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Endangering the welfare of a child arrest in Livingston, NJ
Livingston man Arrested for Endangering the welfare of a child Tracy Bennett, 49 was arrested for allegedly flashing and fondling himself in front of a child.
Edison high school coach/South Plainfield teacher charged with sexual assault
Let the debate begin. Another female teacher charged with sexual contact wiith a minor. My guess is that she will not do any jail time. She’ll get a union attorney and this case will go away quickly. These cases just seem to have a pattern.
Sarah Blessing, 27, of South Plainfield, a coach at Bishop George Ahr High School and a fifth-grade teacher at Park Middle School in Scotch Plains, has been charged with sexual assault, criminal sexual contact and endangering the welfare of a girl. The State alleges that she had a relationship with a girl that began in June and continued until her arrest.
Story is here.
Jackson firefighter charged with sexually assaulting children
John Wes Ackley, of Andover Road, Jackson, also an employee of the Board of Fire Commissioners of Fire District 4 has been charged with aggravated sexual assault and sexual assault, each of a child, possession of child pornography on his computer and on a data flash drive, and endangering the welfare of a child. These incidents are alleged to have occurred over a 15 month time span.
Ackley was charged after being questioned by the office of the Ocean County Prosecutor’s Office which is code for (in my opinion) he confessed. He was subsequently suspended from his job. Even if he did not confess, the alleged child porn in this case is going to make it real tough for the defense as it will be used to show that the child porn was used to make the child more comfortable with the alleged abuse. Thus, the credibility of the victim will be strengthened.
This is the type of case where the defense should act very quickly to try to end this case and get the best result possible. While I have had people charged with the same offenses and have kept them out of prison, it is not easy to do. Of course, if there is a defense here, it should be pursued to trial. Story is here.
Union City High School teacher is charged with sexual contact with student
Gabriel Vasquez, a physical education teacher from Union City High School was charged with criminal sexual contact with a 16-year-old female student in his home. Vasquez, 28 of North Bergen, was also charged with endangering the welfare of a child and official misconduct. Since he was not charged with sexual assault, he is not alleged to have had sexual intercourse with the student.
Vasquez is also an assistant football and lacrosse coach. The victim’s mother contacted school officials after finding out about alleged crimes that occurred this month. The school then noified the Union City police. Oddly enough, the official misconduct charges may be the most serious charges that he faces. My guess is that he will get a union attorney who will quickly plea him out to at the most, a 3 flat, but more likely probation with a small jail term.
Story is here.
Howell man charged with sexually assaulting 13 year old girl
Viktor Zhadanov, 26, of Howell was charged with sexually assaulting a 13-year-old Morris County girl he met in an online kids’ chat room, after police found him alone with her in his SUV at 1 a.m.
The girl allegedly reported that she had previously met Zhadanov on another occasion when she performed a sex act on him. They allegedly met in a kids’ online chat room where he used the name Slave and claimed to be 15 years old and from Newark.
Zhadanov gave a statement and told police that he drove from his home in Howell to meet the girl on a few occasions but he denied knowing her age or that he engaged in any sexual activity with her. However, there is no indication as to how he claims met her.
This case will likely turn on whether or not the State can prove the computer evidence. If they can’t, the entire case will turn on the girl’s credibility. You kind of have to wonder about a 13 year old girl that is allowed to go out at 1am and what type of family she comes from. Thus, he may have a decent shot here.
Story is here.
Crisis counselor charged with sexual assault of 4 children
Jerry Jones, a crisis intervention counselor who works for the Union County Division of Youth Services was arrested on charges of sexual assault involving four children. The children range in age from 6 to 14 years old. He is charged with three counts of first-degree aggravated sexual assault, one count of second-degree sexual assault and one count of second-degree endangering the welfare of a minor.
The investigation began after a boy told his parents that Jones had assaulted him and a further investigation revealed additional victims. This sounds like a real tough case as it is really four cases. Thus, to win, a defense attorney would have to win all four cases. The State has to just win one in order to put him away for a long time.
His best bet is to work out a deal and to work it out sooner rather than later. With his older age, you want to stay away from anything that could be a de facto life sentence.
Story is here.
Anthony Iazzetta, Edison high school teacher charged with sexual assault
Anthony Iazzetta, a mathematics teacher at Edison High School was arrested charged with sexually assaulting a 17-year-old female student. Lucky for him, he is 26 and not an older guy. Thus, a jury would be hard pressed to get too upset over a 17 year old having a relationship with a 26 year old. Of course, the case is still serious.
He is charged with with one count each of sexual assault and endangering the welfare of a child. There is no indication of what evidence they have, but from my own experience, I expect that he made a statement admitting to the relationship. He is facing prison time, Megan’s law and parole supervision for life. I don’t think I would have too much of an issue getting prison time off the table. Keeping him off Megan’s law and PSL requires much more work. Hopefully he gets a good attorney, but I think he would get a union attorney like most teachers do.
Story is here.
How not to have a witness exonerate you
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH T. MANSFIELD,
Defendant-Appellant.
___________________________________
PER CURIAM
Defendant Keith T. Mansfield appeals from an order dated July 2, 2008, denying his PCR petition as untimely under Rule 3:22-12(a). We reverse and remand for further proceedings.
Defendant pled guilty on July 10, 2000 to third-degree endangering the welfare of a child. N.J.S.A. 2C:24-4a. He was sentenced to probation on September 15, 2000. He filed his PCR on May 22, 2008.
The petition was based on a March 20, 2008 certification, purportedly from the victim, now an adult, in which she attested that defendant never in fact molested her. Instead, she claimed that her mother fabricated the story of the alleged molestation as part of a custody dispute with her father, defendant’s employer. The PCR was denied without oral argument, and the PCR judge issued a very brief letter opinion dated July 2, 2008, noting only that the application was untimely.
On this appeal, defendant contends that he was unfairly denied a hearing on his PCR and he should be permitted to withdraw his plea based on evidence of his actual innocence. The State vigorously opposes the appeal, arguing that defendant did not submit a certification to the PCR judge attesting to his innocence, and that the victim’s certification is suspect. The State notes that the purported certification is not in legally proper form; it does not indicate where it was signed; and the signature bears no resemblance to the victim’s signature on several statements which she signed in 1997 when she made the original accusation.
Based on our review of the record, the State certainly has a colorable argument. The signatures on the documents do appear to be different. The victim’s statement is not in proper form either as an affidavit or a certification. “Knowledge and belief” is not the correct language for a certification; there is no indication as to where the witness signed the document; and the document is not properly notarized. See R. 1:4-4. Nonetheless, we cannot conclude that this application, concerning as it does a claim of innocence, should have been rejected summarily on timeliness grounds, without considering the merits or even giving defense counsel an opportunity to argue the application.
As the Supreme Court recently clarified in State v. Slater, 198 N.J. 145, 157-58 (2009), one of the significant factors to be considered in a motion to withdraw a guilty plea is whether defendant makes a claim of innocence:
[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
[Ibid. (emphasis added).]
Moreover, “[a] bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim.” Id. at 158. In evaluating the claim of innocence, the court may consider the evidence that was available to the prosecutor at the time the plea was entered. Ibid. And “efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons.” Id. at 160.
We agree that the application was deficient because defendant did not submit a certification attesting to his innocence and explaining why he nonetheless entered a guilty plea. Moreover, the victim’s statement was not in proper form. However, if the court had allowed oral argument, defense counsel might have sought an opportunity to supplement the application to address these issues. In the interests of justice, we reverse the denial on timeliness grounds and remand this matter to the trial court for further proceedings.
O n remand, defendant must be given an opportunity to file a certification attesting to his innocence and explaining the reasons why he entered his guilty plea. He must also have an opportunity to submit a further statement from the victim in legally proper form. If he satisfies these requirements, the court should hold a testimonial hearing which shall include, at a minimum, testimony from the victim.
Reversed and remanded.
Defendant stuck with his plea; Slater factors not in his favor
STATE OF NEW JERSEY,
Plaintiff-Appellant/
Cross-Respondent,
v.
T.J.,
Defendant-Respondent/
Cross-Appellant.
____________________________________________________
Submitted March 17, 2009 – Decided
Before Judges Skillman and Graves.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-04-0613.
Luis A. Valentin, Monmouth County Prosecutor, attorney for appellant/cross-respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney for respondent/cross-appellant (Michael C. Wroblewski, Designated Counsel, on the brief).
PER CURIAM
On April 4, 1997, defendant was indicted for second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(5)1; third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a); and fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b). On September 2, 1997, defendant pled guilty to third-degree endangering the welfare of a child pursuant to a plea bargain under which the State agreed to dismiss the other charges and recommend a non-custodial probationary sentence “with lifetime ‘Megan’s Law’ Registration.”
The second question on the special plea form for sex offenders signed by defendant at the time of his plea asked:
Do you understand that if you are pleading guilty to a crime of Aggravated Sexual Assault, Sexual Assault, Aggravated Criminal Sexual Contact, Kidnapping pursuant to 2C:13-1, Endangering the Welfare of a Child by engaging in sexual conduct which would impair or debauch the morals or a child pursuant to 2C:24-4, Luring or an attempt to commit any such offense. The Court in addition to any sentence authorized by the code will impose a special sentence of community supervision for life?
“Yes” is circled in response. The question continued:
And, that any person who violates a condition of special sentence of community supervision is guilty of a crime of the fourth degree?
“Yes” is circled in response. Defendant signed this form on September 2, 1997.
In taking defendant’s plea on September 2, 1997, the court had the following colloquy with him:
THE COURT: You’ve signed the form regarding the Megan’s Law requirements including the fact that you must register and continue to register should you move.
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
The court did not provide defendant with any additional explanation of the requirements of Megan’s Law.
On October 31, 1997, the trial court sentenced defendant in conformity with the plea bargain to a one-year probationary term. The judgment of conviction also required defendant “to register for Megan’s Law within ten days.” However, the judgment omitted the statutory requirement that defendant was subject to community supervision for life.
On May 27, 1999, defendant was charged with failure to register as a convicted sex offender, contrary to N.J.S.A. 2C:7-2(a). Defendant pled guilty to this charge on October 4, 1999, and was sentenced to two years probation on November 19, 1999.
In a letter dated February 19, 2003, the State Parole Board advised the trial court that defendant’s sentence did not provide for community supervision for life, as mandated by N.J.S.A. 2C:43-6.4. The Monmouth County Prosecutor submitted a similar letter on February 26, 2003, which asked the court to amend defendant’s judgment of conviction “to include a special sentence of community supervision for life.”
On September 19, 2003, the trial court amended the judgment of conviction to include the requirement of “a special sentence of community supervision for life, pursuant to N.J.S.A. 2C:43-6.4.” On October 24, 2003, a parole officer presented defendant with a form entitled “Community Supervision For Life” that explained the requirements of such supervision, and defendant signed the form. Defendant did not appeal from the amended judgment of conviction that added the requirement of community supervision for life.
On October 4, 2006, defendant filed a pro se petition for post-conviction relief, which was based on the amendment of the judgment of conviction to include the requirement of community supervision for life. Defendant alleged that he was unaware of the requirements of community supervision for life until the amended judgment was entered. He further alleged that he was “facing numerous ‘community supervision for life’ violations” and that his parole officer had advised him he could not be around his children.
On October 22, 2007, defendant filed a motion to withdraw his 1997 and 1999 guilty pleas on the ground that he had not been advised by either defense counsel or the trial court of the requirement of community supervision for life “and what this meant” when he pled guilty. In his certification in support of the motion, defendant stated:
Had I known about the community supervision for life requirement, I would not have pled guilty to the third degree endangering the welfare of a child charge in Indictment No. 97-04-0613 or the subsequent failure to register charge.
The trial court conducted a hearing on defendant’s petition for post-conviction relief and motion to withdraw his guilty plea at which both defendant and his counsel testified that they had not discussed the requirements of community supervision for life at the time of the plea. Defendant argued that the amendment of his judgment of conviction to include the requirement of community supervision for life violated his right to Due Process and therefore should be stricken from the judgment. Alternatively, defendant argued that he should be allowed to withdraw his guilty plea on the ground that he had not been informed of the consequences of community supervision for life.
The trial court concluded in an oral opinion that the amendment of defendant’s judgment of conviction to include the statutorily mandated supervision for life did not violate Due Process. However, the court granted defendant’s motion to withdraw his guilty plea on the ground that he was not informed by his attorney or the court of the consequences of community supervision for life. The court entered an order on April 7, 2008, memorializing these rulings. The court subsequently denied the State’s motion for reconsideration.
Both the State and defendant filed motions for leave to appeal from the April 7, 2008 order, which we granted.
I.
We reject the arguments presented on defendant’s appeal and affirm the part of the April 7, 2008 order that upheld the amendment of the judgment of conviction to include the provision for community supervision for life substantially for the reasons set forth in the trial court’s April 4, 2008 oral opinion. The trial court’s decision regarding this issue is directly supported by State v. Horton, 331 N.J. Super. 92, 97-102 (App. Div. 2000), which held that the requirement of community supervision for life is a mandatory component of a sentence for any of the offenses enumerated in N.J.S.A. 2C:43-6.4 and therefore the omission of this requirement constitutes an illegal sentence, which may be corrected at any time. The only distinction between Horton and this case is that the judgment of conviction in Horton was corrected to add the requirement of community supervision for life eighteen months after sentencing while defendant’s judgment of conviction was not amended until six years after sentencing. However, a court’s obligation to correct an illegal sentence continues even though a substantial period of time has elapsed. See, e.g., State v. Baker, 270 N.J. Super. 55, 61-63, 71-77 (App. Div.), aff’d o.b., 138 N.J. 89 (1994) (more than four years); see also State v. Williams, 342 N.J. Super. 83, 92-93 (App. Div.), certif. denied, 70 N.J. 207 (2001). We also agree with the trial court’s conclusion that even though defendant should have been given notice and an opportunity to be heard before the judgment of conviction was amended to add the requirement of community supervision for life, this procedural defect does not affect the validity of the amended judgment because community supervision for life was a statutorily mandated component of defendant’s sentence, which the judgment could be amended to reflect at any time.
II.
During the pendency of this appeal, our Supreme Court decided State v. Slater, ___ N.J. ___ (2009), which set forth standards for a trial court to apply in considering a motion to withdraw a guilty plea: “(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.” Id. at ___ (slip op. at 13). All four of these factors must be considered in ruling upon a motion to withdraw a plea. Ibid. “No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief.” Id. at ___ (slip op. at 20).
Based on the four factors set forth in Slater, we conclude that the trial court erred in granting defendant’s motion to withdraw his guilty plea.
Defendant does not claim that he is innocent of the charge to which he pled guilty. In fact, defendant gave a written statement to the police before his plea in which he admitted having sexual intercourse with the victim ten times over a period of a year-and-a-half knowing that she was underage. Thus, the first Slater factor weighs against allowing defendant to withdraw his guilty plea.
Defendant pled guilty pursuant to a highly favorable plea bargain under which the State agreed to dismiss the charge of second-degree sexual assault and recommend a probationary sentence that would not require defendant to serve any period of incarceration. Thus, the third Slater factor also weighs against allowing defendant to withdraw his guilty plea.
Defendant did not file a motion to withdraw his guilty plea until approximately ten years after entry of the judgment of conviction. Moreover, defense counsel indicated at argument on the motion that he had spoken with the victim and that she indicated she would not be a cooperative witness if the case were now tried. Therefore, it appears the State would be unfairly prejudiced if it were required to prosecute the charges against defendant more than ten years after occurrence of the acts upon which they were based and that the fourth Slater factor also weighs against allowing defendant to withdraw his guilty plea.
The only one of the Slater factors that provides any support for defendant’s motion is the second factor — “the nature and strength of defendant’s reasons for plea withdrawal” — specifically, the failure of defense counsel and the trial court to explain the consequences of community supervision for life. As to this factor, defendant was required to show that his “lack of knowledge of” the community supervision for life component of his sentence mandated by N.J.S.A. 2C:43-6.4 “was material to [his] decision to plead guilty and prejudiced defendant.” State v. Johnson, 182 N.J. 232, 241 (2005). A guilty plea “will not be vacated if knowledge of the consequences [that were not explained to the defendant] would not have made any difference in the defendant’s decision to plead.” Id. at 242 (quoting State v. Howard, 110 N.J. 113, 123 (1988)).
Defendant’s testimony as to whether he would have pled guilty if he had been aware of the requirement of community supervision for life was equivocal:
Q. [T.J.], you indicated that if you had gone to jail it all would have been over for you. Are you aware that even if you went to jail you’d still be on community supervision for life? You can’t get rid of the community supervision for life with a sex offense?
A. Technically if you say it like that, yeah. When I say that I mean that all this time later for me to still be doing this, I wouldn’t even have opened a can of worms at all if they wouldn’t have changed my life. That parole thing was totally changed me to a knock on the door and all of a sudden now you have to report to us. You can’t live with your children. I had to pay $250 for an evaluation. That was supposed to be for Avenel. I don’t know how they even found the —
Q. So, are you saying you would have chosen going to trial, potentially going to jail at that time?
A. Of course, I’d never want to go to jail. But there may have been another option. Okay, if you’re doing this, Mr. Jenkins, you’re going to be Megan’s Law. You’re going to have parole and you may not be with your children. Okay, well what other options do we have?
Is there a lesser charge maybe I can maybe try to go for? It was never offered. But is it possible?
Q. [T.J.], if there was no other options. You either went to trial or you took a plea. Are you saying you would not have taken this plea? You would have gone to trial and risk going to jail for five to ten years? If that’s what you’re saying.
. . . .
A. It’s a yes.
THE COURT: All right. Okay and he has difficulty answering that question. The record should reflect that.
The trial court’s findings regarding this issue were also equivocal:
Defendant must then show that knowledge of these consequences would have impacted his decision to plead guilty. Now, this particular case is complicated by the fact that this defendant got a great plea agreement in this particular case.
. . . .
And I realize that the State presents a situation where you know, this defendant was not prejudiced. Anybody in their right mind would have accepted this plea, because of the circumstances of this particular case. And so therefore, if he was aware of this back in 1997, he would have accepted the plea at any rate.
While the defendant was really hesitant about whether he would be or would not in his answers to this particular Court because it is a tough issue. But I think the knowledge of that certainly would have impacted on his decision one way or another. And it’s hard, some six to ten years later to judge what the impact would be.
Moreover, at the points in defendant’s testimony when he seemed to indicate that he would not have pled guilty if he had been aware of the requirement of community supervision for life, the only adverse consequence of such supervision to which he referred was that it was preventing him from residing with his children. However, any condition of parole, including the parole to which a person sentenced to community supervision for life is subjected, must be reasonable, and administrative remedies are available to challenge any unreasonable condition of parole. See Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 241-42 (2008); Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 187-89 (App. Div. 2004). A parole officer could not reasonably bar defendant from residing with his children simply because he had consensual sex more than ten years ago with a thirteen or fourteen year old female (the indictment alleges that the victim was “age 13 thru 14” when the offense was committed). Therefore, unless there are other circumstances in defendant’s record that are not revealed by the record before us, it would appear that the primary alleged consequence of parole supervision for life to which defendant objects could be remedied administratively.2
Consequently, we conclude that application of the Slater factors, including the absence of a colorable claim of innocence, the existence of a plea bargain that was highly favorable to defendant, the prejudice to the State if it were now required to try the charges against defendant, and defendant’s questionable stated reason for seeking to withdraw his plea, requires a reversal of the order allowing defendant to withdraw his guilty plea.
Accordingly, we affirm the part of the April 7, 2008 order that upheld the amendment of the judgment to add the requirement of community supervision for life. We reverse the part that granted defendant’s motion to withdraw his guilty plea.
1 Currently N.J.S.A. 2C:14-2(c)(4) (as amended by L. 1997,
c. 194, § 1).
2 We note that N.J.A.C. 10A:71-6.11(c)(3) provides that a person convicted of a sexual offense that includes as part of the sentence community supervision for life is prohibited from residing with any minor without the prior approval of the assigned parole officer. However, N.J.A.C. 10A:71-6.11(d)(2) provides an exception from this prohibition “[w]hen the minor is in the physical presence of his or her parent.” We do not know whether this exception was intended to apply to a parent’s residence with his or her own children, but even if N.J.A.C. 10A:71-6.11(d)(2) is inapplicable, a prohibition against a parent residing with his own children would not be reasonable in the kind of circumstances presented by this case.
April 14, 2009
Tonacchio, Spina & Compitello 