Opinion
DOCKET NO. A-5399-11T4
08-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PETER L. CARATINI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel; Michael B. Jones, Assistant Deputy Public Defender, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-06-1118. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel; Michael B. Jones, Assistant Deputy Public Defender, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
The State alleged defendant Peter Caratini sexually abused his girlfriend's daughter over several years while he lived with the family in their Bergen County home. Many of the sexual encounters were preserved on videotape. After hearing the evidence, a jury convicted defendant of four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(c), eight counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(3) and 2C:14-2c(4), one count of first-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(3), three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a and 2C:24-4b(4), one count of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b), one count of third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, and one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. The jury acquitted defendant of those counts alleging he abused the victim before her thirteenth birthday and after her eighteenth birthday.
The judge sentenced defendant to two consecutive sixteen-year terms on the counts for aggravated sexual assault subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive eight-year term on the count for endangering the welfare of a child by permitting the child to engage in a prohibited sexual act knowing it will be filmed. The sentences for all other counts were to run concurrently. The court also imposed fees and penalties, including a $1,400 Certain Sexual Offenders Surcharge, N.J.S.A. 2C:43-3.7, and a $15,700 Sex Crime Victim Treatment Fund Penalty (SCVTF), N.J.S.A. 2C:14-10.
Although unaddressed by the parties, there is a discrepancy between the sentencing transcript and the judgment of conviction regarding the sixteen-year sentences imposed on counts five and six for aggravated sexual assault. The judgment of conviction states the sentences are to run consecutively, but the sentencing transcript reflects the judge's intent that they run concurrently. As the sentencing transcript is clear, the judgment of conviction must be amended to conform to the sentence the judge imposed. See State v. Rivers, 252 N.J. Super. 142, 147 n.1 (App. Div. 1991) (noting in the event of a discrepancy between the court's oral pronouncement of sentence and the sentence described in the judgment of conviction, the sentencing transcript controls and a corrective judgment is to be entered).
Defendant raises the following arguments on appeal:
POINT I
THE JUDGE ERRED IN REFUSING TO CHARGE THAT, IN ORDER TO BE FOUND TO BE IN LOCO PARENTIS WITHIN THE MEANING OF THE STATUTE, DEFENDANT MUST HAVE INTENTIONALLY ASSUMED THAT POSITION. IN THE ALTERNATIVE, THE JUDGE ERRED IN NOT SPECIFICALLY DIRECTING THE JURY THAT IN ORDER TO HAVE THAT STATUS WITHIN THE MEANING OF THE STATUTE, DEFENDANT MUST HAVE ACTED KNOWINGLY TO DO SO.
POINT II
DEFENDANT'S SENTENCE, WHICH EXCEEDS THAT FOR AGGRAVATED MANSLAUGHTER, AND APPROACHES THAT FOR MURDER, IS CLEARLY EXCESSIVE AND MUST BE REDUCED.
ADDITIONALLY, TWO OF THE ECONOMIC PENALTIES IMPOSED ARE IMPROPER AND MUST BE CORRECTED.
A) The Sentence Is Manifestly Excessive.
B) The Economic Sanctions Imposed Are Improper.
Having considered these arguments in light of the record and existing law, we find no error in the court's charge or the length of defendant's sentence. We, however, reverse certain of the penalties imposed and remand for resentencing.
Emily, who was twenty-two at the time of trial, testified that defendant had been touching her sexually and coercing her into sexual conduct since she was twelve or thirteen years old. According to Emily, defendant began dating her mother soon after her parents divorced in 2000. When she was twelve years old, he moved into a bedroom in the basement of the home in Bergen County where she lived with her mother, younger brother and sister. He cooked for the family, took care of her and her siblings, drove them to and from school, babysat when Emily's mother went to work and had the authority to discipline and prescribe rules for the children. They also spent birthdays and holidays together and defendant joined the family on vacation in Florida.
We use a fictitious name to protect the victim's identity.
The sexual conduct first began with defendant touching Emily's breasts under her clothing when she was twelve or thirteen, and progressed to oral, anal and ultimately vaginal sex after she began menstruating. Emily estimated that she engaged in sexual acts with defendant twice a week. If she refused to perform sexual acts when requested, defendant threatened to tell Emily's mother about their previous encounters. Defendant began filming his sexual conduct with Emily when she was around fourteen years old. Emily explained that she consented to filming their sexual activities because she could sometimes convince defendant to watch the tape instead of having sex with her.
Emily testified that the sexual activities continued when she went away to college. When she was a sophomore, defendant moved out of her mother's house and into a house Emily's grandmother owned in Pennsylvania. Emily visited defendant and continued to have sex with him because he threatened to send the videotapes to her parents if she did not. After defendant made threats against her family in February 2009, she finally revealed the abuse to a psychologist in the college's counseling service and then to the police.
Defendant's statement to the police was admitted at trial, and he testified on his own behalf. Defendant, who was fifty- two at the time of trial, admitted to engaging in sexual acts with Emily but claimed he did not do so until just prior to Emily turning eighteen years old. He testified he moved into Emily's home, living in a room in the basement, while doing some construction work Emily's mother was paying him to do on the house. Defendant admitted to having sexual relations with Emily's mother but denied their relationship was ever that of a couple. He testified Emily initially sought him out, and that he had no intention of starting a romantic relationship with her. He characterized the relationship that subsequently developed between them as "boyfriend and girlfriend." He also maintained that the taping was all Emily's idea to which he only reluctantly agreed. Defendant claimed he never threatened Emily or her family in any way.
The State presented the video of defendant's initial interview with the detectives in which he stated that he practically raised Emily and her siblings and began sexual relations with Emily when she was fifteen or sixteen. Defendant stated at trial that while he waived his Miranda rights in the interview, he was intoxicated at the time from drinking the night before and taking a painkiller. He maintained that while he occasionally agreed to do odd jobs related to the children's care, their mother never asked him to be their caretaker and he never assumed such a role. He also claimed never to have made any rules for the children, never disciplining them and never financially supporting them. He characterized his statement to the detectives that he raised the children as "intoxicated bragging," and explained that he misstated that he had engaged in sexual relations with Emily at age fifteen or sixteen because the police were asking questions "so rapidly."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Under N.J.S.A. 2C:14-2a(2)(c), "[a]n actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person . . .[,] [t]he victim is at least 13 but less than 16 years old [,] and [t]he actor is a resource family parent, a guardian, or stands in loco parentis within the household."
During the charge conference, defense counsel requested that the judge instruct the jury that to find defendant stood in loco parentis to Emily, it must conclude defendant had intended to assume that role. The judge rejected defendant's request and delivered a charge closely tracking the Model Jury Charge:
An in loco parentis relationship occurs when a person acts as a temporary guardian or caregiver of a child, taking on some or all responsibilities of the parent. Among the things you may consider whether defendant stood in loco parentis during the relevant
period of time is whether defendant took on the responsibilities to maintain, rear, educate [Emily] as well as the duties of supervision, care and rehabilitation of the victim.
Defendant argues on appeal that the trial court erred in failing to instruct the jury that for an individual to be considered in loco parentis, the jury must find intent to occupy such a position. We do not agree.
In assessing the propriety of a jury charge, "we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law." State v. Whitaker, 402 N.J. Super. 495, 513 (App. Div. 2008), aff'd, 200 N.J. 444 (2009).
The Model Jury Charge was derived from the Court's discussion of the concept of in loco parentis in Hardwicke v. Am. Boychoir Sch., 188 N.J. 69 (2006). In Hardwicke, the Court found that a boarding school acted in loco parentis to its students for purposes of the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1(a)(1), because it exercised parental authority by providing shelter, food, education, recreation, succor, discipline and a faculty advisor to act as a confidant to each student. Id. at 91-92. Defendant claims that the Court alluded to an intent requirement when it stated that "[e]qually telling" as the school's actions was the fact that the school described itself as "In Loco Parentis" and its faculty as "substitute parents" in a handbook. Id. at 92. We decline to read an intent element into the Court's reasoning. The Court's use of the phrase "equally telling" implies that the school's public representations were not an essential element of the Court's finding that the school acted in loco parentis. Rather, the school's statements merely reinforced the conclusion reached based on the school's actions. See ibid.
We also reject defendant's argument that the doctrine of statutory construction, ejusdem generis, requires the intent element implicit in the words preceding in loco parentis to be included in its definition. The principle of ejusdem generis instructs that "when general words follow specific words in a statutory enumeration, the general words are construed to embrace only the objects similar in nature to those objects enumerated by the preceding specific words." State v. Hoffman, 149 N.J. 564, 584 (1997) (quoting Hovbilt Inc. v. Twp. of Howell, 263 N.J. Super. 567, 571 (App. Div. 1993), aff'd, 138 N.J. 598 (1994)). Defendant asserts that the two specific relationships preceding in loco parentis in N.J.S.A. 2C:14-2a(2), "family resource parent" and "guardian," are formal, government-sanctioned arrangements that require an adult to intend to be a parent to a child.
Relying on Hoffman, defendant reasons that because the first two items in the series require specific intent, the third item, in loco parentis, should similarly be understood to require such an intent. Hoffman, however, does not compel defendant's conclusion. In Hoffman, in order to avoid constitutional overbreadth challenges to the harassment statute, N.J.S.A. 2C:33-4a, the Court determined that the language prohibiting communications made in "any other manner likely to cause annoyance or alarm" requires a showing that the communication be "invasive of the recipient's privacy" because the previously listed types of communication were each invasive. Id. at 583.
The same principle is not applicable here because the term in loco parentis is not a general, catch-all phrase like "in any other manner." Rather, it refers to a specific type of relationship — that of an adult effectively acting in place of a parent, typically temporarily, without any specific legal designation.
Finally, there is no basis for defendant's alternative argument, not raised to the trial court, that if a "purposeful mental state" is not required, the judge should have charged the jury that defendant must have knowingly stood in loco parentis to Emily. Defendant concedes that the court instructed the jury that the fourth element of the offense was that "defendant acted knowingly." The judge instructed the jury in accordance with the model charge that an in loco parentis relationship occurs when a person voluntarily "takes on" some or all of the responsibilities of a parent, and that in determining whether such a relationship existed here it could consider whether defendant "took on" some or all of those responsibilities by maintaining, rearing and educating Emily and assuming the duties of supervision, care and rehabilitation. By requiring the State to prove that defendant "took on" the responsibilities of a parent, the judge made clear that the jury was required to find that defendant affirmatively chose to act in that capacity in the household in order to convict him of acting in loco parentis when the sexual assaults occurred. Nothing more was required.
In addition to his challenge to the jury instruction, defendant argues that his sentence is excessive and that the court gave improper weight to the aggravating and mitigating factors.
Applying N.J.S.A. 2C:44-1a, the court found aggravating factors (1) the "heinous, cruel, or depraved" nature of the offense; (2) the gravity of the harm to the victim; (3) "[t]he risk that the defendant will commit another offense"; and (9) the need to deter defendant or others. The only present mitigating factor was defendant's lack of a criminal record. N.J.S.A. 2C:44-1b(7). The court determined that the aggravating factors "clearly and convincingly outweigh the one mitigating factor."
It is axiomatic that a trial court possesses considerable discretion in sentencing. State v. Dalziel, 182 N.J. 494, 500 (2005). We are to affirm a sentence, even if we would have imposed a different one, so long as the sentencing judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence imposed is neither inconsistent with the sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscious. State v. Fuentes, 217 N.J. 57, 70-71 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
We reject defendant's argument that his forty-year aggregate sentence was excessive because it exceeds that for aggravated manslaughter and falls less than three years short of the minimum sentence for purposeful or knowing murder. The court's findings with regard to the aggravating and mitigating factors are well supported by the record and defendant's sentence is within the statutorily permissible range. Moreover, his sentence is hardly shocking to the judicial conscience as he was convicted of nineteen separate crimes involving the repeated sexual abuse of a minor.
Finally, we agree with defendant that the Certain Sexual Offenders Surcharge under N.J.S.A. 2C:43-3.7 of $1,400 was improper. N.J.S.A. 2C:43-3.7 provides:
In addition to any other penalty, fine or charge imposed pursuant to law, a person convicted of an act of aggravated sexual assault or sexual assault under N.J.S. 2C:14-2, or aggravated criminal sexual contact or criminal sexual contact under N.J.S. 2C:14-3, shall be subject to a surcharge in the amount of $100 payable to the Treasurer of the State of New Jersey for use by the Department of Community Affairs to fund programs and grants for the prevention of violence against women.
The trial court imposed a $100 surcharge for each sex offense for which defendant was convicted. In contrast to several other provisions imposing fines under N.J.S.A. 2C:43-3, however, the Certain Sexual Offenders Surcharge provision does not specify that the fine is to apply to each conviction.
See N.J.S.A. 2C:43-3.1 (providing that "any person convicted of [certain automobile offenses] shall be assessed at least $100.00 but not to exceed $10,000.00 for each such crime for which he was convicted which resulted in the injury or death of another person"); N.J.S.A. 2C:43-3.1(2)(a) (providing for a $50.00 penalty "for each such offense or crime for which he was convicted"); N.J.S.A. 2C:43-3.1(2)(b) (providing for a fine "for each such adjudication"); N.J.S.A. 2C:43-3.2 (providing for a Safe Neighborhoods Services Fund assessment "for each conviction"); N.J.S.A. 2C:43-3.5 (providing for a penalty to be assessed "for each adjudication or conviction"); N.J.S.A. 2C:43-3.6 (providing that "[i]n addition to any fine, fee, assessment or penalty authorized under the provisions of Title 2C of the New Jersey Statutes, a person convicted of a sex offense . . . shall be assessed a penalty of $ 800 for each such offense"). --------
In determining the Legislature's intent in enacting a statute, we presume that the decision to include particular language in one section of a statute but omit it in another section was intentional. See N.J. Dept. of Children & Families, Div. of Youth & Family Services v. A.L., 213 N.J. 1, 20-21 (2013) (holding Legislature's explicit extension of protection to an "unborn child" in one statute implied its intention not to extend such protection in another Act which did not include that language).
Further, we have held that the Law Enforcement Officers Training and Equipment Fund (LEOTEF) Penalty, N.J.S.A. 2C:43-3.3, which, like the Certain Sexual Offenders Surcharge provision, does not specify that the penalty is to be applied for each offense, may only be assessed once per disposition. State v. Owens, 381 N.J. Super. 503, 515 (App. Div. 2005). Accordingly, we conclude that the trial court erred in imposing the Certain Sexual Offenders Surcharge for each conviction and remand to the trial court to reduce the surcharge to $100.
We also agree with defendant, and the State concedes, that a remand is necessary for the court to place on the record its reasons for imposing the amount of $15,700 for the Sex Crimes Victim Treatment Fund Penalty. N.J.S.A. 2C:14-10; see State v. Bolvito, 217 N.J. 221, 235 (2014) (noting "the sentencing court should provide a statement of reasons when it sets a defendant's SCVTF penalty within the statutory parameters").
Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION