STATE OF NEW JERSEY v. FRANKLIN NICOLOUDAKIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0383-08T40383-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANKLIN NICOLOUDAKIS,

Defendant-Appellant.

___________________________________________________________

 

Submitted August 3, 2010 - Decided

Before Judges Graves and Yannotti.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No.

07-08-0842.

Franklin Nicoloudakis, appellant pro se.

Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney for respondent (Dorothy

Hersh, Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Franklin Nicoloudakis appeals from an order dated August 5, 2008, denying his motion for reconsideration of his sentence. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.

On January 29, 2008, when he was fifty years old, defendant pled guilty to fourth-degree stalking, in violation of N.J.S.A. 2C:12-10(b). In exchange for defendant's plea, the State agreed to recommend a non-custodial probationary sentence, conditioned upon no contact with the victim and counseling. During the plea hearing on January 29, 2008, defendant provided the following factual basis for his plea:

Q. Mr. Nicoloudakis, drawing your attention to the fall of 2006, were you in the City of Trenton at that time?

A. Yes, I was.

Q. And were you driving your car?

A. Yes, I was.

Q. And as you were driving your car, did you notice two young men walking along the street?

A. Yes . . . I did. I'm sorry.

Q. And . . . do you recall noticing a person that's listed in the indictment as A.R.?

A. Yes, I do.

Q. And were you attracted to him?

A. Yes, I was.

Q. And did you pull your car in front of -- in a driveway that blocked their pathway?

A. It abuts the -- I guess you could say blocked it or abutted it, but -- yes.

Q. And did you attempt to have a conversation with him?

A. Yes, I did.

Q. And was he with a companion of a similar age?

A. Yes. Yes.

Q. And were you advised by them that they did not want to talk to you?

A. Yes. The other person . . . that was with him said something like that, yes.

Q. And you were a stranger, you didn't know these people?

A. No, I did not.

Q. And drawing your attention to later on in 2007, April to be specific, did you see A.R. again?

A. Yes, I did.

Q. And did you position your car in front of him on a side street so he would have to pass you?

A. I parked on a side street that abuts his pathway.

Q. And did you attempt to engage him in conversation again?

A. Yes, I did.

Q. And did you ask him about whether or not he was interested in car auctions?

A. Yes, I did.

Q. And did he again suggest that he didn't talk to strangers and run away?

A. He told me, "I do not talk to strangers."

Q. And . . . did you later find out that A.R. was 16 years of age?

A. Yes, I did.

Q. And would you agree that the difference in your age and the fact that you're strangers and the fact that he already had conveyed to you that he didn't wish to speak to you, would cause a reasonable person of his age to be afraid of you?

A. Yes, I do.

Q. And afraid that you may commit bodily injury?

A. Yes.

At defendant's sentencing hearing on March 31, 2008, the court noted it had considered the attachments to the presentence report, including a psychiatric evaluation prepared by Dr. Charles F. Martinson, which stated:

Mr. Nicoloudakis indicated that in 1999 he was charged with Solicitation, Luring, Endangerment of Children and Corruption in Philadelphia. Mr. Nicoloudakis acknowledged that on that occasion he approached the fifteen-year-old victim and made comments of a sexual nature to the victim. Mr. Nicoloudakis was ultimately found guilty of corrupting the morals of a minor and was placed on three years probation. In November, 2002 he was placed on Megan's Law status and required for the succeeding fifteen years to report his whereabouts to the police annually. Mr. Nicoloudakis denied any history of sexual relations with an underage person. He indicated: "I know how damaging it is psychologically."

. . . .

Mr. Nicoloudakis is a fifty-year-old adult male whose sexual orientation is homosexual. He is on Megan's Law status following a conviction in Pennsylvania on charges of Corrupting the Morals of a Minor. Since that time he has approached a juvenile boy on at least two occasions because of a sexual attraction to that individual. Mr. Nicoloudakis does deny awareness that the victim, in the case, was an underage individual. In the course of therapy Mr. Nicoloudakis has developed a better understanding of the socially unacceptable and inappropriate nature of his behavior. He continues to work with a therapist and also through participation in Sexoholics Anonymous as a way of stemming these impulses: Certainly this therapy should continue. If Mr. Nicoloudakis adheres to this treatment plan, I do not regard him as a risk, at present, to others in the community.

The court found that aggravating factors three, six, and nine (N.J.S.A. 2C:44-1(a)(3), (6), and (9)), were outweighed by mitigating factors eight, ten, and eleven, (N.J.S.A. 2C:44-1(b)(8), (10), and (11)), and it sentenced defendant to a five-year probationary term. In addition, the court ordered that "[p]robation will be subject to the standard conditions plus no contact with the victim and continued counseling." The court explained the "lengthy probation sentence" would, "in some respects . . . provide a greater level of protection to the public than [an] 18-month [jail term], which is the maximum sentence allowed for a fourth[-]degree crime."

On appeal, defendant presents the following arguments:

POINT I

THE STALKING STATUTE IMPOSES A MANDATORY PRESUMPTIVE CONCLUSION THAT IS UNCONSTITUTIONAL. WHERE THE MENS REA IS LESS THAN KNOWINGLY AS TO THE COURSE OF CONDUCT PRECIPITATING ONE'S FEAR OF HARM, A PRESUMPTION OF GUILT ATTACHES.

POINT II

NO WARNING ISSUED BY AUTHORITIES PRIOR TO PROSECUTION.

POINT III

TRAVELING TO A PARTICULAR LOCATION WITH THE EXPECTATION OF SEEING SOMEONE THERE APPEARS TO BE A SUB SILIENTO [SIC] ELEMENT OF STALKING.

POINT IV

THE STATUTE CONTAINS ASPECTS THAT ARE VAGUE AS APPLIED.

POINT V

THE LAW IS VAGUE AS APPLIED BECAUSE IT MAKES NO DISTINCTION BETWEEN A RANDOM SERIES OF UNPLANNED SIGHTINGS AND THOSE THAT ARE PREMEDITATED.

POINT VI

'REASONABLE FEAR', 'IMPLIED THREATS' ARE NEVER DEFINED.

POINT VII

THE CONVICTION WAS FOR A NON-VIOLENT INCOHATE [SIC] FOURTH DEGREE OFFENSE. PROBATION IS PUNISHMENT CARRYING ONEROUS RESTRICTIONS ON LIBERTY. THE MAXIMUM PROBATION (FIVE YEARS) FOR A FIRST TIME STALKING CONVICTION WAS EXCESSIVE, UNREASONABLE AND DISPROPORTIONATE.

POINT VIII

THE PROBATION OFFICER HAS IMPOSED ONEROUS AND UNFAIR DEMANDS WHICH GO WAY BEYOND THE CONDITIONS OF PROBATION.

POINT IX

THE PHONY KIDNAPPING[] ALLEGATION.

POINT X

THE STATE SOUGHT TO PUNISH APPELLANT FOR BEING A REGISTERED SEX OFFENDER WHO SPOKE TO A MINOR. SIMULTANEOUSLY, APPELLANT[']S FIRST AMENDMENT RIGHTS TO FREEDOM OF ASSOCIATION AND FREE SPEECH WERE INFRINGED.

POINT XI

THE [PRETRIAL CONFERENCE] REVEALS THE REAL MOTIVE FOR PROSECUTION.

POINT XII

CLEAR EXAMPLE OF SMEARING WITH FALSEHOOD.

POINT XIII

FREEDOM OF EXPRESSION/ASSOCIATION WERE TRAMPLED.

POINT XIV

FIRST AMENDMENT RIGHTS WERE SUBVERTED.

POINT XV

WHY FIRST AMENDMENT RIGHTS WERE SUBVERTED.

Based on our review of the record, the briefs, and the applicable law, we conclude the trial court conscientiously complied with the requirements of Rule 3:9-2 when defendant entered his guilty plea; defendant's sentence is neither unfair nor unreasonable; and defendant's arguments are clearly without merit. R. 2:11-3(e)(2). We add only the following comments.

Defendant claims the five-year probationary term for fourth-degree stalking is "excessive, unreasonable and disproportionate." We do not agree. The trial court concluded the supervisory period was necessary in light of defendant's prior criminal history, and the record amply supports that determination. Moreover, defendant waived his right to challenge the constitutionality of the anti-stalking statute, N.J.S.A. 2C:12-10, when he entered his guilty plea, State v. Raymond, 113 N.J. Super. 222 (App. Div. 1971) (noting that defendant waived his right to challenge the constitutionality of the abortion statute he was charged with violating when he pled guilty to conspiring to commit abortion). Similarly, defendant's claim that the statute is unduly vague lacks merit. State v. Cardell, 318 N.J. Super. 175 (App. Div.), certif. denied, 158 N.J. 687 (1999) (holding that the anti-stalking statute is not unconstitutionally vague or overbroad).

Affirmed.

 

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A-0383-08T4

August 16, 2010