STATE OF NEW JERSEY v. JHON ROTAVISKY (18-03-0312, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 20, 2022
• Docket: A-3582-19
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3582-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JHON ROTAVISKY,

Defendant-Appellant. ________________________

Submitted January 11, 2022 – Decided July 20, 2022

Before Judges Fisher and Smith.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 18-03-0312.

Joseph E. Krakora, Public Defender, attorney for appellant (Douglas R. Helman, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew J. Bruck, Acting Attorney General, attorney for respondent (Steven K. Cuttonaro, Deputy Attorney General, of counsel and on the brief).

PER CURIAM On May 6, 2019, defendant pled guilty to second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a)(1). Defendant was sentenced in August

2019 to a ten-year term of incarceration, with Megan's Law penalties and parole

supervision for life. He was between twenty-three and twenty-five years old at

the time he committed the offenses which led to the charge and thirty-two years

old at the time of his sentencing.

In October 2020, the Legislature passed an amendment to N.J.S.A. 2C:44-

1(b), adding factor fourteen, youth of the offender, to the list of mitigating

factors to be considered at sentencing. Defendant appeals, raising the following

points:

POINT I

THE LAW REQUIRING SENTENCING MITIGATION FOR YOUTHFUL DEFENDANTS DEMANDS RETROACTIVE APPLICATION BECAUSE THE [LEGISLATURE] INTENDED IT, THE NEW LAW IS AMELIORATIVE IN NATURE, THE SAVINGS STATUE IS INAPPLICABLE, AND FUNDAMENTAL FAIRNESS REQUIRES RETROACTIVITY (Not raised below)

A. The Legislature Intended Retroactive Application

B. The Savings Statute Does Not Preclude Retroactive Application of Ameliorative Legislative Changes, Like the One at Issue Here.

A-3582-19 2 C. Retroactive Application of the Mitigating Factor Is Required as a Matter of Fundamental Fairness, and to Effectuate the Remedial Purpose of the Sentencing Commission’s Efforts Regarding Juvenile Sentencing

POINT II

IRRESPECTIVE OF THE COURT’S DECISION ON RETROACTIVITY, THIS MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT IMPROPERLY CONSIDERED ALLEGATIONS OUTSIDE THE RECORD AT THE SENTENCING HEARING, AND THE COURT FAILED TO ACCOUNT FOR ROTAVISKY’S INTELLECTUAL CHALLENGES. (Partially raised below)

We reject defendant's arguments and affirm.

Between 2010 and 2012, defendant lived off and on with his girlfriend,

L.R., in her apartment. C.R., L.R.'s niece, also lived at the apartment during this

time.1 At all relevant times, C.R. was between four and seven years old and

defendant had supervisory responsibility over the child. In 2018, C.R. reported

to police that defendant had sexually assaulted her three or four times between

April 2010 and April 2012. Defendant was indicted and charged with one count

1 We use fictitious names and initials to protect the identity of defendant's girlfriend, as well as her niece, the victim. R. 1:38-3(c)(1). A-3582-19 3 of first-degree aggravated sexual assault of a victim under age thirteen, N.J.S.A.

2C:14-2(a) (1); one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b);

one count of third-degree endangering by sexual conduct with a child by a non-

caretaker, N.J.S.A. 2C:24-4(a)(1); one count of fourth-degree obstruction,

N.J.S.A. 2C:29-1; and one count of third-degree bail jumping, N.J.S.A. 2C:29-

7.

On May 6, 2019, defendant pleaded guilty to an amended count of second-

degree endangering by sexual conduct with a child by a caretaker, N.J.S.A.

2C:24-4(a)(1). In exchange for the plea, the State agreed to recommend ten

years in prison, the maximum sentence on a second-degree charge. The

remaining counts were dismissed.

At the sentencing hearing, the State introduced a written victim impact

statement from C.R., as well as victim impact testimony from C.R.'s father. The

father stated to the court that his daughter, C.R., had attempted suicide three

times and had been hospitalized with what he alleged were anxiety and mental

health challenges.

The sentencing court weighed the aggravating and mitigating factors. The

court found aggravating factors one, "[t]he nature and circumstances of the

offense, . . . including whether or not it was committed in an especially heinous,

A-3582-19 4 cruel, or depraved manner," N.J.S.A. 2C:44-1(a)(1); two, "[t]he gravity and

seriousness of harm inflicted on the victim," N.J.S.A. 2C:44-1(a)(2); three,

"[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-

1(a)(3); four, "the defendant took advantage of a position of trust or confidence

to commit the offense," N.J.S.A. 2C:44-1(a)(4); and nine, "[t]he need for

deterring the defendant and others from violating the law," N.J.S.A. 2C:44-

1(a)(9). The court found mitigating factor seven, "[t]he defendant has no history

of prior . . . criminal activity," N.J.S.A. 2C:44-1(b)(7); and rejected mitigating

factors nine, "[t]he character and attitude of the defendant indicate that [he] is

unlikely to commit another offense," N.J.S.A. 2C:44-1(b)(9); and ten, "[t]he

defendant is particularly likely to respond affirmatively to probationary

treatment," N.J.S.A. 2C:44-1(b)(10). Defendant did not ask the court to consider

his age at the time he committed the offenses as a non-statutory mitigating

factor. He was thirty-two at the time of sentencing. The court noted that

defendant was "certainly an adult at the time [of the offenses]," and sentenced

defendant on August 12, 2019. Fourteen months later, the Legislature amended

N.J.S.A. 2C:44-1(b) on October 19, 2020. Defendant appealed.

We first address the retroactivity question. Defendant argues his sentence

should be vacated and that he should be sentenced in accordance with the

A-3582-19 5 recently enacted criteria set forth in N.J.S.A. 2C:44-1(b)(14), even though his

sentence was handed down months before its enactment. We disagree for the

reasons set forth in State v. Lane, __ N.J. __, __ (2022) (slip op.at 21). The

Court found, after applying standard principles of statutory construction, that

the Legislature intended that N.J.S.A. 2C:44-1(b)(14) be applied prospectively

only. Id. at 20.

We turn to defendant's second argument. He contends the sentencing

court erred by considering facts outside of the record. As a corollary, defendant

argues that if we reverse and remand on this point, the court must weigh

mitigating factor fourteen at resentencing. See id. at 21 n.3; see also State v.

Bellamy, 468 N.J. Super. 29, 45 (App. Div. 2021). We are not persuaded as to

defendant's second point, and consequently do not reach the resentencing issue.

We deferentially review a trial court's sentencing determination and do

not substitute our judgment for that of the sentencing court. State v. Rivera, 249

N.J. 285, 297 (2021). We affirm unless the sentencing guidelines are violated,

the aggravating and mitigating factors found are not based upon competent

credible evidence in the record, or the trial court's application of the sentencing

guidelines make the sentence so clearly unreasonable as to shock the judicial

conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

A-3582-19 6 Defendant objected after C.R.'s father mentioned her suicide-related

hospitalizations during his impact statement. Defendant argued that the

references to C.R.'s hospitalizations should not be considered by the court

without production of the related hospital records. The court noted, and

defendant conceded, that it had given defendant the opportunity to file a motion

to obtain C.R.'s hospital records prior to sentencing, and that defendant elected

not to do so. The court went on to find that, even without consideration of the

suicide attempts, it was reasonable to infer that a child "that suffered sexual

abuse would suffer psychological harm."

The court went on to make detailed findings to support each of the

aggravating and mitigating factors it concluded were applicable. The court

found the aggravating factors clearly and convincingly outweighed the

mitigating factors and imposed the agreed-upon sentence. After a careful review

of the record, we discern nothing to indicate that the court relied upon the victim

impact statements by C.R. or her parents in sentencing defendant and we find

no error.

For the first time, defendant argues the sentencing court erred because it

"failed to account for [defendant's] intellectual challenges" in imposing the

agreed-upon sentence. Although we may consider allegations of errors or

A-3582-19 7 omissions not brought to the court's attention if they meet the plain error

standard under Rule 2:10-2, we frequently decline to consider issues not raised

below nor properly presented on appeal. See State v. Walker, 385 N.J. Super.

388, 410 (App. Div. 2006). The record 2 shows that this is such an occasion.

To the extent that we have not addressed any remaining arguments by

defendant, it is because they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

2 The record shows that defendant emigrated from Columbia and completed high school and some college, both in the United States. Defendant learned English in the United States and declined an interpreter for his court proceedings in this matter. For several years prior to his arrest, he worked as a cellphone tower technician, a position that requires a meaningful level of technical understanding and skill. A-3582-19 8