STATE OF NEW JERSEY v. FELIX RESTITULLO (14-10-1616, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 14, 2022
• Docket: A-2799-19
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." 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-2799-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FELIX RESTITULLO,

Defendant-Appellant. _________________________

Submitted November 4, 2021 – Decided January 14, 2022

Before Judges Hoffman and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-10-1616.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).

PER CURIAM Defendant Felix Restitullo appeals from a February 3, 2020 order issued

by Judge Patrick Arre transferring him to the custody of the United States

Bureau of Prisons to serve his forty-year sentence on his federal convictions for

production and possession of child pornography. Defendant contends that he

did not consent to the transfer from the State facility at which he is presently

incarcerated, the New Jersey Adult Diagnostic and Treatment Center (ADTC)

(also known as "Avenel"). He also contends that the transfer will deprive him

of the sex offender treatment he claims was promised as part of his guilty plea

to aggravated sexual assault, N.J.S.A. 2C:14-2(a). We reject these contentions

and affirm the transfer order substantially for the reasons explained in Judge

Arre's oral decision on the record and his written opinion accompanying the

order.

I.

We briefly summarize the facts and procedural history relevant to this

appeal. In 2014, defendant's niece mentioned to a friend that he had sex with

her when she was seven years old. The friend reported it to the school nurse and

principal. During an interview, the niece stated that defendant touched her

sexually and also touched another child who was six years old at the time. One

of the victims revealed that defendant "would take pictures of her butt with his

A-2799-19 2 silver camera which he gets from his bedroom closet and he sends it to his

friends."

Defendant was arrested in early 2014. A search of his home revealed a

collection of child pornography hidden in his bedroom, including multiple

images of defendant sexually abusing his niece. On October 8, 2014, a grand

jury charged defendant with two counts of second-degree sexual assault,

N.J.S.A. 2C:14-2(b); two counts of third-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a); fourth-degree child abuse/neglect, N.J.S.A. 9:6-1

and 9:6-3; and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a).

Defendant was in custody while awaiting the disposition of the State charges.

On July 23, 2015, federal prosecutors filed a complaint charging

defendant with production and possession of child pornography. A writ of

habeas corpus ad prosequendum dated July 27, 2015, transferred defendant to

federal custody so that he could appear in federal court for his initial appearance

on July 30, 2015. During that hearing, defendant consented to being remanded

into federal custody, which allowed him to receive credit for time served against

any potential federal sentence.

A-2799-19 3 Defendant was tried in federal court and found guilty of both child

pornography charges. On September 8, 2017, he was sentenced to federal prison

for a term of 480 months (forty years).

Defendant was eventually transferred back to State custody to resolve his

State charges. On October 20, 2017, defendant pled guilty to first-degree

aggravated sexual assault pursuant to a negotiated agreement. The plea form

specified that the prosecutor would recommend a ten-year prison term, subject

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, which would run

concurrent with the federal sentence. The plea form also expressly provided for

"[the] sentence to be served in Federal Prison." During the plea hearing, the

judge told defendant that he would "be subject to . . . [an] Avenel evaluation . .

. ."

On February 16, 2018, defendant was sentenced in accordance with the

plea agreement. On May 21, 2019, the prosecutor filed a motion for an order

transferring defendant to federal custody. Judge Arre convened hearings on the

motion on December 2, 2019, and January 16, 2020. On February 3, 2020, the

judge rendered an oral decision on the record granting the State's motion. Judge

Arre also issued a written opinion accompanying the order.

A-2799-19 4 Defendant filed a notice of appeal on March 16, 2020. Initially, the matter

was scheduled to be heard on a sentencing oral argument (SOA) calendar. On

January 20, 2021, defendant's appellate counsel requested the matter be

transferred from the SOA calendar to the plenary calendar.

Defendant raises the following contentions for our consideration:

POINT I

THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO TRANSFER DEFENDANT TO FEDERAL CUSTODY TO SERVE HIS STATE SENTENCE BECAUSE, PRIOR TO SENTENCING, DEFENDANT HAD ONLY BEEN PLACED IN TEMPORARY FEDERAL CUSTODY PURSUANT TO A WRIT OF HABEAS CORPUS AD PROSEQUENDUM, AND THEREFORE, NEW JERSEY DID NOT RELINQUISH PRIMARY JURISDICTION. ADDITIONALLY, THE COURT'S FINDING THAT DEFENDANT CONSENTED TO TRANSFER HIS PLACE OF PRIMARY CUSTODY TO FEDERAL PRISON IS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD.

POINT II

THE TRIAL COURT'S ORDER SHOULD ALSO BE REVERSED BECAUSE IT DEPRIVED DEFENDANT OF THE SEX OFFENDER TREATMENT HE WAS PROMISED AS A RESULT OF HIS PLEA.

A-2799-19 5 II.

We first address defendant's contention that a transfer to federal prison

would be invalid because he did not give his consent. That contention lacks

sufficient merit to warrant extensive discussion. See R. 2:11-3(e)(2). Defendant

cites no authority for the proposition that State officials require an inmate's

consent to transfer him or her to a federal prison to serve a federal sentence.

Defendant relies on the fact that in 2015, while awaiting disposition of both the

State and federal charges, he appeared before a federal Magistrate and consented

to being remanded to federal custody. Defendant conflates the process of

essentially extraditing a presumptively-innocent person to another jurisdiction

with the process of transferring an inmate convicted of both State and federal

crimes from a State correctional facility to a federal penitentiary. The concept

of consent implies a waiver of an acknowledged right. We believe that in the

circumstances of this case, defendant has no right to decide where he serves his

imprisonment, especially since his plea agreement expressly and unambiguously

provides that he is to serve his concurrent sentences in federal prison.

That brings us to defendant's contention that the transfer would violate the

terms of his plea agreement. That argument is belied by the record. We

acknowledge that a plea agreement can only be an "effective instrument for

A-2799-19 6 criminal justice" if it is "meticulously honored by a sentencing judge" and

accords the defendant his or her reasonable expectations. State v. Marzolf, 79

N.J. 167, 183 (1979) (quoting State v. Jackson, 138 N.J. Super. 431, 434 (App.

Div. 1976)) (internal citations omitted). Accordingly, "[w]here the accused's

reasonable expectations are defeated, the plea bargain has failed one of its

essential purposes, fairness . . . . " Id. at 183; see also State v. Kovach, 91 N.J.

476, 483 (1982) (explaining that "the terms of a plea agreement must be

followed scrupulously . . . and . . . a defendant's reasonable expectations must

be fulfilled . . . ."). As our Supreme Court stressed in Marzolf, "[t]here is a

difference, however, between expectations reasonably grounded in terms of the

plea bargain and wishful thinking." 79 N.J. at 183.

As Judge Arre aptly noted, defendant's argument ignores the critical fact

that his plea agreement specifically provided for his custodial sentence to be

served in federal prison. Question thirteen on the plea form reads:

Specify any sentence the prosecutor has agreed to recommend: 10 years (NERA)/sentence to run concurrent w/Federal sentence. Time served since date of arrest. Sentence to be served in Federal Prison. Megan's Law/PSL/Avenel/NLRO

The record thus shows that defendant, when pleading guilty, understood

and agreed that his State sentence would be served in federal prison. Ironically,

A-2799-19 7 defendant relies on cases that guarantee that plea agreements are effectuated in

accordance with their terms, while asking us to disregard a clear term of his own

plea agreement.

We also reject defendant's contention that the transfer to a federal prison

is foreclosed because it would "deprive[] defendant of the sex offender treatment

he was promised as a result of his plea." In support of that contention, defendant

claims that sex offender treatment at Avenel was "one of the plea conditions."

The record belies that assertion as well. The plea form refers to "Avenel," but

does not specify whether this means admission to Avenel or an Avenel

evaluation. During the plea hearing, moreover, the judge told defendant that

"you'll be subject to . . . [an] Avenel evaluation . . . ." At no point did the judge

or prosecutor promise defendant treatment at Avenel.

The record shows that defendant underwent an examination to first

determine whether he is clinically eligible for sentencing pursuant to the New

Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10 on January 11 and 17, 2018.

His guilty plea was entered on October 20, 2017, well before the clinical

evaluation. In these circumstances, defendant cannot show either that he was

promised sex offender treatment at Avenel or that it would be an objectively

reasonable expectation that he would receive such treatment.

A-2799-19 8 We add that the Avenel psychologist's written recommendation confirms

that defendant knew that he would serve his sentence in federal prison. 1 We

thus conclude, as did the trial court, that defendant's expectation under the plea

agreement was that he would serve his sentence in federal prison, not at Avenel.

As we have noted, although defendant's argument is couched in terms of

effectuating his plea agreement, the relief he requests actually would frustrate

rather than advance the clearly-expressed terms of that plea agreement.

Finally, we note in the interests of completeness that defendant's ten -year

NERA State sentence will end long before the concurrent federal sentence runs

its course. Indeed, defendant acknowledges in his appeals brief that, as of the

time that brief was submitted, he only has about fourteen months remaining on

his New Jersey sentence. His transfer to federal prison is thus inevitable. It will

be for federal correctional officials to decide what treatment, if any, he receives.

In any event, we are satisfied that with or without any rehabilitative benefits

from sex offender treatment, defendant's forty-year federal sentence will ensure

1 The evaluation states, "[Defendant] state[d] that he expects to serve his sentence in a federal prison . . . ." We also note that the psychologist's recommendation that defendant was clinically eligible for sex offender treatment at Avenel was conditional, noting: "[i]f [defendant] is to be incarcerated in New Jersey, treatment at the Adult Diagnostic and Treatment Center [Avenel] is the most appropriate replacement." A-2799-19 9 that he is incapacitated from repeating his crimes involving children and that he

will not sexually abuse or exploit children for a long time to come.

We appreciate that defendant would prefer to remain at Avenel until his

State sentence expires. But that is not his decision to make. Nor is it ours. In

the final analysis, his transfer to federal prison is not precluded by the terms of

his plea agreement. To the contrary, that transfer is in complete accordance with

the plea agreement he negotiated and accepted.

Affirmed.

A-2799-19 10