State in the Interest of B.P.C., A-4322-08T4; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication July 18, 2011. Before Judges Fuentes, Ashrafi and Nugent. On appeal from the Chancery Division, Family Part, Somerset County, FJ-18-597-09 and FJ-18-598-09. [Sat below: Judge Dilts.] DDS No. 14-2-2945 [41 pp.]

In these consolidated appeals, two 14-year-old boys were adjudicated delinquent based on an offense that, if committed by an adult, would have constituted fourth-degree criminal sexual contact under N.J.S.A. 2C:14-3. Because the victims were less than 13 years old, the Family Part directed the juveniles to register as sex offenders for the remainder of their lives as mandated by N.J.S.A. 2C:7-2b(2) (Megan’s Law) and In re Registrant J.G.

The facts presented by the state established the two juveniles, “James” and “Daniel,” physically held down and placed their bare buttocks on the faces of the two victims, resulting in physical contact between their bare buttocks and the victims’ faces. The trial court found the juveniles committed these acts for the purpose of degrading or humiliating the younger boys.

The principal question on appeal is whether the conduct of these two juveniles constitutes “sexual contact” as defined in N.J.S.A. 2C:14-1d, or merely youthful “horseplay” that, although patently offensive, is nevertheless devoid of the sexual connotation underpinning the offense of criminal sexual contact under N.J.S.A. 2C:14-3. Because an adjudication of delinquency based on criminal sexual contact triggers the registration requirements under N.J.S.A. 2C:7­2b(2), this decision may have profound, lifelong ramifications for these two boys as well as others similarly situated.

Held: The conduct of defendants supports an adjudication of delinquency based on criminal sexual contact. The Family Part erred, however, when it denied a post-conviction relief petition filed by the juvenile who stood for trial. The adjudication of delinquency of the juvenile who pleaded guilty is also remanded because he was not fully informed of the registration requirements under N.J.S.A. 2C:7-2b(2) at the plea hearing.

The appellate panel finds the conduct engaged in by these two juveniles is sufficient to sustain an adjudication of delinquency predicated on criminal sexual contact. James and Daniel used their bare buttocks, which the panel finds by implication must have also exposed their constituent anatomical parts, as key components of the message they sent to the victims. Although James and Daniel may not have done this for their own sexual gratification, the panel finds the record showed that the victims were humiliated and degraded by what the panel considers to be a message of sexual prowess and domination. The panel finds that what occurred here were deliberate acts of extreme bullying, carried out by James and Daniel with what the panel finds to be a clear intent to degrade and humiliate the two younger and physically weaker victims, using what the panel finds to be unmistakably sexual connotations to accentuate the message. The panel finds that labeling these outrageous acts mere “horseplay” runs counter to the clear language defining the offense of criminal sexual contact.

The panel finds the Family Part erred, however, when it denied James’s post-conviction relief (PCR) petition. The affidavit submitted by James’s trial attorney in support of this PCR petition made out a prima facie case of ineffective assistance of trial counsel. The panel thus remands for the court to conduct an evidentiary hearing to resolve the factual and legal issues raised by trial counsel’s inadequate performance. James’s adjudication of delinquency based on fourth-degree criminal sexual contact is held in abeyance pending the outcome of the evidentiary hearing. At this hearing, the trial court will determine whether, but for James’s trial attorney’s failure to challenge the admissibility of the testimony of the two complaining witnesses, there is “a reasonable probability” the result of the proceeding would have been different. If the court finds in favor of the state, the adjudication of delinquency is otherwise affirmed. If the court finds for the juvenile, the court must vacate the adjudication of delinquency and schedule the matter for a new trial or other proceedings as may be warranted.

The appellate panel also remands Daniel’s adjudication of delinquency for a hearing because he was not fully informed of the registration requirements under Megan’s Law before he pleaded guilty to an act of delinquency predicated on fourth-degree criminal sexual contact. The court must also determine whether the registration requirements materially affected Daniel’s decision to plead guilty. If, on remand, the court determines that the plea must be vacated, Daniel will have three options: (1) renegotiate the plea agreement, if the state is willing to do so; (2) withdraw his guilty plea and proceed to trial; or (3) withdraw the motion to vacate the plea and accept the original sentence.

— By Debra McLoughlin

For appellant in A-4322-08 — David W. Fassett (Arseneault Whipple Fassett & Azzarello). For appellant in A-5855-08 — Robert G. Wilson (Kovacs & Wilson). For respondent — Daryl A. Williams, Assistant Prosecutor (Geoffrey D. Soriano, Somerset County Prosecutor).