STATE OF NEW JERSEY v. GERARD J. GILLIGAN

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4890-10T4

A-5500-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERARD J. GILLIGAN,

Defendant-Appellant.

________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERARD J. GILLIGAN,

Defendant-Appellant.

_______________________________________

May 28, 2013

Argued March 4, 2013 - Decided

Before Judges Graves, Ashrafi and Espinosa.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment

No. 11-01-0082.

Gerard J. Gilligan, appellant, argued the cause pro se.

Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued

the cause for respondent in A-4890-10 (Christoper J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief).

John E. Anderson, Special Deputy Attorney General/Acting Assistant Essex County Prosecutor, argued the cause for respondent in A-5500-10T4 (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Anderson, on the brief).

PER CURIAM

Defendant Gerard Gilligan appeals following his guilty pleas pursuant to plea agreements in Monmouth (A-4890-10T4) and Essex (A-5500-10) Counties. He pleaded guilty in each county to a fourth-degree charge of violating the conditions of community supervision for life ("CSL"), N.J.S.A. 2C:43-6.4, which was imposed on defendant as part of a prior sentence for a sex offense. We address the two appeals together in one opinion. Because the issues defendant raises were not preserved for appeal as a condition of his guilty pleas, as required by Rule 3:9-3(f), we dismiss the appeals.

Defendant is a fifty-nine-year-old former attorney. In 2000, he pleaded guilty to second-degree sexual assault of a child, N.J.S.A. 2C:14-2(b). At the time, he was on probation for a 1995 disorderly persons conviction for lewdness in the presence of children. Defendant was sentenced in Essex County on the sexual assault charges to three years imprisonment, Megan's Law requirements, CSL, and statutory money penalties.

Upon his release from prison in 2002, defendant signed conditions of CSL, including that he must reside at a residence approved by his assigned parole officer and he must obtain permission of the parole officer before changing his residence or leaving the state for any reason. In 2004, he moved to Tennessee without getting permission from his parole officer. Over the next several years, defendant moved to different places, including New York and Ireland. In February 2010, he was arrested in Washington, D.C. A Monmouth County grand jury indicted him in April 2010 on one count of fourth-degree violating CSL, N.J.S.A. 2C:43-6.4(d), by leaving New Jersey and changing his residence without the permission of his parole officer.

Defendant was returned to New Jersey. He was released from custody in the latter part of April 2010. At the time of his release, he was notified in writing of a new condition of CSL requiring that he not access any internet social networking sites. In October 2010, parole officers went to his residence in Montclair and found evidence of violations of that condition on his laptop computer. After four days in custody on charges of violating the new condition of CSL, he was released on bail. He was subsequently indicted in Essex County on two fourth-degree charges of violating CSL by accessing social networking sites, or viewing or possessing sexual material.

In the Monmouth County case, Judge Francis J. Vernoia denied defendant's motion to dismiss the 2010 indictment. He then entered into a plea agreement with the Monmouth County Prosecutor's Office. On March 23, 2011, he pleaded guilty before Judge Vernoia to the fourth-degree charge arising from the 2004 CSL violation in exchange for a sentence of time already served in custody after his arrest in Washington, D.C., and transfer to New Jersey.

On April 26, 2011, he entered into a plea agreement with the Essex County Prosecutor's Office to plead guilty to one of the two counts in the Essex County indictment in exchange for the time served in Essex County. He entered a plea of guilty before Judge Peter V. Ryan on that date.

In accordance with the Monmouth County plea agreement, Judge Vernoia sentenced defendant on April 29, 2011, to time served, sixty-five days. In accordance with the Essex County plea agreement, Judge Ryan sentenced defendant on June 3, 2011, to time served, four days in the county jail.

Defendant filed a notice of appeal from each judgment of conviction. In A-4890-10, the Monmouth County case, he argues:

POINT I

THE CONFISCATION OF CITIZENSHIP UNDER COMMUNITY SUPERVISION FOR LIFE IS PUNITIVE IN ITS DESIGN, INTENT AND APPLICATION AND IS UNCONSTITUTIONAL AND PROHIBITED UNDER THE DOUBLE JEOPARDY, EX POST FACTO AND BILL OF ATTAINDER CLAUSES.

POINT II

THE SENTENCE OF COMMUNITY SUPERVISION FOR LIFE, IF A PROPER PENAL STATUTE, IS INCONSISTENT WITH THE RULES OF GENERAL CONSTRUCTION AND LEGISLATIVE INTENT OF TITLE 2C AND IS THEREFORE ILLEGAL AND UNENFORCEABLE.

POINT III

APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO COUNSEL, GRAND JURY AND EQUAL PROTECTION OF THE LAWS AND THE JUDGMENT OF CONVICTION SHOULD BE VACATED.

POINT IV

THE CSL STATUTE VIOLATES APPELLANT'S CONSTITUTIONAL RIGHT TO TRAVEL.

In A-5500-10, the Essex County case, he argues:

POINT I

THE CSL CONDITION OF SUPERVISION BANNING SEX OFFENDERS FROM SOCIAL NETWORKING SITES AND ITS ENABLING LEGISLATION ARE UNCONSTITU-TIONALLY VAGUE AND OVERBROAD AND VIOLATES THE FIRST AMENDMENT FREEDOMS OF SPEECH, ASSOCIATION AND PRESS.

POINT II

THE SENTENCE OF COMMUNITY SUPERVISION FOR LIFE, IF PUNITIVE, IS INCONSISTENT WITH THE RULES OF GENERAL CONSTRUCTION AND LEGISLATIVE INTENT OF TITLE 2C AND IS THEREFORE ILLEGAL AND UNENFORCEABLE.

POINT III

DUE PROCESS AND FUNDAMENTAL FAIRNESS REQUIRE THAT THE CONVICTION BE VACATED.

However, an issue will not be heard on appeal following a plea of guilty unless the matter is automatically preserved for appeal by our court rules or defendant reserved the right to appeal the ruling with the consent of the prosecutor and the approval of the court. Rule 3:9-3(f); State v. Knight, 183 N.J. 449, 470 (2005); State v. Crawley, 149 N.J. 310, 316 (1997); see also Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.").

Our court rules automatically preserve for appeal issues on a motion to suppress evidence under the Fourth Amendment, Rule 3:5-7(d), and denial of admission into the pretrial intervention program, Rule 3:28(g). Knight, supra, 183 N.J. at 471. Also, the legality or severity of a sentence may be appealed following a guilty plea. State v. Sainz, 107 N.J. 283, 292 (1987). Any other issues must be specifically and expressly preserved for appeal in accordance with Rule 3:9-3(f). Knight, supra, 183 N.J. at 471.

Defendant did not preserve a right to appeal the constitutionality of his sentence of CSL imposed for his 2000 conviction for sexual assault, or any other issue that he now raises on appeal. Instead, he chose to limit his sentencing exposure by means of plea agreements to the time he had served in each of the two county jails. To the extent defendant challenges CSL as an illegal part of his sentence, that issue must be addressed in the criminal case for which the sentence was imposed, the 2000 sexual assault conviction. The challenges defendant raises with respect to his 2011 guilty pleas and sentences for violation of N.J.S.A. 2C:43-6.4 are not cognizable on appeal.

The appeals are dismissed.