State v. Lavrik

• Decision Date: 09 May 2022
• Docket Number: DOCKET NO. A-1540-20
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Andrew N. LAVRIK, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

472 N.J.Super. 192

275 A.3d 929

STATE of New Jersey, Plaintiff-Respondent,

v.Andrew N. LAVRIK, Defendant-Respondent.

DOCKET NO. A-1540-20

Superior Court of New Jersey, Appellate Division.

Argued December 7, 2021

Decided May 9, 2022

Michael J. Confusione argued the cause for appellants J.B. and C.B. (Hegge & Confusione, LLC, attorneys; Michael J. Confusione, of counsel and on the briefs).

Blaine D. Benson argued the cause for respondent Andrew N. Lavrik (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, Hackensack, of counsel and on the brief; Lois De Julio, on the brief).

Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae Office of the Attorney General (Matthew J. Platkin, Acting Attorney General, attorney; Carol M. Henderson, Trenton, of counsel and on the brief).

Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Daniel S. Rockoff, of counsel and on the brief).

Dyanne Veloz Lluch argued the cause for amicus curiae New Jersey Crime Victims' Law Center (New Jersey Crime Victims' Law Center, attorneys; Richard D. Pompelio, Warren, Dyanne Veloz Lluch and Kianna Luscher, on the brief).

Before Judges Messano, Accurso and Rose.

The opinion of the court was delivered by

ROSE, J.A.D.

In this case of first impression, we consider whether a victim in a criminal matter has standing to appeal from a trial court order granting defendant's motion for a civil reservation, where the victim neither moved to intervene before the trial court nor this court, and the parties to the underlying action have not appealed. Because the victim was aggrieved by the court's order, and the civil reservation was neither raised during plea negotiations nor made a condition of defendant's guilty plea, we conclude the victim has standing to appeal.

Our decision, however, is not without caveats. We now hold, as we noted nearly twenty years ago in State v. Tsilimidos, 364 N.J. Super. 454, 456 n.1, 837 A.2d 373 (App. Div. 2003), the victim should have moved to intervene for leave to appeal and file a brief before this court. Similar to the reasons stated in Tsilimidos, however, we would have granted the victim's motion and considered her brief on the merits. See ibid. Accordingly, the victim's procedural missteps were not fatal in this case.

As for the merits of the victim's claims, we conclude the trial court's decision was procedurally and substantively flawed. Because it is unclear from the record evidence whether defendant faced a "precarious financial situation" absent a civil reservation, we part company with the trial court's decision that defendant satisfied the requisite "good cause" standard for entry of the civil reservation order.

Moreover, defendant's admission to the pretrial intervention (PTI) program was conditioned on his guilty plea. Until defendant completes – or is terminated from – the PTI program, his guilty plea is considered "inactive" under the PTI statute and the applicable Attorney General guidelines.

Thus, the order under review was premature.

We therefore vacate the order under review and remand for further proceedings consistent with this opinion.

I.

We summarize the pertinent facts and procedural history from the limited record before us. In May 2019, defendant Andrew N. Lavrik, an ice skating coach affiliated with the United States Figure Skating Association (USFSA), was charged in a three-count Bergen County indictment with two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (counts one and two), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1) (count three), against J.B., his sixteen-year-old student.¹ Defendant applied for PTI with the State's consent, but thereafter was denied admission. See R. 3:28-1(d)(1) (providing "a person who is charged with a crime, or crimes, for which there is a presumption of incarceration or a mandatory minimum period of parole ineligibility" is ineligible for PTI without the prosecutor's consent). The trial court rejected defendant's ensuing appeal in November 2019.

Following further negotiations with the State, on November 10, 2020, defendant pled guilty to count three, in exchange for admission to PTI. See R. 3:28-5(b)(2)(i) (requiring a guilty plea as a condition to PTI admission for first- and second-degree charges). The State also agreed defendant would be sentenced as a third-degree offender "if PTI [wa]s terminated for any reason," and any disposition of charges filed in New York "involving J.B. w[ould] not result in a violation of the New Jersey PTI."

At the plea hearing, defendant's retained attorney elicited a terse factual basis for defendant's guilty plea. In sum, defendant admitted between August 1, 2018 and November 30, 2018, he had assumed responsibility for J.B., and "knowingly engage[d] in a verbal conversation with [her] that was sexual in nature," which would impair or debauch her morals. Following argument on the length of the proposed term, the judge imposed a three-year period of PTI, with a "self-executing" reduction to two years provided defendant was "fully compliant" with the program's conditions. The court did not rule out defendant's ability to seek an earlier termination.

At the end of the hearing, defense counsel orally moved for a civil reservation under Rule 3:9-2, to prohibit "the plea as entered at this point" from admission in evidence "in any civil proceeding." Counsel acknowledged the "unusual" timing of the application, which he "generally" requested at sentencing. Counsel claimed the "PTI order may, in essence, be a final order in this case if [defendant] successfully completes PTI," and the application "has to be made at the time of the final order."

Arguing defendant failed to give advance notice of his application, the prosecutor countered the State could not consent to entry of the order because the victim was entitled to be heard. Although the court was inclined to grant the motion, the judge adjourned the matter, thereby permitting the State to file a response and notice the victim.

J.B.'s mother, C.B., was present on the December 21, 2020 return date for the virtual hearing. Over defendant's objection, the trial court permitted C.B. to state her daughter's "feelings and wishes" because J.B. was a minor when the crime occurred. However, C.B. and J.B. did not move to intervene in the trial court proceeding.² C.B.'s statements are reflected in the transcript of proceedings as "unidentified speaker."

At the outset of the hearing, the trial court cited our decision in State v. McIntyre-Caulfield, 455 N.J. Super. 1, 11, 187 A.3d 171 (App. Div. 2018), where we reversed a trial judge's decision denying the defendant's application for a civil reservation. In McIntyre-Caulfield, we reiterated two examples of good cause under Rule 3:9-2: (1) "to remove an obstacle to a defendant's pleading guilty to a criminal charge"; and (2) "where the civil consequences of a plea may wreak devastating financial havoc on a defendant." Id. at 8-9, 187 A.3d 171 (internal quotation marks omitted).

Claiming defendant had no liability insurance for a potential civil lawsuit and faced disciplinary hearings from the United States Center for SafeSport,³ defense counsel in the present matter argued defendant satisfied the "potential for devastating financial havoc" test under McIntyre-Caulfield. Counsel further argued the potential for "dismissal" and "expungement" of the charge "punctuate[d] the reason for the good cause" in this case.

The prosecutor countered defendant failed to establish good cause, having submitted no proof of the potential for financial devastation. In response to the court's inquiry, the prosecutor stated she did not know whether the victim had instituted a civil suit. The prosecutor also stated defendant could not coach without insurance and that the State had received certain documents at the outset of the prosecution reflecting coverage. According to the prosecutor, defendant's "guilty plea ... in contemplation of PTI, doesn't make that guilty plea any less of an admission."

At the conclusion of argument, the trial court reserved decision and thereafter ruled from the bench, granting defendant's motion. The court initially noted defendant's application for a civil reservation was first raised at the conclusion of the plea hearing and was not part of his plea negotiations with the State. Thus, the first prong of the McIntyre-Caulfield test was not present in this case. Turning to the second factor, the court found because defendant pled guilty to "intentional conduct," it was "highly unlikely" an existing insurance policy, if any, "would cover criminal acts or intentional acts." According to the court, defendant "most certainly would be exposed to significant personal liability above and beyond whatever existing insurance policy may be in effect." The court concluded, similar to the defendant in McIntyre-Caulfield, defendant in this matter faced "the potential for devastating financial loss." The court entered a memorializing order on February 3, 2021, barring "any and all statements made by [d]efendant Lavrik during court proceedings" from admission in evidence "in any civil proceeding pursuant to R[ule ] 3:9-2."

The following month, represented by counsel, J.B. and C.B. appealed from the trial court's order. As stated, the victim did not move to intervene before the trial court or this court or move for leave to file an interlocutory appeal and a brief. Nor does the victim's merits brief on appeal address standing. In a single point heading, the victim asserts the trial court erroneously granted defendant's motion.

Defendant, represented by his plea counsel, seeks dismissal of the appeal countering, as a non-party to this criminal matter, the victim lacks standing. Alternatively, defendant contends the trial court's decision should not be disturbed.

The Bergen...