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.

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.

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.

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.

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.