Sexual Assault Was Apparent To Judge But Sentencing Not As Obvious

Marvin Flores-Gamez was indicted for first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(1)); 2 counts of second-degree sexual assault (N.J.S.A. 2C:14-2(b)); and third-degree endangering the welfare of a child by engaging in sexual conduct with the victim (N.J.S.A. 2C:24-4(a)). In 2011, the Flores-Gamez contacted 12 year old Susan on Facebook, when Flores-Gamez was 19. Susan and Flores-Gamez traded messages on Facebook for some time before he began to mention the idea of having sex with her. In November 2011, Susan agreed to meet Flores-Gamez, with Susan's cousin, Kate, and Kate's boyfriend, Tim, present. The 4 went to Susan's house and the men gave the children juice that tasted like alcohol. Flores-Gamez and Susan ended up alone together in the bedroom and, when Susan resisted his advances, Flores-Gamez removed her clothes and began to have sex with her. When he refused to stop, Susan bit Flores-Gamez on the hand to make him stop. For the next 5 days, Susan and Flores-Gamez exchanges messages on Facebook until Susan's father discovered Susan had missed school and, during the subsequent inquiry, learned what had happened. Susan's father took her to the police station and, during an investigation, Flores-Gamez provided a statement with facts similar to those Susan provided. At trial, the Defendant did not testify. Both Tim and Kate testified that the Defendant and Susan were never alone together and that the Defendant did not sexually assault Susan. A psychologists report was also offered to show that Susan had indicated Tim's mother was also in the apartment and was the one who stopped the sexual assault. Following a trial in the Superior Court of New Jersey, Law Division, Bergen County, Flores-Gamez was found guilty of 2 counts of second-degree sexual assault. Flores-Gamez was sentenced to a concurrent 8 year term for both counts, subject to an 85% parole disqualifier under the No Early Release Act (N.E.R.A.) (N.J.S.A. 2C:43-7.2). In State v. Flores-Gamez, the defendant appealed. The N.J. Appellate Division affirmed the decision of the trial judge except defendant's sentence. The Appellate Division held that the trial judge did not follow proper procedure with regard to sentencing. The judge listed the aggravating and mitigating factors, without making any specific findings in regard thereto, and then meted out the sentence. The judge found aggravating factors one and two; however, the victim's age was an element of second-degree sexual assault and could not be considered. Also, the trial judge failed to give any indication that the mitigating factors raised by the defendant were considered. The Appellate Division remanded for resentencing. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will effect where you may live, where you may work and how others will treat you and possibly even civil commitment. It is critical that you obtain experienced criminal defense counsel to assist you with these charges. For more information about rape, endangering the welfare of a minor, sexual assault, criminal sexual contact and other sex crimes in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.