State v. K.C.
| Decision Date | 02 May 2022 |
| Docket Number | A-2253-19 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. K.C., Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued February 16, 2022
On appeal from the Superior Court of New Jersey, Law Division Monmouth County, Indictment No. 17-09-1321.
Scott M. Welfel, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney Scott M. Welfel, of counsel and on the brief).
Carey J. Huff, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lori Linskey Acting Monmouth County Prosecutor, attorney; Carey J. Huff, of counsel and on the brief).
Before Judges Hoffman, Whipple, and Susswein.
Defendant appeals from his bench trial conviction for violating a condition of Community Supervision for Life (CSL), N.J.S.A 2C:43-6.4(d).[1]Defendant is on CSL because of his 2003 convictions for second-degree sexual assault and endangering the welfare of a child. Defendant was ordered by parole authorities to attend sex offender counseling. He refused, prompting the current criminal prosecution. Defendant contends the trial judge erred by denying his motion for judgment of acquittal on the grounds that the State was required, but failed, to prove beyond a reasonable doubt that sex offender counseling was necessary to protect the public or foster his rehabilitation.
After carefully considering the record in view of the governing principles of law, we affirm. Defendant's argument misconstrues the elements of the crime for which he was charged. In a criminal prosecution for violating a special condition of CSL, it is not for a jury or judge sitting as the trier of fact to decide if a special condition of CSL is necessary and appropriate. That is for the Parole Board to decide. The role of the trier of fact in a prosecution under N.J.S.A. 2C:43-6.4(d) is to determine if defendant knowingly violated a condition of CSL imposed by parole authorities and if so, whether there was good cause to do so. It is not a jury's role to decide whether that condition should have been imposed. Applying the evidence adduced by the State to the elements of the offense, the trial court properly denied defendant's motion for judgment of acquittal and found him guilty of the fourth-degree crime beyond a reasonable doubt. We likewise reject defendant's argument, raised for the first time on appeal, that the specific condition of CSL to attend sex offender counseling violated his First Amendment right to free speech and his substantive due process rights.
This matter has a long and complex history. To provide context for defendant's present contentions-some of which are raised for the first time in this latest appeal-we briefly summarize the procedural history and pertinent facts that we discern from the record.
The case arises from the sexual abuse of a nine-year-old girl. The victim claimed that defendant, who was in a romantic relationship with the victim's mother at the time, touched her breasts, buttocks, and vagina on numerous occasions. The victim reported this information to the police. See State v. K.C., A-0391-03 (App. Div. Dec. 9, 2004) (slip op. at 6-9).
In October 2002, a jury found defendant guilty of 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). Defendant was sentenced to concurrent seven-year prison terms. The trial court ordered that defendant comply with all provisions of Megan's Law, [2] including CSL, N.J.S.A. 2C:43-6.4.[3] We affirmed defendant's conviction, State v. K.C., A-0391-03 (slip op. at 14), and the Supreme Court denied certification, 182 N.J. 629 (2005).[4]
After the Court denied certification, defendant filed his first petition for post-conviction relief (PCR). We affirmed the trial court's denial of PCR. State v. K.C., A-6334-06 (App. Div. Apr. 30, 2008). The Supreme Court denied certification, 196 N.J. 343 (2008). In April 2009, the trial court denied defendant's second petition for PCR. In March 2013, the trial court denied defendant's third PCR petition.[5]
In 2007, defendant was released from prison and began the CSL component of his sentence. On April 20, 2007, defendant signed a form in which he acknowledged certain general conditions of CSL.[6] Additionally, the form incorporated two special conditions: (1) "I am to enroll and participate in an appropriate mental health program for the treatment of sex offenders as designated by the District Parole Office and continue in said program until discharge from this condition is recommended by treatment staff and approved by the State Parole Board," and (2) "I am to refrain from the purchase, the possession and any use of alcohol." The form also included the following acknowledgements: (1) "I understand that I shall be subject to any special conditions that may be imposed by the District Parole Supervisor, or Assistant District Parole Supervisor or the designated representative of the District Parole Supervisor and which is affirmed by the appropriate Board panel"; (2) "I understand that I will be under the supervision of the Division of Parole of the State Parole Board until I am released from community supervision by the Superior Court"; and (3) "I understand that a violation of a condition specified above without good cause constitutes a crime of the fourth degree."
Importantly for purposes of this appeal, the Notice of Effectuation also provided an explanation for requiring defendant to attend sex offender counseling:
Your attendance and participation in Sex Offender Counseling will assist you with methods of treatment designed around Cognitive/Behavioral theory and the philosophy of Personal Responsibility. Sex Offender Counseling will assist you with taking responsibility for your own decisions and is essential to progressing through treatment. Sex Offender Counseling will include cognitive restructuring, relapse prevention, theories of addiction, and techniques of reality therapy. Imposition of this program will also assist us in ensuring that you are abiding by your CSL conditions and will assist you with stability, thus fostering positive community adjustment and providing a public safety feature.
Officer Piemonte testified that she read the Notice of Effectuation to defendant before he reviewed the form and signed it. Defendant added the words "under duress" below his signature. The record also indicates that after the Notice of Effectuation was provided to defendant, there was a period where he was not required to attend counseling because he had a habeas corpus appeal in federal court. See supra note 5. The requirement to attend counseling was temporarily held in abeyance while the federal habeas litigation was pending.
On September 4, 2015, Officer Piemonte notified defendant that "if his appeal is closed or administratively dismissed, he will [be] directed to immediately re-enroll into sex offender counseling with an accredited sex offender counselor within [thirty] days." Officer Piemonte testified that defendant stated he understood. On September 14, 2015, and again on October 6, 2015, Officer Piemonte provided similar reminders to defendant.
On November 4, 2015, the Parole Board's Legal Unit determined that defendant would be required to enroll in sex offender counseling within thirty days, despite the pending habeas petition, and that a failure to do so would result in a violation of CSL. Officer Piemonte testified that the Legal Unit Officer Piemonte testified that defendant seemed to understand that he had thirty days to enroll in counseling and understood the consequences of failing to enroll. Officer Piemonte subsequently learned that defendant's habeas petition had been "administratively closed."
On November 10, 2015, Officer Piemonte visited defendant at his home. She reminded him of his obligation to find a...
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