STATE OF NEW JERSEY v. ANTHONY M. ALTIERI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2520-06T42520-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY M. ALTIERI,

Defendant-Appellant.

________________________________

 

Argued January 20, 2010 - Decided

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No.

05-01-0063.

Amira R. Scurato, Assistant Deputy Public Defender,

argued the cause for appellant (Yvonne Smith Segars,

Public Defender, attorney; Ms. Scurato, of counsel

and on the brief).

Michael J. Williams, Deputy Attorney General,

argued the cause for respondent (Paula T. Dow,

Acting Attorney General, attorney; Mr. Williams,

of counsel and on the brief).

PER CURIAM

On June 27, 2005, defendant Anthony M. Altieri pled guilty, pursuant to a negotiated agreement, to one count of third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The crime occurred in 1994 and involved the fourteen-year-old daughter of defendant's then live-in paramour.

The following colloquy took place between defendant and the Judge presiding at the plea hearing.

[THE COURT:] Do you understand that you will be subject to special parole supervision for life? It's called community supervision for life in this form, but they have changed the name of it to special parole supervision for life.

[THE DEFENDANT:] Sir, may I speak, please?

[THE COURT:] Sure.

[THE DEFENDANT:] At the time of the alleged offense, it was before Megan's Law was enacted, and I feel as though that portion of the law [doesn't] apply to me, the section --

THE COURT: Well, it does apply to you. I am telling you as a matter of law it does apply to you, whether it was before or after Megan's Law. And that's been adjudicated by our Supreme Court. You're pleading guilty to an offense, and it does apply to you.

Now if you don't want to plead guilty, you want to go to trial, that's okay. You signed the form. I'm just asking you if you understand these requirements.

THE DEFENDANT: Yes, sir.

THE COURT: Doesn't apply to you? You think it doesn't apply, I'll rip up the papers now, we'll just put it on the trial . . . calendar.

THE DEFENDANT: I guess it does apply to me, sir.

THE COURT: Huh?

THE DEFENDANT: It applies to me.

THE COURT: You will be subject to community supervision for life. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And that may, in fact, restrict your movement in and out of the State of New Jersey.

THE DEFENDANT: Yes, sir.

On June 5, 2006, the court sentenced defendant, consistent with the plea agreement, to a five-year term of imprisonment to be served at the Adult Diagnostic and Treatment Center (ADTC). Based on the report prepared by a staff psychologist at the ADTC, N.J.S.A. 2C:47-2, the court found defendant's conduct to be of a compulsive and repetitive nature and ordered him to serve his term of imprisonment at the ADTC, where he would participate in sex offender treatment. N.J.S.A. 2C:47-3. As anticipated, the court also ordered defendant to register as a sex offender, N.J.S.A. 2C:7-2, and be subject to community supervision for life (CSL). N.J.S.A. 2C:43-6.4.

Defendant's original appeal from this sentence was placed on the expedited summary process known as the Excessive Sentence Oral Argument calendar. R. 2:9-11. The matter was thereafter transferred to the regular appeals calendar where defendant now raises the following argument.

POINT I

EX POST FACTO CONSIDERATIONS BAR APPLICATION OF THE PUNITIVE REQUIREMENT OF COMMUNITY SUPERVISION FOR LIFE TO THIS DEFENDANT. U.S. CONST. ART. 1, 9 (sic), CL. 3 AND 10, CL. 1; N.J. CONST. ART. IV, 7, PARA. 3.

We reject this argument and affirm. Defendant completed his sentence and was released from the ADTC on September 14, 2009. He is currently subject to the conditions of his CSL. This requires defendant to comply with a comprehensive list of restrictions that affect his day-to-day activities. Specifically, defendant must:

1. Obey all laws and ordinances;

2. Report to the assigned parole officer as instructed;

3. Notify the assigned parole officer immediately after any arrest, after being served with or receiving a complaint or summons and after accepting any pre-trial release including bail;

4. Notify the assigned parole officer immediately upon the issuance by the appropriate court, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., of an order granting emergency relief, a temporary or final restraining order or an order establishing conditions of release or bail in a criminal matter or offense arising out of a domestic violence situation, and comply with any condition established within the respective order until the order is dissolved by the appropriate court or until a condition is modified or discharged by the appropriate court;

5. Reside at a residence approved by the assigned parole officer;

6. Obtain the permission of the assigned parole officer prior to any change of residence;

7. Obtain the permission of the assigned parole officer prior to leaving the state of the approved residence for any purpose;

8. Refrain from owning or possessing any firearm, as defined in N.J.S.A. 2C:39-1f, for any purpose;

9. Refrain from owning or possessing any weapon enumerated in N.J.S.A. 2C:39-1r;

10. Refrain from the purchase, use, possession, distribution or administration of any narcotic or controlled dangerous substance, controlled dangerous substance analog, imitation controlled dangerous substance or any paraphernalia related to such substances except as prescribed by a physician;

11. Cooperate in any medical and/or psychological examination or tests as directed by the assigned parole officer;

12. Participate in and successfully complete an appropriate community or residential counseling or treatment program as directed by the assigned parole officer;

13. Submit to drug or alcohol testing at any time as directed by the assigned parole officer;

14. Obtain the permission of the assigned parole officer prior to securing, accepting or engaging in any employment, business or volunteer activity and prior to a change of employment;

15. Notify promptly the assigned parole officer upon becoming unemployed;

16. Refrain from any contact (verbal, written or through a third party) with the victim(s) of the offense unless contact is authorized by the assigned parole officer;

17. Comply with any curfew established by the assigned parole officer;

18. Refrain from behavior which results in the issuance of a final restraining order pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq.;

19. Refrain from any contact (written or otherwise) with any group, club, association or organization that engages in, promotes or encourages illegal or sexually deviant behavior;

20. Submit to a search conducted by a parole officer, without a warrant, of the offender's person, place of residence, vehicle or other real or personal property within the offender's control at any time a parole officer has a reasonable articulable basis to believe that the search will produce contraband or evidence that a condition of supervision has been violated, is being violated or is about to be violated and permit the confiscation of any contraband; and

21. Pursuant to N.J.S.A. 30:4-123.88, the State Parole Board, on at least an annual basis, may administer a polygraph examination to all offenders serving a special sentence of community supervision for life. You shall submit to a polygraph examination as directed by the District Parole Supervisor.

[N.J.A.C. 10A:71-6.11(b).]

These conditions are clearly intended to monitor defendant's activities and provide a means to ensure that he does not present a danger to the community. Although the enabling statutory authority for this regulation was not in existence at the time defendant committed the crime, it did exist at the time of defendant's conviction. As the Court emphasized in State v. S.R., 175 N.J. 23, 28 (2002), the pertinent consideration is that the conditions are triggered by the date of the conviction, not the date the offense was committed. There are no ex post facto implications here because the conditions of CSL are related to the public policy underpinning the registration requirements of N.J.S.A. 2C:7-2. The overriding theme of both statutes is the protection of the public from sex offenders, not the infliction of punishment. Doe v. Poritz, 142 N.J. 1, 40-77 (1995).

 
Affirmed.

The original indictment, returned by an Ocean County Grand Jury, charged defendant with thirteen counts of various forms of sexual misconduct. The State agreed to dismiss twelve of these counts in return for defendant's willingness to plead guilty to this single count of aggravated criminal sexual contact.

In exchange for defendant serving the full five-year term, the State agreed to waive its right to seek an extended term of imprisonment.

Although the CSL statute was amended in 2003 to change "community supervision for life" to "parole supervision for life," G.H. v. Twp. of Galloway, 401 N.J. Super. 392, 401 n.4 (App. Div. 2008), aff'd, 199 N.J. 135 (2009), because defendant committed this crime before these revisions were enacted he remains under the former appellation of community supervision for life. N.J.A.C. 10A:71-6.11(a). The revisions did not change the substance of the law. Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:43-6.4 (2009).

(continued)

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8

A-2520-06T4

RECORD IMPOUNDED

August 19, 2010