RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1029-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY C. AMAN,
Defendant-Appellant.
_______________________________
Argued March 2, 2017 – Decided May 23, 2017
Before Judges Lihotz and Hoffman.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Indictment Nos.
13-11-1049 and 14-07-0548.
Alan L. Zegas argued the cause for appellant
(Law Offices Alan L. Zegas, attorneys; Mr.
Zegas and Cissy M. Rebich, on the briefs).
Gretchen A. Pickering, Assistant Prosecutor,
argued the cause for respondent (Robert L.
Taylor, Cape May County Prosecutor, attorney;
Ms. Pickering, of counsel and on the brief).
PER CURIAM
Defendant Timothy C. Aman appeals from his conviction, for
first-degree aggravated sexual assault and the imposed sentence
of ten years in prison, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Immediately before trial, defendant entered
a guilty plea, pursuant to the terms of a negotiated agreement.
Although defendant admitted he performed fellatio on K.C., who was
not conscious, he now challenges the sufficiency of the factual
basis to support the knowledge element of the crime. We affirm.
I.
These facts, taken from the record on appeal, are not
disputed. Defendant, K.C., and seven others, traveled to Wildwood
to attend "senior week" on June 9, 2013. Defendant and K.C. passed
out after drinking alcohol and smoking marijuana. Defendant awoke
and performed fellatio upon K.C., while recording the acts on his
cell phone. Despite the contact, K.C. did not awaken and did not
become aware of the event until K.C. watched the video on
defendant's phone, a few weeks later.
In a superseding indictment, defendant was charged with
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7),
two counts of third-degree aggravated criminal sexual contact,
N.J.S.A. 2C:14-3(a), and two counts of third-degree criminal
invasion of privacy, N.J.S.A. 2C:14-9(b).
Defendant filed pre-trial motions. Apparent from the plea
record, defendant moved to bar the State's presentation of the
cell phone video, under N.J.R.E. 403, which the judge denied,
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finding the probative value of the evidence was not substantially
outweighed by any prejudice.1
On the eve of trial, defendant entered his guilty plea to
first-degree aggravated sexual assault. The plea was subject to
the registration and notification requirements of Megan's Law,
N.J.S.A. 2C:7-1 to -23, parole supervision for life (PSL), N.J.S.A.
2C:43-6.4, a restraining order under Nicole's Law, N.J.S.A. 2C:14-
12, and required a psychological evaluation at Avenel. Otherwise,
the plea agreement did not include a sentencing recommendation,
but stated defendant would request to be sentenced one degree
lower than the charged offense, and the State intended to press
for a first-degree sentence.
During the plea hearing, defendant responded to the judge's
preliminary questions stating he was age twenty, a high school
graduate, and was not subject to a disability, impairment or under
the influence of medication, drugs or alcohol. Defendant confirmed
he understood the crime charged and that he was pleading guilty.
Defendant agreed he received all discovery representing the
evidence the State planned to present at trial. Further, defendant
stated he executed the plea agreement and supplemental forms after
1
The judge recited this prior finding during the plea hearing.
The transcript from this and defendant's Miranda challenge is not
included in the record.
3 A-1029-15T3
he had sufficient time to confer with counsel, review each page,
and discuss his questions. Next, the judge detailed all mandatory
registrations, notifications, evaluations, possible psychological
treatment and requirements of PSL and NERA, along with all
attendant parole provisions, penalties and assessments attached
to a conviction for aggravated sexual assault. Defendant stated
he understood each of these requirements.
The judge reviewed the maximum sentence for the charged
crimes, as well as defendant's rights to proceed to trial by jury,
call and cross-examine witnesses, and present evidence. Defendant
waived these rights knowingly and voluntarily, without coercion
or influence by undisclosed promises. Defendant acknowledged he
understood all ramifications of his decision to plead guilty to
first-degree aggravated sexual assault. He then admitted his
guilt.
Defendant then was asked questions by his attorney, to
establish the factual basis for the offense charged:
[DEFENSE COUNSEL]: [O]n June 9th of 2013
were you in the City of Wildwood . . . ?
THE DEFENDANT: Yes.
[Q]: At that date and time, did you come
into contact with one K.C.?
[A]: Yes.
4 A-1029-15T3
[Q]: And, you know who K.C. is just based
[on] his initials, correct?
[A]: Yes.
[Q]: And, that date and time and in that
place, did you perform an act of fellatio on
him while he was physically helpless and
otherwise incapacitated?
[A]: Yes.
THE COURT: So therefore without his
knowledge?
[A]: Yes.
The judge concluded defendant freely, knowingly, and
voluntarily entered an informed guilty plea to the charge of first-
degree aggravated sexual assault. He released defendant pending
sentencing.
The sentencing hearing included testimony from defendant's
clinical psychologist, who discussed his evaluation of defendant.
Parties were available to speak on behalf of defendant and the
victim. Defendant also proposed to present an expert to opine on
the life-threatening effect of prison on defendant, who was
struggling with his sexuality. Numerous people wrote character
letters supporting defendant. Other documents reviewed by the
judge included the pre-sentence report, the Avenel interview and
sex offender evaluation, and K.C.'s written victim's impact
statement, which expressed his view a prison sentence was
5 A-1029-15T3
necessary, noting he was victimized by defendant "on more than one
occasion and in more than one state."2
Applying and weighing aggravating and mitigating factors,
N.J.S.A. 2C:44-1(a), (b), the judge sentenced defendant to ten
years, the "lowest end of the first-degree [range and the] high
end of the second-degree [range.]"
Defendant did not move to vacate his plea. At no time, after
entering his plea, has he asserted his innocence.
Defendant filed this appeal, arguing:
POINT I
DEFENDANT DID NOT PROVIDE AN ADEQUATE BASIS
FOR A GUILTY PLEA AND THEREFORE HIS PLEA AND
RESULTING CONVICTION MUST BE VACATED.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT
[AN] OPPORTUNITY TO PRESENT MITIGATING FACTORS
AND FAILING TO PROPERLY APPLY THE AGGRAVATING
AND MITIGATING FACTORS DURING SENTENCING,
WHICH RESULTED IN AN EXCESSIVE SENTENCE, WHICH
MUST BE VACATED.
II.
Acceptance or rejection of a defendant's guilty plea rests
within the discretion of the trial court. A judge may not accept
a guilty plea unless the defendant's testimony supports the basis
2
The record contains numerous references to a separate
prosecution in Pennsylvania charging defendant with involuntary
deviant sexual intercourse involving the same victim.
6 A-1029-15T3
for conviction. See R. 3:9-2 ("[A judge] shall not accept such
plea without first questioning the defendant personally, under
oath . . . and determining by inquiry of the defendant . . . there
is a factual basis for the plea . . . . ").
Indeed, "it is essential to elicit from the
defendant a comprehensive factual basis,
addressing each element of a given offense in
substantial detail." State v. Campfield, 213
N.J. 218, 236 (2013). The "court must be
'satisfied from the lips of the defendant,'"
State v. Smullen, 118 N.J. 408, 415 (1990)
(quoting State v. Barboza, 115 N.J. 415, 422
(1989)), that he committed every element of
the crime charged, State v. Sainz, 107 N.J.
283, 293 (1987).
[State v. Urbina, 221 N.J. 509, 526 (2015).]
In Urbina, the Supreme Court detailed the purposes of
recording the defendant's factual basis, which assures the
defendant fully understands the nature of the charges and makes
certain the defendant's conduct meets each element of the charged
offenses. Id. at 526-27.
The Court emphasized the formality of the plea process to
meet these goals and to mitigate the possibility a defendant "may
enter a plea of guilty to a crime he did not commit to insulate
himself from a potentially greater sentence if found guilty by a
jury." Id. at 527 (quoting State v. Taccetta, 200 N.J. 183, 198
(2009)). "Though we recognize that sometimes an accused, unknown
to the trial judge, will perjure himself to put through a plea
7 A-1029-15T3
agreement, a court cannot give official license to such a
practice." Ibid. (quoting Taccetta, supra, 200 N.J. at 198). "Our
longstanding commitment to this approach, above all, is intended
to preserve the integrity of the criminal justice process and to
safeguard against convicting a potentially innocent person."
State v. Tate, 220 N.J. 393, 397 (2015).
Accordingly, in engaging the necessary scrutiny, neither the
State nor the trial judge should hesitate to require details of
the defendant's conduct in committing an offense. Often times the
limiting examination to leading questions allows a defendant,
after a change of heart, to challenge exactly what was said or not
said. Requiring a more precise statement from the lips of a
defendant assures the court and the public that a given defendant
admits he or she committed the charged offense.
We start our review of this matter by reciting the elements
of the crime for which defendant was convicted. "Aggravated sexual
assault is a crime of the first degree." N.J.S.A. 2C:14-2.
An actor is guilty of aggravated sexual
assault if he commits an act of sexual
penetration with another person under any one
of the following circumstances:
. . . .
(7) The victim is one whom the actor knew or
should have known was physically helpless or
incapacitated . . . or had a . . . defect
which rendered the victim temporarily or
8 A-1029-15T3
permanently incapable of understanding the
nature of his conduct, including, but not
limited to, being incapable of providing
consent.
[N.J.S.A. 2C:14-2(a).]
Important to the elements of the offense is the meaning of
sexual penetration, which includes "fellatio . . . between persons
. . . ." N.J.S.A. 2C:14-1(c).
The word "fellatio" is not defined by N.J.S.A.
2C:14-1(c). Webster's Third New International
Dictionary, 836 (3d ed. 1981) defines
"fellatio" as "the practice of obtaining
sexual satisfaction by oral stimulation of the
penis." Thus, by definition, fellatio
constitutes a form of "sexual penetration"
under the statute notwithstanding the fact
that the victim's penis does not enter the
actor's mouth. Placement of the actor's mouth
on the victim's penis is sufficient to prove
a violation of N.J.S.A. 2C:14-1(a).
[State in re S.M., 284 N.J. Super. 611, 617
(App. Div. 1995).]
On appeal, defendant focuses his challenge to the alleged
absence of proof of the state of mind, urging
the only reference made during defendant's
[plea hearing] to a "knowing" state of mind
is that defendant knew who the person was that
was being referred to a "K.C." Although
defendant, who was intoxicated and smoking pot
on the date of the incident, acknowledged
performing an act of fellatio upon K.C.,
defendant was not asked whether, at the time
of the act he "knowingly" committed it.
Similarly, though defendant stated in court
that K.C. was "physically helpless and
otherwise incapacitated" when the fellatio
9 A-1029-15T3
occurred, he was not asked whether at the time
of the act he knew of K.C.'s incapacitated
condition or was of sufficient competence that
he should have known of K.C.'s incapacity.
We are not persuaded.
Importantly, a defendant's lack of knowledge that his conduct
is a criminal offense is not relevant. N.J.S.A. 2C:2-2(d)
provides, in pertinent part:
Neither knowledge nor recklessness nor
negligence as to whether conduct constitutes
an offense or as to the existence, meaning or
application of the law determining the
elements of an offense is an element of such
offense, unless the definition of the offense
or the code so provides.
See also State v. Rowland, 396 N.J. Super. 126, 128 (App. Div.
2007) ("With certain exceptions that are not relevant here, our
criminal code makes ignorance of the law irrelevant."), certif.
denied, 193 N.J. 587 (2008).
Moreover, a "defendant's admissions 'should be examined in
light of all surrounding circumstances and in the context of an
entire plea colloquy.'" Campfield, supra, 213 N.J. at 232 (quoting
State ex rel. T.M., 166 N.J. 319, 327 (2001)). "[D]ifferent
criminal charges and different defendants require courts to act
flexibly to achieve constitutional ends." Id. at 231 (2013)
(quoting T.M., supra, 166 N.J. at 327). Accordingly, the knowledge
10 A-1029-15T3
element can be gleaned from direct as well as circumstantial
evidence.
Essentially, defendant's argument suggests his plea colloquy
did not include proof he was aware he was committing an act of
sexual penetration and that K.C. was incapacitated. We disagree.
Defendant's plea contains his admission he fellated K.C.
"while" the victim was "physically helpless and otherwise
incapacitated." These admissions prove defendant not only knew
he was engaging in fellatio, but also that he knew K.C. was
incapacitated during the sexual assault. Defendant is hard-
pressed to prevail on an argument he did not know his manipulation
of K.C.'s genitalia, without K.C.'s consent, at a time K.C. was
unconscious, constituted a sexual assault.
Further, defendant's arguments choose to ignore the video,
which he himself created of the event. Although the video was not
played during the plea hearing, we will not ignore the plea was
sought as the parties were about to engage in jury selection, and
the video was significant evidence in the State's case.3 In the
video, defendant demonstrates the presence of mind and dexterity
to record himself performing the sexual assault on the
incapacitated victim.
3
The video was admitted and played at sentencing.
11 A-1029-15T3
Defendant also seeks to rely in part on his post-event
"blackout" as demonstrating he had no knowledge of the events. In
this regard, defendant suggests since he has no recollection of
his conduct, somehow the act was not completed with knowledge.
This too is rejected.
Had the judge or counsel probed details depicted on the video
or admitted in defendant's custodial statement, a more thorough
expression of defendant's state of mind on the night of the sexual
assault would have been in the record. We repeat the Supreme
Court's "caution" to judges and prosecutors stated in Campfield
to do just that so as to end all debate when eliciting from a
"defendant a comprehensive factual basis, addressing each element
of a given offense in substantial detail, when a defendant is
pleading guilty to that offense." Campfield, supra, 213 N.J. at
236. Nevertheless, we are satisfied defendant's admission he
"perform[ed] an act of fellatio on [K.C.] while he was physically
helpless and otherwise incapacitated" confirms defendant was aware
of the sexual act and the victim's condition when he assaulted
him. Therefore, we conclude defendant's guilty plea was properly
accompanied by a sufficient factual basis, as required by Rule
3:9-2, which is sufficient to uphold his conviction.
Defendant next challenges the application of aggravating
factor two as "double counting." Further, defendant challenges
12 A-1029-15T3
procedures during sentencing which deprived him of the
presentation of factual support for application of mitigating
factor eleven. We provide the factual findings by the trial judge
on these issues.
In imposing the sentence, the judge applied aggravating
factor three, because defendant's psychological evaluation found
he was a moderate risk for reoffending, which the judge accorded
"slightly substantial weight." Factor nine was also applied,
citing the need for general deterrence and the need to deter
defendant, to which the judge afforded "very substantial weight."
At issue here is the judge's application, by clear and convincing
evidence, of aggravating factor two.
Generally, application of aggravating factor two focuses on
whether "the defendant knew or reasonably should have known that
the victim of the offense was particularly vulnerable or incapable
of resistance due to advanced age, ill-health, or extreme youth,
or was for any other reason substantially incapable of exercising
normal physical or mental power of resistance[.]" State v.
Lawless, 214 N.J. 594, 599-600 (2013) (quoting N.J.S.A. 2C:44-
1(a)(2)). Defendant argues an element of the crime charged is
the victim is incapacitated or physically helpless. N.J.S.A.
2C:14-2(a)(7). Thus, he asserts the judge violated the principle
13 A-1029-15T3
prohibiting double counting any element of an offense as an
aggravating factor. State v. Kromphold, 162 N.J. 345, 353 (2000).
The judge's findings state factor two applies
"[s]pecifically because the victim was incapacitated and was
incapable of exercising normal physical or mental . . .
resistance." The judge elaborated adding:
this fact . . . requires a pragmatic
assessment of the totality of the harm
inflicted on the victim.
The victim states to this [c]ourt, . . .
that he has dealt with anger, shame, fear,
embarrassment, self-doubt, and disassociation
since the sexual assault.
The [c]ourt also takes into consideration
. . . the position taken by the victim's mother
in that regard as to the effect it has had
with regard to the . . . family unit.
The [c]ourt does find that that is [sic]
substantial weight.
The judge recognized the law "compels 'a pragmatic assessment
of the totality of harm inflicted by the offender on the victim.'"
Lawless, supra, 214 N.J. at 610 (quoting Kromphold, supra, 162
N.J. at 358). Further, the direct consequences of the crime upon
the victim may be considered. See State v. Soto, 340 N.J. Super.
47, 72 (App. Div.), certif. denied, 170 N.J. 209 (2001). However,
the findings erroneously considered and weighed inappropriate
facts in two respects.
14 A-1029-15T3
First, as noted, the judge expressly mentions the
vulnerability of the victim, because he was incapacitated. This
represents double counting, because the victim's incapacity is an
element of the crime. Second, the judge's remarks reflect
consideration of the impact upon the victim's family, which "is
irrelevant to the sentencing court's application of aggravating
factor two." Lawless, supra, 214 N.J. at 601. Because we have
no way of knowing which facts caused the court to accord the factor
"substantial weight," we must vacate defendant's sentence and
remand for resentencing.
Defendant also asserts the judge failed to consider evidence
he sought to present in mitigation of sentence. More specifically,
defendant offered character statements from two cousins and a
close family friend, in addition to his mother and sixty letters.
Further, defendant proffered a "corrections expert" opinion to
explain the hardships defendant would face in jail, "given his
. . . psychosexual characteristics," which he urged would
compromise his safety and life.
On the latter issue, although the judge denied the request
to present this expert, he accepted the State's stipulation
"go[ing] to prison" would be a hardship for defendant, read and
considered the expert's report and applied mitigating factor
eleven, giving it "slight weight."
15 A-1029-15T3
"[T]he Code requires an inexorable focus upon the offense
when formulating a sentence." State v. Roth, 95 N.J. 334, 367
(1984). The Code adoption was aimed at greater uniformity in
sentencing among defendants who commit the same crimes. Id. at
369.
Here, defendant's conviction carries a presumption of
incarceration. N.J.S.A. 2C:44-1(d). Defendant's struggle with
his sexual orientation is not an exceptional or compelling
circumstance that would impact the term of imprisonment.
Finally, whether to allow presentations from defendant's
family and friends rests within the trial judge's discretion.
Here, the judge permitted any party, who had not submitted a
letter, to speak on defendant's behalf. Because his cousins and
friend had provided written character submissions that the judge
reviewed, additional testimony restating the same facts was found
cumulative and deemed unnecessary. This decision does not
represent an abuse of discretion.
Accordingly, for the reasons stated, defendant's conviction
is affirmed. However, we vacate defendant's sentence and remand
for resentencing based on our discussion regarding the
applicability and weight of aggregating factor two.
Affirmed in part, reversed and remanded in part.
16 A-1029-15T3
STATE OF NEW JERSEY VS. TIMOTHY C. AMAN (13-11-1049 and 14-07-0548, CAPE MAY COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion