Opinion
DOCKET NO. A-5962-10T2
02-06-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY J. TOMASELLO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-02-0274.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Anthony J. Tomasello appeals from the November 17, 2010 order denying his petition for post-conviction relief (PCR). We affirm.
In August 2005, defendant had several internet communications with someone he believed to be a fourteen-year-old female in the ninth grade, identified by the screen name "KelliAnnNJ." Several of the communications were sexual in nature. Defendant suggested they meet and go to a motel where he would teach her how to have sex. They agreed to meet at a prearranged location and when defendant arrived, he was placed under arrest. "KelliAnnNJ" was actually a sergeant with the Ocean County Prosecutor's Computer Crimes Unit, posing in an undercover capacity.
A search warrant was obtained for defendant's car and residence. His computer was seized and found to contain graphic images of young females, some under the age of sixteen, engaged in sexual acts.
On June 20, 2006, an Ocean County grand jury returned an indictment charging defendant with second-degree attempted sexual assault. N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c). A superceding indictment returned in February 2007 added a charge of fourth-degree possession of child pornography. N.J.S.A. 2C:24-4b(5)(6).
On October 9, 2008, defendant entered a guilty plea to an amended charge of third-degree attempted endangering the welfare of a child. N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4. The State recommended a sentence of 364 days in county jail and agreed to dismiss the pornography charge. At sentencing on January 29, 2009, the judge decided not to impose jail time but ordered parole supervision for life pursuant to Megan's Law, N.J.S.A. 2C:7-1. On February 8, 2010, we affirmed defendant's sentence. State v. Tomasello, No. A-5985-08 (App. Div. Feb. 8, 2010).
On February 25, 2010, defendant filed a pro se PCR petition. On November 17, 2010, Judge Den Uyl heard oral argument. Defendant's PCR counsel conceded the sentence was not illegal and that he could not challenge the parole supervision. In an argument he termed "a very novel approach," he claimed defendant should not be subject to Megan's Law as there was no victim and "Megan's Law was intended to protect victims." He noted that defendant was a truck driver and he cannot leave the State unless his parole officer has twenty-four hour advance notice. He also mentioned that "[p]arole [s]upervision for [l]ife, sometimes, if they [ ] get the wrong parole officer, life could be very difficult."
In an oral opinion, Judge Den Uyl determined that defendant had failed to present a prima facie case of ineffective assistance of counsel and denied his petition. Defendant raises the following issue on appeal:
THE PENALTIES OF MEGAN'S LAW MUST BE VACATED BECAUSE TRIAL, APPELLATE AND PCR COUNSEL
DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO CHALLENGE THE MISAPPLICATION OF MEGAN'S LAW; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW.
We have carefully considered the arguments made by defendant and we are satisfied that they are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in the well-reasoned opinion of Judge Den Uyl.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION