STATE OF NEW JERSEY v. LORENZO DALOISIO

We briefly summarize the relevant facts and procedural

history. On August 15, 2012, at around 2:00 p.m., M.M. took her

two children W.M. and V.M. to see a movie at a theater in Brick

Township. W.M. was seven years old, and V.M. was three years

old.

After watching the movie for approximately forty-five

minutes, M.M. heard noises behind her. She stood up and turned

around. She observed defendant, who was seated directly behind

W.M. According to M.M., defendant had his pants pulled down

half-way. He was holding his penis and masturbating. M.M. yelled

at defendant, who quickly pulled up his pants and ran out of the

theater.

M.M. pursued defendant and informed one of the theater's

employees that defendant had exposed himself and ran out of the

theater. The theater employee observed defendant getting into

his car, and prevented him from leaving. Defendant reportedly

was sweating profusely. He said he did not hurt anyone, and

asked the employee not to call the police. The theater's manager

then spoke with defendant, who said he had been watching a movie

and "got a little excited." Defendant stated that he had been

"touching" himself but did not hurt anyone.

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The police were called. Two officers from the Township's

police department responded to the scene. One of the officers

spoke with M.M., who provided the details of the incident. The

other officer spoke with defendant. Defendant said that, during

the movie, he had gone to the rest room. He claimed that he

forgot to zip up his pants when he returned to his seat.

Defendant was arrested and transported to police headquarters.

Defendant was informed of his Miranda rights,1 and he orally

waived those rights. Thereafter, defendant was interviewed by

detectives from the Sex Crimes Unit of the Ocean County

Prosecutor's Office. Defendant said he did not know why he was

there. The detectives told him he was there because a witness

reported that he had been masturbating in a movie theater.

Defendant stated that he wished he could have done that,

but claimed he could not get an erection. He said he could only

"use it for the toilet." One of the detectives asked why M.M.

turned around to look at him during the movie. He replied that

perhaps M.M. "wanted to see the show." Defendant asked,

"[W]hat's the big deal if you see a penis[?]"

Defendant was charged with second-degree sexual assault

(W.M.), N.J.S.A. 2C:14-2(b) (count one); third-degree

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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endangering the welfare of a child (W.M.), N.J.S.A. 2C:24-4(a)

(count two); second-degree sexual assault (V.M.), N.J.S.A.

2C:14-2(b) (count three); and third-degree endangering the

welfare of a child (V.M.), N.J.S.A. 2C:24-4(a) (count four).

On May 20, 2013, defendant pled guilty to the two

endangering counts pursuant to a plea agreement. The State

agreed that defendant would be sentenced to probation; required

to comply with Megan's Law, N.J.S.A. 2C:7-1 to -23, and Nicole's

Law, N.J.S.A. 2C:14-12, N.J.S.A. 2C:44-8, N.J.S.A. 2C:45-1, and

N.J.S.A. 2C:45-2; and that defendant would be subject to parole

supervision for life (PSL). The State agreed to dismiss the

other charges.

At the plea hearing, defendant stated that he had reviewed

the plea forms with his attorney and signed those forms. He

understood all of the questions on the forms. In addition, he

had sufficient time to discuss the forms with his attorney. He

stated that his attorney had explained PSL to him. He also

understood that he was going to have to register with the

"proper authorities," which could affect where he lives, and who

he lives with. Defendant then provided a factual basis for his

plea.

On September 20, 2013, the judge sentenced defendant in

accordance with the plea. He was placed on PSL, and ordered to

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comply with Megan's Law and Nicole's Law. The judge also imposed

appropriate fines and penalties. Defendant did not file a direct

appeal.

On July 23, 2014, defendant filed a motion to withdraw his

plea. He alleged the plea was the result of ineffective

assistance of plea counsel. He claimed that counsel failed to

inform him of the strengths of his case and the consequences of

conviction; failed to inform him that he could prevail at trial

since there was no evidence that the children observed his

actions; and failed to advise him of the consequences of PSL.

The judge considered the matter on October 24, 2014, and

placed her decision on the record that day. The judge rejected

defendant's contention that the plea was not entered knowingly

and voluntarily. The judge noted that defendant claimed he had

not been informed of the consequences of PSL, and did not know

that it would preclude him from spending time with his

grandchildren or visiting his vacation home in Florida. The

judge noted that, when he entered his plea, defendant stated

that he had reviewed the plea forms with counsel, and said he

understood it could affect where he lives and who he could live

with.

The judge considered defendant's motion to withdraw the

plea in light of the criteria set forth in State v. Slater, 198

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N.J. 145 (2009). The judge noted that defendant had not asserted

a claim of innocence. The judge pointed out that defendant made

statements implicating himself to investigators, and witnesses

had identified him as the perpetrator of the offenses. The judge

stated that the evidence indicated that the State's case was

strong.

The judge found that defendant had not asserted valid

reasons to withdraw the plea, and pointed out there was nothing

in the record indicating defendant had been misinformed

concerning the plea or its consequences. The judge noted that

defendant had entered his plea pursuant to a plea agreement, but

gave that factor little weight.

The judge found that the State would be prejudiced if

defendant was allowed to withdraw the plea, because the State

and the victims had an interest in finality. Even so, this

factor weighed "slightly" in defendant's favor. The judge

determined, however, that "the other factors still

overwhelmingly weigh in favor of not rejecting the plea at this

point."

The judge also considered defendant's claim of ineffective

assistance of counsel under the standards set forth in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). The judge found no merit in the claim. The

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judge stated that the record did not support defendant's

assertion that his plea counsel pressured him into the plea

agreement, and failed to discuss the strengths and weaknesses of

the case. The judge noted that, when defendant entered his plea,

he stated that he was satisfied with the representation counsel

provided to him.

In addition, the judge rejected defendant's contention that

counsel erred by failing to advise him that he could not be

found guilty of sexual assault if the victims had not observed

his actions in the movie theater. The judge noted that defendant

could be found guilty if there was an unreasonable risk that a

minor could view his sexual conduct.

The judge entered an order dated October 24, 2014, denying

defendant's motion. He appeals and raises the following

arguments:

POINT I THE LAW DIVISION ERRED IN DENYING DEFENDANT'S PLEA WITHDRAWAL MOTION BASED ON MISINFORMATION BY COUNSEL AS TO THE CONSEQUENCES OF PAROLE SUPERVISION FOR LIFE AND OTHER CONDUCT, CONSTITUTING INEFFECTIVE ASSISTANCE OF COUNSEL. THUS, THE PLEA SHOULD BE VACATED FOR PROPER DISPOSITION.

POINT II DEFENDANT'S GUILTY PLEA TO N.J.S.A. 2C:44(a) MUST BE VACATED GIVEN THE LACK OF A SUFFICIENT FACTUAL BASIS UNDER THE RULES AND RECENT CASE LAW.

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II.

Defendant argues that his plea must be vacated because he

did not provide a factual basis for the plea. At the plea

hearing, defendant stated that on August 15, 2015, he had gone

to the movie theater and was seated behind a couple of children.

The following colloquy between defendant and his attorney

ensued:

Q. And you engaged in sexual conduct, specifically, you touched yourself for sexual gratification?

A. Yes.

Q. Or the potential humiliation of those children, had they observed you, and you did that in the theater, sir?

A. Yes.

Q. And you understand that doing that within the presence of those children could endanger the welfare of those children?

A. Yes.

Q. And do you understand that engaging in sexual conduct and contact with yourself in those children's presence makes you guilty of the charge of Endangering the Welfare of a Child?

A. Yes.

Q. And there were two children involved and that's why there [are] two counts. Do you understand that?

A. Yes.

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Q. And you in fact want to enter a guilty plea to the two counts of Endangering the Welfare of a Child?

A. Yes. Defendant contends that the plea colloquy failed to

establish all of the elements of third-degree endangering the

welfare of a child under N.J.S.A. 2C:24-4(a), which states:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-8.21] is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of [sixteen] is guilty of a crime of the third degree.[2]

The term "sexual conduct" is not defined in N.J.S.A. 2C:24-4(a);

however, it includes sexual assault and sexual contact as those

terms are used in chapter 14 of the criminal code. See State v.

D.R., 109 N.J. 348, 377-78 (1988); State v. Miller, 108 N.J.

112, 118-20 (1987).

The term "sexual contact" as defined in N.J.S.A. 2C:14

1(d), includes an actor's intentional touching of his "intimate

2 This quote reflects the wording of the statute in effect when defendant was charged in 2012. The statute has since been amended, but the provisions relevant to this appeal remain the same. See L. 2013, c. 51, § 13; L. 2013, c. 136, § 1.

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parts for the purpose of degrading or humiliating the victim or

sexually arousing or sexually gratifying the actor." The

statutory definition also states, "[s]exual contact of the actor

with himself must be in view of the victim whom the actor knows

to be present." Ibid.

In State v. Zeidell, 154 N.J. 417, 419 (1998), the

defendant was convicted of two counts of second-degree sexual

assault upon two minors, who were eight and ten years old,

respectively; two counts of endangering the welfare of those two

children; and two counts of fourth-degree lewdness. The evidence

at trial indicated that the two children were with an adult

caretaker on the beach. Id. at 420. The defendant was standing

at the end of the boardwalk, about seventy-five feet from where

the caretaker and the children were playing. Ibid. The caretaker

and the children said they saw defendant masturbating. Ibid.

The Appellate Division had reversed the defendant's sexual

assault convictions, holding that to commit tender-years sexual

assault, the actor must cause, invite, or specifically solicit

the underage person to view the conduct. Id. at 421-22 (citing

State v. Zeidell, 299 N.J. Super. 613, 621-22 (App. Div. 1997)).

However, the Supreme Court held that tender-years sexual assault

under N.J.S.A. 2C:14-2b contains three key elements: "(1) a

victim who is less than thirteen years old, (2) a defendant

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actor who is at least four years older than the victim, and (3)

a sexual contact with a victim under the critical age." Id. at

428. The Court added:

The sexual contact with a victim involves an intentional or purposeful touching of an intimate part. There are three types of intentional sexual touchings: the actor may touch himself or herself, the actor may touch the victim, or the victim may touch the actor. Each such intentional touching must be for at least one of four purposes: either degrading or humiliating the victim, or sexually arousing or sexually gratifying the defendant-actor. Finally, if the touching is by the actor of himself or herself, the sexual touching must be in the view of the victim whom the actor knows to be present.

[Ibid.]

The Court distinguished tender-years sexual assault from

lewdness, which involves the actor's exposing or displaying his

or her private parts for sexual arousal or gratification under

circumstances in which the actor "knows or expects" that he or

she is likely to be observed by a child less than thirteen years

old. Id. at 430 (citing N.J.S.A. 2C:14-14b(1)). The Court stated

that

unlike lewdness, sexual assault does not require the underage child to actually observe the touching. The requirement "in the view of" an underage child does not require any mens rea at all; it is a factual question: Was the prohibited act done in the child's field of vision or not? Alternatively, "in view of" could be

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interpreted to mean that there were unreasonable risks that an underage child present might view the act.

[Id. at 431.]

In State v. Breitweiser, 373 N.J. Super. 271, 276 (App.

Div. 2004), certif. denied, 182 N.J. 628 (2005), the defendant

was convicted of second-degree tender-years sexual assault under

N.J.S.A. 2C:14-2b. The evidence indicated that the defendant

walked down an aisle in a supermarket towards a child, who was

eight years old. Id. at 278-79. The defendant began to

masturbate through his jeans. Id. at 279. The defendant stood

directly behind the child, who turned around and noticed that he

was there. Id. at 280. It was undisputed that the child never

saw the defendant touch himself, and left the store with her

parents "unaware that anything untoward had taken place." Id. at

281.

We affirmed the defendant's conviction, holding that the

State did not have to prove that the child actually observed the

defendant's act, and it was sufficient if there was an

unreasonable risk that the child would see the defendant engage

in the sexual contact. Id. at 284. We stated that the fact that

the child "was facing away from [the defendant] is of no moment.

There was clearly an unreasonable risk that she would turn her

head and look behind her, which she did at one point." Ibid. We

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held that in order to establish that sexual contact occurred "in

the view of" the underage victim, it is sufficient for the State

to prove that the underage victim either observed the act or

that "there was an unreasonable risk that the underage child

might view the act." Id. at 286-87.

We are therefore convinced that defendant provided an

adequate factual basis for his plea. As noted, at the plea

hearing, defendant admitted that he touched himself for sexual

gratification in the movie theater. He said he did so in the

presence of the children. The fact that defendant did not state

that the children actually observed him engaging in this sexual

conduct is irrelevant. The children were in his presence and

there was an unreasonable risk they might turn around and view

his act.

III.

Defendant also argues that the judge erred by refusing to

allow him to withdraw his plea. He contends he was denied the

effective assistance of plea counsel. He maintains his plea

attorney misadvised him concerning the consequences of the plea,

and failed to discuss the strengths and weaknesses of the case.

Defendant's claim that he was denied the effective

assistance of counsel as guaranteed by the Sixth Amendment to

the United States Constitution is considered under the standards

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enunciated in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674, which our Supreme Court has adopted for

evaluating ineffective assistance of counsel claims under our

State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

Under Strickland, a defendant first must show that his

attorney's handling of the matter "fell below an objective

standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80

L. Ed. 2d at 693. A defendant also must show that there exists a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The Strickland test also applies to challenges to plea

agreements, based on the alleged ineffective assistance of

counsel. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366,

370, 88 L. Ed. 2d 203, 210 (1985); State v. DiFrisco, 137 N.J.

434, 456-57 (1994). To set aside a guilty plea on this basis,

the defendant must show that counsel failed to provide advice

that "'was within the range of competence demanded of attorneys

in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S. Ct. at

369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S.

759, 771, (1970)). The defendant also must establish that "there

is a reasonable probability that, but for counsel's errors, he

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would not have pleaded guilty and would have insisted on going

to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

Defendant asserts that his attorney misadvised him

concerning the consequences of the plea, specifically PSL and

sex-offender registration under Megan's Law. In support of these

claims, defendant submitted to the PCR court transcribed

statements that defendant, his son, and his daughter-in-law made

to an investigator; however, neither defendant, his son, nor his

daughter-in-law submitted an affidavit or certification

indicating that they made these statements.

In any event, in his unsworn statement, defendant said plea

counsel misadvised him concerning the consequences of PSL and

sex-offender registration under Megan's Law. He stated that his

attorney told him he could travel out of state and only had to

report to the police once a year. He asserted that, after he

pled guilty, he learned that he would have to report to the

police and his parole officer from time to time, and this would

affect his ability to travel to his vacation home in Florida.

Defendant's daughter-in-law made similar statements. She said

that, after he pled guilty, defendant learned that he could not

be in the company of his grandchildren or visit their schools.

The motion judge found that defendant did not establish he

was unaware that, if he pled guilty, he would be subject to PSL,

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and that PSL would affect his ability to travel and could

restrict the persons with whom he could interact. As the judge

noted, this had been explained to defendant when he entered the

plea, and he stated that he understood.

The judge also pointed out that defendant had signed a plea

form, which indicated that he understood he would be subject to

PSL, with certain conditions that "may include restrictions on

where you can live, work, travel or persons you can contact." On

the plea form, defendant also indicated he understood that he

may be subject to limitations on where he could live, which "may

include restrictions on residing in a home with minor children."

In addition, on the plea form, defendant indicated that he

knew he would have to register with the law enforcement agency

in the municipality in which he resides, or the State Police, if

the municipality does not have a chief law enforcement officer.

The form stated that defendant would have to re-register if he

changed his address.

The record therefore supports the motion judge's finding

that defendant was informed of the material consequences of

Megan's Law registration and PSL. State v. Williams, 342 N.J.

Super. 83, 91-92 (App. Div. 2001). Furthermore, plea counsel was

not required to inform defendant of all the potential

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consequences of PSL. State v. Jamgochian, 363 N.J. Super. 220,

227 (App. Div. 2003).

We note that, at the plea hearing, defendant indicated that

he had no questions concerning the consequences of the plea, and

that he was satisfied with the advice he was given by his

attorney. Defendant's assertion that he was not aware that PSL

would affect his ability to travel to his vacation home in

Florida, or the persons with whom he could have contact, is

refuted by the statements defendant made at the plea hearing.

Defendant also argues that his attorney erred by failing to

discuss the strengths and weaknesses of his case. He contends

his attorney misperceived the elements of the offense,

specifically with regard to the requirement that his sexual

conduct be "in the view of" the underage victims. He contends

his attorney failed to tell him the State had to prove the

children actually observed his sexual conduct in the theater.

As we have explained, however, to be convicted of

endangering the welfare of a child, the State was only required

to establish that there was an unreasonable risk that the

children would observe defendant masturbating in the theater.

Defendant's contention that his attorney misperceived the

elements of the offense is meritless.

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We also reject defendant's contention that the court should

have conducted an evidentiary hearing on his PCR claim. Such a

hearing is required when the defendant presents a prima facie

case for PCR, the existing record is inadequate to resolve the

defendant's claims, and the court determines an evidentiary

hearing is required.

Here, the existing record provided an adequate basis for the court to rule on defendant's claims. Moreover, defendant failed to establish a prima facie case for PCR. Thus, an evidentiary hearing was not required.



Affirmed.