STATE OF NEW JERSEY v. JOSEPH GEMBARSKI (2011)

Defendant Joseph Gembarski appeals from an order dated July 8, 2009, denying his petition for post-conviction relief (PCR).  We affirm.

Pursuant to a plea agreement, defendant pled guilty to first-degree aggravated sexual assault (count one) and second-degree sexual assault (count four).   In exchange for the guilty pleas, the State agreed to recommend that defendant's sentence on count one would not exceed fifteen years with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed to recommend a concurrent seven-year sentence on count four and to dismiss other charges.

At his plea hearing on November 17, 2005, defendant admitted that the offenses occurred in 2001 and that the victims were two young girls.   In addition, he acknowledged his attorney had reviewed each of the plea forms with him, and defendant confirmed he understood all of the questions he answered.   Defendant also confirmed he was aware he would be required to register as a sex offender with the appropriate law enforcement agencies and understood he would be sentenced to community supervision for life.

Prior to sentencing, defendant was evaluated at the Adult Diagnostic and Treatment Center (ADTC), and it was determined he qualified as a repetitive and compulsive sex offender under N.J.S.A. 2C:47-3.   The ADTC evaluation contained the following findings and recommendations:

Based on the results of this evaluation, clinical impression is of a psychotic, thought disordered, alcohol impaired man, who is diagnostically challenging under the current circumstances.   The challenge stems from deciphering whether Mr. Gembarski's pattern of sexually offending behavior was driven by his schizophrenia or sexual compulsivity, as defined statutorily.   Mr. Gembarski reported that he would rather come here and, “get treatment and not go to regular treatment in prison.”   He reiterated a willingness to participate in sex offender specific psychotherapy while at the ADTC. Mr. Gembarski would more likely than not benefit from such treatment.

Regarding, the repetitive element of the New Jersey Sex Offender Act, Mr. Gembarski openly and readily admits to sexually offending against both victims repeatedly.   During his interview, Mr. Gembarski reported feeling both hedonistically satisfied as well as guilt ridden and conflicted after offending against victim AV. He also reported taking evasive measures to avoid being alone with his victims to prevent him from sexually molesting them.   Invariably, these efforts failed[.]  Mr. Gembarski reported sexually molesting his victims regardless of his medication compliance.   Similarly, he molested his victim during periods of experiencing active schizophrenia symptoms as well as during periods absent of such active symptoms.   For statutory purposes, such a pattern of sexually offending behavior can be characterized as repetitive and compulsive.   Therefore it is recommended that the court sentence Mr. Gembarski under the purview of the New Jersey Sex Offender Act.

When defendant was interviewed by a probation officer in connection with his presentence report, he confirmed that most of the information set forth in the police reports was accurate.   He also stated:  “I did what I did, so I pled․  I didn't force it.   It was consensual․  New Jersey has crazy laws.”

Defendant was fifty-one years old when he was sentenced on April 6, 2006.   The court found three aggravating factors:  the gravity and seriousness of harm inflicted on the victims, N.J.S.A. 2C:44-1(a)(2);  the risk defendant would commit a future offense based on the ADTC evaluation, N.J.S.A. 2C:44-1(a)(3);  and the need for deterrence, N.J.S.A. 2C:44-1(a)(9).   The court also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), because defendant did not have a prior criminal history.

Defendant was sentenced in accordance with the plea agreement.   On count one, he received a fifteen-year prison term, subject to NERA, and on count four, defendant was sentenced to a concurrent seven-year term with no parole ineligibility period.   The court also determined that defendant could complete his sentence at the ADTC, and he was ordered to:  (1) register as a sex offender, N.J.S.A. 2C:7-2;  and (2) be subject to community supervision for life, N.J.S.A. 2C:43-6.4.

Defendant did not file a direct appeal.   However, in a PCR petition, he alleged that his sentence was illegal and that his trial counsel rendered ineffective assistance.   Following oral argument on July 8, 2009, the PCR court denied defendant's petition.   In an oral decision, the court concluded that all of the terms of defendant's sentence were “proper under the law,” and that defendant had failed to establish “a prima facie claim of ineffectiveness under the Strickland /Fritz ¹ standard.”

On appeal, defendant presents the following arguments:

POINT I

IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF.

POINT II

THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

ALL POINTS RAISED BY DEFENDANT-APPELLANT IN ANY AND ALL PRIOR AND SUBSEQUENT SUBMISSIONS TO THE COURT ARE INCORPORATED BY REFERENCE INTO THIS BRIEF.

We conclude from our review of the record that defendant's arguments are clearly without merit.   R. 2:11-3(e)(2).   The PCR court carefully considered each of defendant's claims;  the court's findings are supported by sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 472 (1999);  and the court correctly applied well-settled legal principles.   We therefore affirm substantially for the reasons stated by Judge James Den Uyl in his oral decision on July 8, 2009.

Affirmed.

FOOTNOTES

FN1. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 58 (1987)..  FN1. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 58 (1987).

PER CURIAM