a sentence of probation that would be subject to the following conditions: serving 364 days in the Middlesex County jail, avoiding all contact with J.B. and refraining from any unsupervised contact with females under the age of eighteen, successfully completing psychological counseling, and complying with all registration requirements of Megan's Law, N.J.S.A. 2C:7-2. Finally, the plea agreement specified that defendant would be subject to an order requiring her to forfeit her teaching certificate for life and to forever forfeit the right to hold public employment.

At the time of sentencing on September 30, 2010, defendant did not challenge the requirement that she permanently forfeit her teaching certificate. She did, however, argue that permanent forfeiture of her right to hold public office or public employment was not authorized by statute and that the judge should therefore refrain from so ordering. In particular, defendant argued that because her sexual relationship with the victim arose out of her job as a high school swim coach at a parochial school, and had nothing to do with her teaching position at the public school, the crime in question did not touch upon her public office, and forfeiture pursuant to N.J.S.A. 2C:51-2(d) was not required.

The judge rejected defendant's request that he refrain from ordering the permanent forfeiture of her right to hold public office. The judge reasoned:

I don't have any discretion in this matter. A court shall enter an order of forfeiture pursuant to the statute.

 

The law does not allow me any discretion in this matter. I have no choice. Not only as a part of the plea, if we went to trial and she were convicted, I have to forfeit her job.

 

Not her job. She's barred from public employment as a consequence. . . . [A]t this point I think I have -- I'm legally bound to impose that forfeiture.

 

. . . .

 

Even if it didn't touch upon her public office, it's a third-degree crime. I think also under that provision, she would be subject to forfeiture.

 

On appeal, defendant raises the following claim:

I. THE TRIAL COURT ERRED IN APPLYING N.J.S.A. 2C:51-2(d), WHICH MANDATES THE PERMANENT FORFEITURE OF PUBLIC EMPLOYMENT, BECAUSE NEITHER OFFENSE INVOLVED OR TOUCHED UPON DEFENDANT'S TEACHING POSITION.

 

II.

Defendant advances the same argument she presented in the Law Division, namely, her sexual relationship with the victim would have occurred whether or not she was employed as a public school teacher; her public employment had absolutely no bearing on the commission of the offense, as the offense did not occur on school grounds or during school hours; and her relationship with the victim arose out of her position as swim coach at a parochial school, not from her position as a teacher at a public school. She maintains that the requirements of N.J.S.A. 2C:51-2(d) were not satisfied, as the offense did not touch upon or involve her public office or position, and therefore the order of forfeiture must be reversed.

The State urges us to uphold the order of forfeiture entered pursuant to N.J.S.A. 2C:51-2(d), arguing that there was a "direct relationship between defendant's qualifications as a public school teacher and her responsibilities as a swim coach." The State further argues that as a swim coach, defendant was entrusted with the same responsibility of instilling moral values in her students as she was in connection with her public employment in Scotch Plains. The State contends:

It is fundamental that every teacher bears a personal and professional responsibility to the students he or she teaches, coaches, and encounters. . . . [T]eachers must lead by example, they must instill proper moral values, they must teach life skills, and they must not only assist students in the formulation of worthy, positive goals, but they must also create an emotionally and physically safe and healthy environment to pursue those goals.

 

Defendant turned her back on the responsibilities she bore to her profession, her community, and the students she taught and coached. She abused the trust inherent to her supervisory role, and she capitalized on the naivet and emotional insecurity of her child-victim. Instead of helping a teenager deal with difficult emotional issues so often associated with young adulthood, defendant took advantage of the victim's vulnerability and used the victim for her own sexual gratification. Then, to make matters worse, she repeatedly told the victim to withhold information and lie about their relationship so she could avoid apprehension, prosecution and punishment. Defendant's offenses bear a direct relationship to her duties and responsibilities as a teacher. Permanent disqualification from public employment was mandatory.

 

As the question before us is an issue of law, the judge's opinion is entitled to no deference and we review the order of forfeiture de novo. State v. Hupka, 203 N.J. 222, 231 (2010); State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010).

N.J.S.A. 2C:51-2 has two subsections that bear upon this appeal. The first, subsection (a)(1), provides that any person holding public office who is convicted either of an offense involving dishonesty or of a crime of the third degree or above, shall forfeit his or her present employment. Subsection (a)(1) states:

A person holding any public office, position, or employment, elective or appointive, . . . who is convicted of an offense shall forfeit such office or position if: [h]e is convicted . . . of an offense involving dishonesty or of a crime of the third degree or above[.]

 

[N.J.S.A. 2C:51-2(a)(1) (emphasis added).]

 

Because defendant was convicted of witness tampering, a third-degree crime, subsection (a)(1) required the forfeiture of her then-present position at the Scotch Plains public school. Defendant does not claim otherwise.

The second, subsection (d), specifies that a person holding public office shall be "forever disqualified" from public employment if convicted "of an offense involving or touching on his public office, position or employment." In relevant part, subsection (d) provides:

In addition to the punishment prescribed for the offense, and the forfeiture set forth in subsection (a) of N.J.S.A. 2C:51-2, any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions.

 

[N.J.S.A. 2C:51-2(d).]

 

In the forfeiture statute itself, the Legislature included a definition of the conduct that must be present before the offense in question will be deemed to "involve or touch upon" the particular office held. N.J.S.A. 2C:51-2(d) provides the following definition:

As used in this subsection, "involving or touching on his public office, position or employment" means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person.

 

This definitional language "signals strongly that the disqualification provision was intended to be contingent on a conclusion that the conviction was related, directly and specifically, to the position held." Hupka, supra, 203 N.J. at 233. As the Court observed in Hupka, the sponsor of the 2007 amendment included along with the bill a Sponsor's Statement that reads:

"When an individual commits a crime wholly unrelated to his or her public office, the crime ordinarily cannot be characterized as involving or touching on the public office."

 

[Id. at 234 (quoting S. 14 (Sponsor's Statement), 212th Leg. (2007); Assembly 20 (Sponsor's Statement), 212th Leg. (2007)).]

 

The 2007 amendments were intended to create a more precisely-crafted, and indeed narrower, definition of when an offense involves or touches upon a defendant's public office. Id. at 233-35.

Hupka has significant bearing on the present appeal because the Court squarely held that a permanent disqualification from public office should not be ordered merely because the criminal conduct at issue appears to be incompatible with the traits of trustworthiness, honesty, integrity and obedience to law and order that are expected of a public employee. Id. at 238-39. In Hupka, the Court considered whether an off-duty sheriff's officer who engaged in sexual intercourse with a female acquaintance at her apartment without her consent should be required to forfeit his office after he pled guilty to fourth-degree criminal sexual contact. Id. at 226. In affirming the conclusion of the Appellate Division majority that permanent forfeiture of office was unwarranted, the Court quoted with approval a portion of that opinion, in which we reasoned:

Turning to the circumstances of this case, we conclude that defendant's offense clearly did not directly relate to his "performance in" the position of sheriff's officer or police officer. The offense occurred while off-duty, in a private home involving someone defendant knew, as opposed to a member of the public, and had no nexus to his positions in law enforcement. Nor was defendant's offense "related directly to circumstances flowing from" his positions. Defendant did not use or threaten the use of his offices in any way to commit the offense. He did not display or utilize any indicia of his offices at any time. The offense was not related to any circumstance that flowed from defendant being a sheriff's officer or a police officer.

 

[Id. at 239 (quoting State v. Hupka, 407 N.J. Super. 489, 509-10 (App. Div. 2009)).]

 

The Court rejected the argument that the commission of a sexual offense by a police officer is "incompatible with his duty as a law enforcement officer," and thus requires the permanent forfeiture of office. Id. at 240. In rejecting such an expansive interpretation of the terms "involving" or "touching on," the Court observed that the State's proposed interpretation of the statute was inconsistent with the 2007 legislative revisions. Ibid. The Court specifically rejected the State's argument that because the defendant engaged in conduct that was incompatible with the traits of character expected of a police officer, the offense necessarily "involved" or "touched upon" his office. Id. at 243. The Court reasoned:

[D]efendant's factual circumstances do not support an "involving or touching" conclusion in respect of his offense. Defendant did not use his office or its trappings in any way in the commission of his offense. We reject application of some ill-defined incompatibility-with-duties analysis . . . untethered to its specific facts[.]

 

[Id. at 242-43.]

 

The argument advanced here bears striking similarity to the approach rejected by the Court in Hupka. The State argues that defendant's position as a swim coach in a parochial school requires her to possess the very same job qualifications that are vital to her employment as a public school teacher; and that by preying upon one of her parochial school team members, she signaled a willingness to grossly deviate from the standards expected of a teacher, thereby exposing her public school students to the same risk of harm as she had already inflicted on J.B. While we do not disagree with the premise that a person who preys upon one victim is certainly capable of preying upon others, the State's argument strikes us as the same "ill-defined incompatibility-with-duties analysis . . . untethered to its specific facts" that was rejected by the Court in Hupka. Id. at 243.

In particular, defendant's sexual conduct with J.B. did not directly, or even indirectly, relate to defendant's position as a fifth grade teacher at a public school in Edison; J.B. had no connection to the Scotch Plains school district where defendant worked; defendant used none of the trappings of her public position to commit the offense; defendant did not meet J.B. through her position as a public school teacher; and defendant's offenses against J.B. would have occurred regardless of whether defendant was employed as a public school teacher in Scotch Plains or not. The offenses in question therefore did not "involv[e] or touch[] upon" defendant's public employment as those terms are used in N.J.S.A. 2C:51-2(d); and defendant's crimes against J.B. were not "related directly to [defendant's] performance in, or circumstances flowing from the specific public . . . employment held by [defendant]." N.J.S.A. 2C:51-2(d). The judge erred when he held to the contrary.

The judge also erred when he held that because defendant was convicted of a third-degree crime, permanent forfeiture of office was required. Such a finding confused the provisions of N.J.S.A. 2C:51-2(a)(1) -- which requires the forfeiture of an individual's present position when he or she is convicted of a third-degree crime or higher -- with the provisions of N.J.S.A. 2C:51-2(d), which addresses permanent forfeiture of office. The order requiring permanent forfeiture of office lacked legal justification and must be reversed. We therefore remand for the entry of an amended judgment of conviction (JOC) that vacates the N.J.S.A. 2C:51-2(d) permanent ban on defendant's right to hold public office or employment.

Reversed and remanded for the entry of an amended JOC.1 In all other respects, the sentence is affirmed.

1 We are mindful of the opinions in State v. Hernandez, 338 N.J. Super. 317, 323 (App. Div. 2001), and State v. Cheung, 328 N.J. Super. 368, 370 (App. Div. 2000), both of which hold that when a defendant acknowledges during the plea colloquy that a particular penalty is applicable, he or she cannot later challenge its applicability without first moving to vacate the plea. Defendant did not follow such a procedure here. When we asked the parties during oral argument whether Hernandez and Cheung should have barred defendant from proceeding in the fashion she has, the State responded that because defendant did not concede during the plea colloquy that her conduct satisfied the requirements of N.J.S.A. 2C:51-2(d), Hernandez and Cheung are inapplicable.