State v. Nametko

Full title: STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN NAMETKO…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Feb 5, 2014

DOCKET NO. A-3939-12T1 (App. Div. Feb. 5, 2014)

Opinion

DOCKET NO. A-3939-12T1

02-05-2014

STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN NAMETKO, Defendant-Appellant.

James H. Maynard argued the cause for appellant (Maynard & Sumner, LLC, attorneys; Mr. Maynard, of counsel and on the briefs). Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 12-06-0683.

James H. Maynard argued the cause for appellant (Maynard & Sumner, LLC, attorneys; Mr. Maynard, of counsel and on the briefs).

Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Jordao, on the brief). PER CURIAM

Defendant Brian Nametko appeals from the four-year term of imprisonment imposed following his plea of guilty to third- degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. We affirm.

In May 2002, defendant was adjudicated a delinquent for a crime, which if committed by an adult would constitute endangering the welfare of a child. The charges stemmed from his sexual assault of a seven-year-old girl. Defendant received a two-year suspended sentence, a three-year probationary term, and was subject to Megan's Law, N.J.S.A. 2C:7-1 to -23. He thereafter participated in sex offender treatment and individual psychotherapy. He was diagnosed with Bipolar disorder and placed on medication.

In May 2011, defendant, then age twenty-five, began communicating with K.M. He allegedly stopped taking his medication about two months prior thereto. He claimed that K.M. said she was eighteen-years-old and her family abused her. In June 2011, defendant and K.M. met in person and began a sexual relationship. There is no dispute that defendant knew K.M. was only fourteen years old before their relationship began.¹ The relationship ended in August 2011, when K.M.'s mother read about the relationship in K.M.'s diary and contacted the police. According to K.M., she wanted to end the relationship before then, when she discovered defendant's real age, but he threatened to have her parents arrested for abuse. According to defendant, he wanted to end the relationship, but K.M. threatened to commit suicide if he did so.

1 Defendant also knew K.M. was only fourteen years old when he sent her photos of his erect penis and when, at his request, she sent him nude photos of herself.

A grand jury indicted defendant on five counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(4); four counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b; third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and third-degree tampering with a witness, N.J.S.A. 2C:2 8-5a(2). Defendant agreed to plead guilty to the endangering charge, and reserved the right to request probation. The State agreed to recommend a three to five-year term of imprisonment and dismiss the remaining charges. At the plea hearing, defendant admitted he knew K.M. was under the age of sixteen when they engaged in sexual conduct.

At sentencing, defendant requested a suspended sentence and probation. He asked Judge Stuart Minkowitz to find all mitigating factors except number six.² He argued, in part, that his conduct neither caused nor threatened serious harm because the relationship was mutual and consensual and he cared for K.M.; as per In the Matter of Registrant E.I., 300 N.J. Super. 519 (App. Div. 1997), the sexual contact fell outside of the "heartland" of sexual assault cases in terms of sentencing because the relationship was mutual; he did not contemplate that his conduct would cause or threaten serious harm, but rather, he tried to prevent K.M. from harming herself; he acted under strong provocation because K.M. threatened to harm herself if he ended their relationship; and K.M. induced or facilitated the commission of the crime by misrepresenting her age and threatening to commit suicide if he ended their relationship;³ and he should be considered a youthful defendant because of his emotional immaturity and Bipolar disorder, N.J.S.A. 2C:44-1b(13).

2 N.J.S.A. 2C:44-1b(6), "[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service."

3 Defendant argued that K.M.'s misrepresentation of her age and threat to commit suicide were "super mitigating factors" because "but for" her conduct, "nothing would have happened."

Judge Minkowitz found that because N.J.S.A. 2C:43-6.4a mandated a sentence of parole supervision for life due to an endangering the welfare of a child conviction, N.J.S.A. 2C:43-2g precluded a probationary term.⁴ The judge also distinguished In the Matter of Registrant E.I., and determined it did not apply in this case.

4 N.J.S.A. 2C:43-6.4a provides, in pertinent part:

Notwithstanding any provision of law to the contrary, a judge imposing sentence on a person who has been convicted of . . . endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to [N.J.S.A. 2C:24-4a], . . . shall include, in addition to any sentence authorized by this Code, a special sentence of parole supervision for life.

Judge Minkowitz found aggravating factor N.J.S.A. 2C:44-1a(2):

The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim . . . 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.

The judge determined that defendant was eleven years older than K.M., and defendant admitted K.M was emotionally fragile and incapable of exercising normal mental powers of resistance based on her threat of suicide. The judge also found and gave "heavy weight" to aggravating factor N.J.S.A. 2C:44-1a(3), "[t]he risk that the defendant will commit another offense," and found and gave "significant weight" to aggravating factor N.J.S.A. 2C:44-1a(9), "[t]he need for deterring the defendant and others from violating the law."

Based on defendant's mental health issues, the judge found mitigating factor N.J.S.A. 2C:44-1b(4), "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." The judge found, but gave little weight to, mitigating factor N.J.S.A. 2C:44-1b(12), "[t]he willingness of the defendant to cooperate with law enforcement authorities."

In finding the aggravating and mitigating factors, Judge Minkowitz determined that defendant: engaged in a sexual relationship with the victim knowing she was only fourteen years old, emotionally fragile, and had threatened to commit suicide; blamed the victim and minimized his conduct; showed a lack of insight by voluntarily stopping his medication; failed to benefit from his sex offender treatment; was emotionally immature, which indicated a risk to re-offend; committed a similar offense as a juvenile; committed the present offense while under Megan's Law restrictions; re-offended despite receiving sex offender treatment and probation; and failed to show that imprisonment would entail an excessive hardship or that his conduct was influenced by another person more mature than him. The judge concluded that the aggravating factors outweighed the mitigating factors, and imposed a four-year term of imprisonment.

On appeal, defendant raises the following contentions:

POINT I
THE COURT SHOULD HAVE IMPOSED A SUSPENDED SENTENCE FOR THE APPELLANT, AS THE MITIGATING FACTORS OUTWEIGH THE AGGRAVATING FACTORS.
POINT II
THIS INCIDENT OCCURRED IN A MUTUAL RELATIONSHIP CONTEXT AND THEREFORE FALLS OUTSIDE OF THE HEARTLAND OF SEXUAL ASSAULT CASES IN TERMS OF SENTENCING.
POINT III
THE VICTIM'S MISREPRESENTATION OF HER AGE INDUCED AND FACILITATED THE DEFENDANT'S CONDUCT.
POINT IV
IMPRISONMENT WOULD BE A SERIOUS INJUSTICE WHICH OVERRIDES THE NEED TO DETER SUCH CONDUCT BY OTHERS.

Our review of a sentence is limited. State v. Miller, 2 05 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge "'were based upon competent credible evidence in the record.'" Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons Judge Minkowitz expressed at sentencing. We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.

Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION

N.J.S.A. 2C:43-2g provides that "[n]otwithstanding the provisions of paragraph (2) of subsection b. of this section, a court imposing sentence on a defendant who has been convicted of any offense enumerated in [N.J.S.A. 2C:43-6.4a] may not sentence the defendant to be placed on probation."