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.

First-Degree Aggravated Sexual Assault Remanded For Jury Charge

R.P. was convicted of first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(6)) against his step-daughter O.M. while she was under the age of thirteen. R.P. was sentenced to 26 years in prison with a 13 year period of parole ineligibility. On the defendant's appeal, challenging the conviction based on the trial court's failure to charge the jury with the lesser-included offense of second-degree sexual assault (N.J.S.A. 2C:14-2(c)(1)), the NJ Appellate Division found for the Defendant and vacated the conviction. Additionally, the Appellate Division denied the state's request for a molded verdict pursuant to State v. Farrad, 753 A.2d 648, 164 N.J. 247, 192 N.J. 294 (2007), and remand for a new trial with on the first-degree aggravated sexual assault charge. The NJ Supreme Court's review of State v. R.P. was focused solely on the state's request for a molded verdict. Pursuant to State v. Farrad, the court identified 3 factors: (1) the defendant had his day in court; (2) each element of the lesser-included offense was included in the more serious offense; and (3) the jury's conviction for the more serious offense implies guilt in of the lesser-included offense. In State v. R.P., the court added a prejudice element to the 3 factors by stating that, when all 3 factors are met and the defendant is not unduly prejudiced, a molded verdict should be granted for the state. The court reversed and remanded the matter. 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.

Sexual Assault Conviction Upheld After Appellate Dissent

T.J.M. was accused by the daughter of his girlfriend, with whom he resided, of sexual abuse. T.J.M. was charged with second-degree sexual assault (N.J.S.A. 2C:14-2(b)), first-degree aggravated sexual assault (N.J.S.A.. 2C:14-2(a)(1)) and second-degree endangering the welfare of a minor (N.J.S.A. 2C:24-4(a)) and was ultimately convicted of second-degree sexual assault and endangering the welfare of a minor. Chloe, the child making the accusations, indicated that T.J.M. had abused here over a period of roughly 4 years in the residence they shared and in the defendant's van. The conviction of T.J.M. in the Bergen County Superior Court, Law Division, Criminal part was affirmed by the NJ Appellate Division but a dissenting opinion within the Appellate Division led to an appeal. In a pretrial hearing, the trial judge determined that the defendant's 6 year old conviction for resisting arrest during a driving under the influence (DUI) stop could be utilized to impeach him at trial. Additionally, Chloe's lengthy history of involvement with the juvenile justice system prior to making the allegations against the defendant was limited to defense counsel's cross-examination at trial. The defendant raised, on appeal, Chloe's entrance and presence in the courtroom during summation of the defense and prosecution to which an objection had been raised during trial as well as the fact that person's in the courtroom were identified. The dissenting opinion focused on the cumulative errors set forth above resulting in a deprivation of the defendant's right to a fair trial. During an appeal as a matter of right, in State v. T.J.M., the NJ Appellate Division determined that the dissenting opinion was not correct in its interpretations and focus and upheld the opinion of the NJ Appellate Division affirming the defendant's conviction. Sex crime charges can be levied many years after an alleged incident and can result in incarceration, substantial and irreparable damage to the reputation and lifestyle of the accused in addition to the deprivation of liberty and rights, registration as a sex offender, loss of employment opportunities, possibility of civil commitment and social stigma. If you are accused of a sex crime it is absolutely imperative that you obtain experienced criminal defense counsel to begin working on your defense immediately. For more information about sexual assault, rape, endangering the welfare of a minor, internet crimes, child pornography or other sex crimes in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of counsel.

Expungement Changes May Still Come For NJ

NJ Assembly bill, A206, permitting automatic expungement of certain criminal records and reducing the waiting period required to obtain an expungement remains before the New Jersey Senate. The statutory waiting period prior to seeking expungement of more serious but expugnable crimes would be reduced from ten to seven years. The statutory waiting period for seeking expungement of disorderly or petty disorderly persons offenses would be reduced from five years to three years. Juvenile records could also be expunged after four years rather than the current five year period if the bill passes. Current requirements, including the non-commission of other prior or subsequent crimes during the requisite waiting period for expungement, would remain as existing with only the modification of the commensurate waiting periods required. The bill also provides for the automatic expungement, after three years, of disorderly or petty disorderly persons offenses for criminal mischief (N.J.S.A. 2C:17-3) or shoplifting (N.J.S.A. 2C:20-11) as well as drug offenses included in 2C:35 or 2C:36 offenses. This would reduce the waiting period from five to three years for expungement of these offenses. The current requirement that the applicant have no other convictions for any other prior or subsequent crimes or any other three disorderly persons or petty disorderly persons offenses would remain intact. Certain crimes including murder (N.J.S.A. 2C:11-1), manslaughter (N.J.S.A. 2C:11-4), kidnapping (N.J.S.A. 2C:13-1), sexual assault (N.J.S.A. 2C:14-2), arson (N.J.S.A. 2C:17-1), robbery (N.J.S.A. 2C:15-1) and other serious crimes shall remain unexpungeable. Additionally, conviction relating to the sale, distribution or possession with intent to distribute controlled dangerous substances (CDS) shall not be subject to expungement except in certain narrowly defined circumstances. Proponents of the bill argue that there is no societal benefit to the extended waiting periods prior to seeking expungement and also cite to the societal interest in cleansing records in order to return eligible non-recidivists to the workforce. If you would like to expunge past mistakes from your record, you should consult with an experienced criminal defense attorney to determine whether you are eligible for expungement and for help navigating the process of obtaining an expungement. For more information about the expungement of a criminal record, visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sexual Assault Remanded For Consideration Of Mitigating Factors

V.E.A. was indicted for second-degree sexual assault (N.J.S.A. 2C:14-2(b)) and second-degree endangering the welfare of a child (N.J.S.A. 2C:24-4(a)) and was convicted on both counts following a jury trial. The charges stemmed from the accusations of his daughter that she awoke one evening to find the Defendant’s hand inside her shorts and panties on her buttocks after falling asleep on his bed while they were watching a movie. The child testified that he then began to move his hand around toward the front of her body and upward toward her breast at which time she asked to go to the bathroom. The Defendant excused her to go to the bathroom and did not continue the behavior according to his daughter. At sentencing, V.E.A. received a 7 year prison sentence with an eighty-five percent parole disqualifier subject to the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) for sexual assault and a concurrent 7 year prison sentence for the second count of the indictment. In State v. V.E.A. the NJ Appellate Division heard V.E.A.’s arguments with regard to aggravating and mitigating factors and the disparity in the trial court judge’s findings with regard to same. The NJ Appellate Division found that where the judge stated at sentencing that she found no mitigating factors to exist but in the Judgment of Conviction indicated mitigating factor 10 (N.J.S.A. 2C:44-1(b)(10)) “the defendant is particularly likely to respond affirmatively to probationary treatment” applied and was accorded substantial weight by the trial judge such conflicted existed as to warrant the remand of the matter for resentencing with appropriate review of the aggravating and mitigating factors. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will affect 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 HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Evidence Of Other Man's Semen Admissible In Sexual Assault Case

Bobby Perry was found guilty of second-degree sexual assault (N.J.S.A. 2C:14-2(c)(1)) and third-degree aggravated assault (N.J.S.A. 2C:12-1(b)(7)). He was sentenced to 8 years with an 85% parole ineligibility period under the No Early Release Act (N.E.R.A., N.J.S.A. 2C:43-7.2(a)) for the aggravated sexual assault and 4 years imprisonment for the aggravated assault. Additionally, Megan's Law (N.J.S.A. 2C:7-1 to -23) was applicable and Perry was sentenced to parole supervision for life. Perry and the victim were drinking together at his residence when he became angry with her and punched her in the mouth and told her to "sit on him". One of the Defendant's roommates returned from a party and he let the victim go. The victim said nothing while the roommate was in the room for some time. After the roommate left the room, the Defendant took the victim downstairs and tried to anally penetrate her, which she resisted, then performed oral sex on her before again trying to orally penetrate her. After this activity, the two returned to a room in the house and sat silently looking at her for some time. The Defendant then asked the victim what she was going to say happened to her face and she agreed to say that someone else had injured her. The victim later went to Maplewood Police Department, accompanied by her ex-boyfriend Mr. Wilkins, and Sergeant Guglielmo, upon seeing her injuries, called for an ambulance. At the hospital, Detective Fuentes of the Union Township Police Department met with the victim to give a statement. On the way to the police station, the victim showed Detective Fuentes where the attack occurred and identified Perry in a photo array. Officers appeared at the residence with a warrant and used a UV light to search for signs of bodily fluids or evidence of clean-up efforts but found nothing in the basement or bathroom and on a later date, the porch where only a small amount of blood was found on the back of a chair. The blood was later matched to the victim and semen was found in her clothing, however, no DNA found matched the Defendant. The Union County Superior Court Judge hearing State v. Perry denied Defendant's application to admit DNA evidence of another man's semen under the Rape Shield Law (N.J.S.A. 2C:14-7) finding that the presence of another man's semen had no bearing on whether consent was given to the Defendant and found the probative value of the evidence was outweighed by the prejudice referencing State v. Ryan, 157 N.J. Super. 121 (App. Div. 1978). Perry appealed on the basis that the evidence of other semen could indicate the possibility that the victim claimed she was raped to appease Wilkins, with whom she was in an on again, off again relationship. The Rape Shield Law was intended to protect the privacy of the victim while also ensuring defendants receive a fair trial. State v. Garron, 177 N.J. 147 (2003) State v. Budis, 125 N.J. 519 (1991) explained that the Rape Shield Law permits prior sexual history to prove another individual is the source of the semen or to negate force. The NJ Appellate Division determined the evidence of another man's semen in the victims clothes was necessary to put on a full defense as required under State v. Cotto, 182 N.J. 316 (2005). The probative value of the evidence, presented for the limited purpose of proving the victim was assaulted by Wilkins and lied to the police about who assaulted her, outweighed the potential prejudice. The appellate division reversed Perry's conviction and remanded the matter with the instruction that, should the evidence of another's semen be again proffered in the case, the trial court conduct a N.J.R.E. 104 hearing to determine admissibility of the evidence. If you have been charged with a sex crime you face severe consequences including prison, societal scorn and inclusion on the sex offender registry and possible involuntary civil commitment. It is critical you obtain experienced defense counsel to immediately begin to review the prosecution's, evidence, speak with witnesses, explore alibis you may have and build a defense. For more information about sexual assault, aggravated sexual assault, criminal sexual contact, endangering the welfare of a minor and other sex crimes visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Financial Penalty For Sex Crimes Under Sex Crime Victim Treatment Fund (SCVTF)

The NJ Supreme Court recently decided State v. Bolvito, a case pertaining to financial penalties imposed upon sex offenders. Carlos Bolvito pled guilty to first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(b)), second-degree sexual assault (N.J.S.A. 2C:14-2(a))and second-degree endangering the welfare of a child (N.J.S.A. 2C:24-4) for acts committed with his stepdaughter. As a result of his plea, Bolvito's sentence included payment to the Sex Crime Victim Treatment Fund (SCVTF) pursuant to N.J.S.A. 2C:14-10. The defendant challenged the amount of his fine as N.J.S.A. 2C:14-10 does not state the factors a sentencing court must consider when setting financial penalties under the SCVTF. The statute merely offers a maximum of $4,000 and the plea was silent as to the amount of the fine. The NJ Supreme Court held that the nature of the offense and the defendant's ability to pay during any custodial sentence and after release. The Supreme Court also held that the sentencing court should provide a statement of reasons for the amount set in order to establish a record for future judicial review. The matter was remanded to allow the trial court to set the SCVTF amount according to these guidelines. Commission of a sexual offense can be discovered many years after the incident or incident and can result in substantial and irreparable damage to the reputation and lifestyle of the accused in addition to the deprivation of liberty and rights, registration as a sex offender, loss of employment opportunities, possibility of civil commitment and social stigma. If you are accused of a sex crime it is absolutely imperative that you obtain experienced criminal defense counsel to begin working on your defense immediately. For more information about sex crimes, sexual assault, aggravated sexual assault, internet crimes, child pornography, rape, endangering the welfare of a minor or other criminal matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sexual Assault Case Hinges On Voluntary Confession

In State v. R.P. the defendant was convicted of sexual assault by sexual penetration of a blood relative between the ages of 16 and 18 (N.J.S.A. 2C:14-2(c)(3)(a)); fourth degree criminal sexual contact (N.J.S.A. 2C:14-3(b)); and one count of endangering the welfare of a child (N.J.S.A. 2C:24-4(a)). The defendant was sentenced to 8 years each on counts one and two to be served consecutively with the remaining sentences to be served concurrently with count one resulting in a total sentence of 16 years. Defendant lived with his biological children and his wife. His wife suspected defendant of being unfaithful and placed a recording device in their bedroom and, days later, found a recording of the defendant and his daughter in what seemed to be sexual acts. The defendant's wife contacted the Bergen County Prosecutor's office who interviewed the defendant's 17 year old daughter who advised the prosecutor sexual acts had occurred between her and the defendant. Detectives visited R.P. at his residence, notified him he was the subject of an investigation and requested that he go to the Prosecutor's Office with them for questioning. The defendant went with the detectives, was Mirandized and waived his Miranda rights. During an 8 minute videotaped interview the defendant stated that for approximately 6 months he and his daughter would lie, in their underwear, on the bed defendant shared with his wife and watch television while the defendant hugged and kissed his daughter's body. He also admitted to putting his mouth on her vagina but denied ever having sexual intercourse. The matter was originally heard in Bergen County Superior Court. At trial, defendant's wife indicated she was under a great deal of stress when she thought the voices were her husband and his daughter and later realized the voices were her cousins who had been visiting that weekend. The daughter provided the same testimony she had originally provided to the detectives. The taped confession was provided to the jury and admitted into evidence without objection by defense counsel. The defendant appealed the matter based on lack of the voluntariness of his confession for failure of the court to comply with N.J.R.E. 104 relating to voluntariness of the confession and N.J.R.E. 403 balancing test to determine whether the probative value of defendant's statement was substantially outweighed by the prejudice it would cause against defendant. R.P. claimed his confession was "false because it was made in a stressful and inherently coercive situation." State v. Cook, 179 N.J. 533 (2004), State v. Jordan, 147 N.J. 409 (1997) and State v. Kelly, 61 N.J. 283 (1972) are among a long line of cases indicating that confessions obtained under coercive circumstances are inherently unreliable. The NJ Appellate Division remanded the matter for a Rule 104 hearing in which the state must demonstrate the voluntariness of the defendant's confession beyond a reasonable doubt. The appeals court did not agree with the State that the evidence against defendant was "overwhelming" and found the failure to conduct a Rule 104 hearing to be plain error. The Appellate Court further considered the fact that admission of the confession, if it was involuntary, could certainly produce an unjust result. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will affect 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 HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sex Offender's Confession Inadmissible

Bergen County Superior Court Judge Patrick Roma oversaw a trial in which R.P. was convicted on four counts of 2nd degree sexual assault by sexual penetration of a blood relative between the ages of 16 and 18 (N.J.S.A. 2C:14-2(a)), one count of 4th degree criminal sexual contact (N.J.S.A. 2C:14-3) and one count of 2nd degree endangering the welfare of a child (N.J.S.A. 2C:24-4) for allegedly having sexual contact with R.P.'s own 17 year old daughter, "Jane". R.P. was sentenced to consecutive 8 year terms on two of the counts, with the remaining sentences to be served concurrently. R.P.'s wife, "Vera", was suspicious that R.P. and "Jane" were having a sexual relationship and placed a recording device in the master bedroom of their home and later found a recording of a "very explicit sexual interaction" in which, upon reporting, she verified the voices of "Jane" and R.P. "Jane" advised officers, during her interview, that she and her father were sexually involved and that she participated due to privileges he would afford her including use of a car, later curfew and permission to date. "Vera" later recanted her testimony indicting she was under substantial stress at the time she made the tape and identified the voices and later realized the voices were those of her cousins who had been visiting the residence at the time of the recording. R.P. initially denied the allegations and later confessed in a video and audio interview by police to a consensual sexual relationship indicating they never had intercourse. R.P. challenged the conviction based on the voluntariness of the confession in which one officer was yelling at him and, due to lack of understanding, made statements to protect his daughter. R.P. claimed "Jane" provided false testimony based on R.P. having disciplined her and he also stated the voices on the wife's tape were those of the wife's cousins. The Appellate Division found no impropriety in the two consecutive sentences based on the need to deter such activity. However, in regard to the confessions, they held that, in spite of defense counsel's failure to object to the confession upon the prosecution's entry of the statement into evidence but then calling for a mistrial the following day, it was plain error for the trial judge not to conduct a hearing under NJ Rule of Evidence 104 to determine the voluntariness of the confession. Rule 104 addresses the reliability of statements given during confession in an effort to ensure confessions are given only voluntarily, without duress, compulsion or coercion. Rule 104 also deems confessions under such circumstances are unreliable. The Appellate Division reversed for a new trial requiring the state to prove voluntariness of the confession beyond a reasonable doubt. If you have been charged with a sex crime you face severe consequences including prison, societal scorn and inclusion on the sex offender registry and possible involuntary civil commitment. It is critical you obtain experienced defense counsel to immediately begin to review the prosecution's evidence, speak with witnesses, explore alibis you may have and build a defense. For more information about sexual assault, aggravated sexual assault, criminal sexual contact, endangering the welfare of a minor and other sex crimes visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sexual Assault Sentence Requires Explanation

The defendant in State v. R.D. was convicted, in a non-jury trial, of 6 counts of 2nd degree sexual assault (N.J.S.A. 2C:14-2(b)) on his daughter C.D. while she was under the age of 13, 3 counts of 2nd degree engaging in sexual conduct that would harm, impair, or debauch the morals of a child while under a legal duty to care for her (N.J.S.A. 2C:24-4(a)) , aggravated assault on his daughter while she was under the age of 13 (N.J.S.A. 2C:14-2(a)(1), one count of 3rd degree terroristic threats (N.J.S.A. 2C:13-3a) to her if she disclosed the abuse and 1 count of 3rd degree attempt to cause or recklessly cause significant bodily injury (N.J.S.A. 2C:12-1(b)(7)) to C.D. The state presented witnesses on child sexual abuse. C.D. and the defendant lived in the same household from birth and the abuse became more invasive and frequent as she aged reaching a number of several times monthly and including penetration. Defendant failed to testify or present witnesses. The Bergen County trial judge sentenced defendant to an aggregate 70 year prison sentence which was subject to the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2). Defendant appealed based on the court's reliance on opinion testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS) by the State's expert and errors and omissions in the judge's sentencing analysis. The NJ Appellate Division heard the appeal as to the errors and omissions but affirmed the convictions. Due to the trial judge's failure to make clear for which sentences were intended to be consecutive or concurrent, failure to set forth the Yarbough factors to justify any consecutive sentences and failure to specifically set forth any jail credits or "gap time" credits defendant may be entitled to the Appellate Division remanded for resentencing. If you are facing charges for sexual assault, endangering the welfare of a minor or similar charges, you should consult an experienced criminal defense attorney immediately. If you are convicted or plea to a sex crime in New Jersey, in addition to incarceration you face lifelong listing on a registry which can affect your ability to obtain employment, restrict where you may reside and generally have a negative impact on the remainder of your life. For more information about soliciting a minor, statutory rape, child molestation, internet crimes, child pornography or other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.