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.

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.

Additional Charge In Sexual Assault On Minor Does Not Always Mean More Time

Although he did not escape guilt, the defendant did receive a reduced sentence for charges of first degree aggravated assault, second degree sexual assault and second degree endangering the welfare of a minor in State v. W.L. Following a jury trial, the defendant was sentenced to 15 years imprisonment with an 85 percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the crime of 1st degree sexual assault into which the crime of 2nd degree sexual assault was merged. The defendant was also sentenced to 7 years for endangering the welfare of a minor to be served consecutively to the 15 years for the other charge. When sentencing, a Judge may count aggravating factors only once and must apply a Yarbough analysis when imposing an excessive sentence. The judge in State v. W.L. applied aggravating factors 2 (gravity of the offense), 3 (risk defendant will commit another offense) and 9 (the need to deter such activity) and mitigating factors 7 (defendant's lack of criminal history) and 8 (the likelihood the defendant's behavior will recur). An essential element of the conviction for aggravated sexual assault was the child's age and finding of an aggravating sentencing factor cannot be based solely on an essential element of the crime charged. Additionally, the sentencing Judge failed to apply the appropriate standards from State v. Yarbough, 100 N.J. 627, 643-644 (1985) in determining whether to impose a consecutive sentence for count 3, endangering the welfare of a minor. 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.