Accused Sex-Offender Gets New Trial After Court Error

David Bueso was charged with first-degree aggravated sexual assault (N.J.S.A. 2C:14-2a(1)); second-degree sexual assault (N.J.S.A. 2C:14-2b); and third-degree endangering the welfare of a minor (N.J.S.A. 2C:24-4a.1) for crimes committed against M.C. when she was approximately four or five years old. Bueso lived with his girlfriend, Lucero, and her mother, Amparo, who babysat M.C. in their residence and the alleged touching occurred in the residence. M.C. told her mother that Busero touched her vagina with his hand and mouth and M.C.'s mother contacted the Union County Prosecutor's Office. M.C. testified that the acts took place in the defendant's bedroom when Lucero was out of the residence. Lucero and Amparo indicated that M.C. was never alone with the defendant and they had never seen any inappropriate behavior by Bueso toward M.C. At trial, in State v. Bueso, Bueso offered exculpatory evidence and the prosecution had no concrete medical evidence of sexual acts against M.C. Additionally, M.C. offered conflicting statements as to the number of times and the dates upon which the alleged acts occurred and the jury found the defendant guilty as to alleged acts on one occasion but innocent of alleged acts on another occasion and the court sentenced Bueso to a 15-year prison term subject to the No Early Release Act (N.E.R.A) (N.J.S.A. 2C:43-7.2). Bueso appealed and the NJ Appellate division held that the plain error standard of State v. Bunch, 180 N.J. 534, 541 (2004) applied and that the court's error in failing to inquire sufficiently into the competence of M.C. to testify must be disregarded "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Pursuant to State v. G.C., 188 N.J. 118, 131 (2006), a witness must understand the nature of an oath and have sufficient capacity to recollect and communicate with respect the matters about which they are providing testimony. State v. Zamorsky, 159 N.J. super 273, 280 (App. Div. 1978) established the elements a trial judge should use to determine competency of children as witnesses as "exploring the child's conceptual awareness of truth and falsehood" and then determining "whether the child understands the duty to tell the truth." The Appellate Division held that the trial in the Superior Court of New Jersey- Law Division, Union County's failure to make sufficient inquiry into M.C. competency was plain error and required a new trial. 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 Plea Reversed For Failure To Understand Supervision

William Smullen pled guilty to two counts of second degree sexual assault (N.J.S.A. 2C:14-2c(4))for having sexual intercourse on two separate occasions with a 15 year old female while he was 23 years old. The defendant was sentenced to lifetime supervision under N.J.S.A. 2C:43-6.4 as part of his plea agreement. In addition to federal charges, based on defendant's travel from his home state of New York to have sexual relations with the minor, Smullen was sentenced in New Jersey to 3 years in prison and community supervision for life. Following sentencing in State v. Smullen, the Defedant sought post-conviction relief (PCR) claiming insufficient opportunity to fully understand the scope of community supervision for life in spite of the 10 page document the judge provided him during the plea hearing which summarized lifetime community supervision. Additionally, the Defendant claimed ineffective assistance of counsel as a result of counsel's failure to explain the restrictions Smullen would face in New York under Megan's Law. The PCR court determined that holding the attorney accountable for failure to advise the Defendant of supervision requirements in other states was inappropriate. The Appellate Division held that, as a lifelong resident of New York, the Defendant should have been advised of the applicable provisions of community supervision for live which would be applicable to him as a New York resident and reversed the decision of the PCR court. it was also established at trial that the defense attorney was unaware of the terms of supervision for life in New Jersey as well and asked for additional time to review the provisions but was denied same. The matter was remanded for a determination of whether the Defendant would have pled guilty or exercised his right to a trial if he understood the community supervision provisions of his sentence. If you have been charged with a sex crime a conviction or guilty plea can result in incarceration for a term of years followed by involuntary civil commitment for life. Consequences also include registration as a sex offender and the social stigma you will face forever. It is critical you obtain experienced criminal defense counsel immediately if you are charged with a sex crime. For more information about rape, sexual assault, child molestation, solicitation of a minor or other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.