                             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                        NOT FOR PUBLICATION WITHOUT THE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-1029-15T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

TIMOTHY C. AMAN,

     Defendant-Appellant.
_______________________________

              Argued March 2, 2017 – Decided May 23, 2017

              Before Judges Lihotz and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Cape May County, Indictment Nos.
              13-11-1049 and 14-07-0548.

              Alan L. Zegas argued the cause for appellant
              (Law Offices Alan L. Zegas, attorneys; Mr.
              Zegas and Cissy M. Rebich, on the briefs).

              Gretchen A. Pickering, Assistant Prosecutor,
              argued the cause for respondent (Robert L.
              Taylor, Cape May County Prosecutor, attorney;
              Ms. Pickering, of counsel and on the brief).

PER CURIAM

        Defendant Timothy C. Aman appeals from his conviction, for

first-degree aggravated sexual assault and the imposed sentence
of ten years in prison, subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2.          Immediately before trial, defendant entered

a guilty plea, pursuant to the terms of a negotiated agreement.

Although defendant admitted he performed fellatio on K.C., who was

not conscious, he now challenges the sufficiency of the factual

basis to support the knowledge element of the crime.                      We affirm.

                                             I.

     These       facts,    taken      from   the   record    on   appeal,     are     not

disputed.       Defendant, K.C., and seven others, traveled to Wildwood

to attend "senior week" on June 9, 2013. Defendant and K.C. passed

out after drinking alcohol and smoking marijuana.                    Defendant awoke

and performed fellatio upon K.C., while recording the acts on his

cell phone.       Despite the contact, K.C. did not awaken and did not

become    aware    of     the   event    until     K.C.    watched      the   video    on

defendant's phone, a few weeks later.

     In    a    superseding      indictment,       defendant      was   charged     with

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7),

two counts of third-degree aggravated criminal sexual contact,

N.J.S.A.       2C:14-3(a),      and   two    counts   of    third-degree      criminal

invasion of privacy, N.J.S.A. 2C:14-9(b).

     Defendant filed pre-trial motions.                    Apparent from the plea

record, defendant moved to bar the State's presentation of the

cell phone video, under N.J.R.E. 403, which the judge denied,

                                             2                                  A-1029-15T3
finding the probative value of the evidence was not substantially

outweighed by any prejudice.1

     On the eve of trial, defendant entered his guilty plea to

first-degree aggravated sexual assault.        The plea was subject to

the registration and notification requirements of Megan's Law,

N.J.S.A. 2C:7-1 to -23, parole supervision for life (PSL), N.J.S.A.

2C:43-6.4, a restraining order under Nicole's Law, N.J.S.A. 2C:14-

12, and required a psychological evaluation at Avenel.       Otherwise,

the plea agreement did not include a sentencing recommendation,

but stated defendant would request to be sentenced one degree

lower than the charged offense, and the State intended to press

for a first-degree sentence.

     During the plea hearing, defendant responded to the judge's

preliminary questions stating he was age twenty, a high school

graduate, and was not subject to a disability, impairment or under

the influence of medication, drugs or alcohol. Defendant confirmed

he understood the crime charged and that he was pleading guilty.

Defendant   agreed   he   received   all   discovery   representing   the

evidence the State planned to present at trial. Further, defendant

stated he executed the plea agreement and supplemental forms after



1
     The judge recited this prior finding during the plea hearing.
The transcript from this and defendant's Miranda challenge is not
included in the record.

                                     3                           A-1029-15T3
he had sufficient time to confer with counsel, review each page,

and discuss his questions.      Next, the judge detailed all mandatory

registrations, notifications, evaluations, possible psychological

treatment   and   requirements    of       PSL   and   NERA,   along   with    all

attendant parole provisions, penalties and assessments attached

to a conviction for aggravated sexual assault.                 Defendant stated

he understood each of these requirements.

     The judge reviewed the maximum sentence for the charged

crimes, as well as defendant's rights to proceed to trial by jury,

call and cross-examine witnesses, and present evidence.                Defendant

waived these rights knowingly and voluntarily, without coercion

or influence by undisclosed promises.             Defendant acknowledged he

understood all ramifications of his decision to plead guilty to

first-degree aggravated sexual assault.                He then admitted his

guilt.

     Defendant    then   was   asked   questions        by   his   attorney,    to

establish the factual basis for the offense charged:

                 [DEFENSE COUNSEL]: [O]n June 9th of 2013
            were you in the City of Wildwood . . . ?

                  THE DEFENDANT: Yes.

                 [Q]: At that date and time, did you come
            into contact with one K.C.?

                  [A]: Yes.



                                       4                                 A-1029-15T3
                  [Q]: And, you know who K.C. is just based
             [on] his initials, correct?

                  [A]: Yes.

                  [Q]: And, that date and time and in that
             place, did you perform an act of fellatio on
             him while he was physically helpless and
             otherwise incapacitated?

                  [A]: Yes.

                  THE COURT:       So    therefore         without    his
             knowledge?

                  [A]: Yes.

      The    judge     concluded    defendant          freely,    knowingly,       and

voluntarily entered an informed guilty plea to the charge of first-

degree aggravated sexual assault.               He released defendant pending

sentencing.

      The sentencing hearing included testimony from defendant's

clinical psychologist, who discussed his evaluation of defendant.

Parties were available to speak on behalf of defendant and the

victim.     Defendant also proposed to present an expert to opine on

the   life-threatening     effect       of    prison    on    defendant,     who   was

struggling with his sexuality.                Numerous people wrote character

letters supporting defendant.                Other documents reviewed by the

judge included the pre-sentence report, the Avenel interview and

sex   offender   evaluation,       and       K.C.'s    written    victim's     impact

statement,     which    expressed       his    view    a     prison   sentence     was


                                         5                                    A-1029-15T3
necessary, noting he was victimized by defendant "on more than one

occasion and in more than one state."2

     Applying and weighing aggravating and mitigating factors,

N.J.S.A. 2C:44-1(a), (b), the judge sentenced defendant to ten

years, the "lowest end of the first-degree [range and the] high

end of the second-degree [range.]"

     Defendant did not move to vacate his plea.   At no time, after

entering his plea, has he asserted his innocence.

     Defendant filed this appeal, arguing:

          POINT I

          DEFENDANT DID NOT PROVIDE AN ADEQUATE BASIS
          FOR A GUILTY PLEA AND THEREFORE HIS PLEA AND
          RESULTING CONVICTION MUST BE VACATED.

          POINT II

          THE TRIAL COURT ERRED IN DENYING DEFENDANT
          [AN] OPPORTUNITY TO PRESENT MITIGATING FACTORS
          AND FAILING TO PROPERLY APPLY THE AGGRAVATING
          AND MITIGATING FACTORS DURING SENTENCING,
          WHICH RESULTED IN AN EXCESSIVE SENTENCE, WHICH
          MUST BE VACATED.

                               II.

     Acceptance or rejection of a defendant's guilty plea rests

within the discretion of the trial court.    A judge may not accept

a guilty plea unless the defendant's testimony supports the basis


2
     The record contains numerous references to a separate
prosecution in Pennsylvania charging defendant with involuntary
deviant sexual intercourse involving the same victim.

                                6                           A-1029-15T3
for conviction.       See R. 3:9-2 ("[A judge] shall not accept such

plea without first questioning the defendant personally, under

oath . . . and determining by inquiry of the defendant . . . there

is a factual basis for the plea . . . . ").

            Indeed, "it is essential to elicit from the
            defendant a comprehensive factual basis,
            addressing each element of a given offense in
            substantial detail." State v. Campfield, 213
            N.J. 218, 236 (2013).    The "court must be
            'satisfied from the lips of the defendant,'"
            State v. Smullen, 118 N.J. 408, 415 (1990)
            (quoting State v. Barboza, 115 N.J. 415, 422
            (1989)), that he committed every element of
            the crime charged, State v. Sainz, 107 N.J.
            283, 293 (1987).

            [State v. Urbina, 221 N.J. 509, 526 (2015).]

     In    Urbina,    the   Supreme   Court   detailed   the   purposes    of

recording    the     defendant's   factual    basis,   which   assures    the

defendant fully understands the nature of the charges and makes

certain the defendant's conduct meets each element of the charged

offenses.    Id. at 526-27.

     The Court emphasized the formality of the plea process to

meet these goals and to mitigate the possibility a defendant "may

enter a plea of guilty to a crime he did not commit to insulate

himself from a potentially greater sentence if found guilty by a

jury."     Id. at 527 (quoting State v. Taccetta, 200 N.J. 183, 198

(2009)).    "Though we recognize that sometimes an accused, unknown

to the trial judge, will perjure himself to put through a plea

                                      7                             A-1029-15T3
agreement,    a   court   cannot give   official   license   to    such    a

practice." Ibid. (quoting Taccetta, supra, 200 N.J. at 198). "Our

longstanding commitment to this approach, above all, is intended

to preserve the integrity of the criminal justice process and to

safeguard    against   convicting   a   potentially   innocent    person."

State v. Tate, 220 N.J. 393, 397 (2015).

     Accordingly, in engaging the necessary scrutiny, neither the

State nor the trial judge should hesitate to require details of

the defendant's conduct in committing an offense.        Often times the

limiting examination to leading questions allows a defendant,

after a change of heart, to challenge exactly what was said or not

said.   Requiring a more precise statement from the lips of a

defendant assures the court and the public that a given defendant

admits he or she committed the charged offense.

     We start our review of this matter by reciting the elements

of the crime for which defendant was convicted. "Aggravated sexual

assault is a crime of the first degree."       N.J.S.A. 2C:14-2.

            An actor is guilty of aggravated sexual
            assault if he commits an act of sexual
            penetration with another person under any one
            of the following circumstances:

                  . . . .

            (7) The victim is one whom the actor knew or
            should have known was physically helpless or
            incapacitated . . . or had a . . . defect
            which rendered the victim temporarily or

                                    8                              A-1029-15T3
           permanently incapable of understanding the
           nature of his conduct, including, but not
           limited to, being incapable of providing
           consent.

           [N.J.S.A. 2C:14-2(a).]

     Important to the elements of the offense is the meaning of

sexual penetration, which includes "fellatio . . . between persons

. . . ."   N.J.S.A. 2C:14-1(c).

           The word "fellatio" is not defined by N.J.S.A.
           2C:14-1(c). Webster's Third New International
           Dictionary,   836   (3d   ed.  1981)   defines
           "fellatio" as "the practice of obtaining
           sexual satisfaction by oral stimulation of the
           penis."   Thus,   by    definition,   fellatio
           constitutes a form of "sexual penetration"
           under the statute notwithstanding the fact
           that the victim's penis does not enter the
           actor's mouth. Placement of the actor's mouth
           on the victim's penis is sufficient to prove
           a violation of N.J.S.A. 2C:14-1(a).

           [State in re S.M., 284 N.J. Super. 611, 617
           (App. Div. 1995).]

     On appeal, defendant focuses his challenge to the alleged

absence of proof of the state of mind, urging

           the only reference made during defendant's
           [plea hearing] to a "knowing" state of mind
           is that defendant knew who the person was that
           was being referred to a "K.C."        Although
           defendant, who was intoxicated and smoking pot
           on the date of the incident, acknowledged
           performing an act of fellatio upon K.C.,
           defendant was not asked whether, at the time
           of the act he "knowingly" committed it.
           Similarly, though defendant stated in court
           that K.C. was "physically helpless and
           otherwise incapacitated" when the fellatio

                                  9                         A-1029-15T3
              occurred, he was not asked whether at the time
              of the act he knew of K.C.'s incapacitated
              condition or was of sufficient competence that
              he should have known of K.C.'s incapacity.

We are not persuaded.

         Importantly, a defendant's lack of knowledge that his conduct

is   a    criminal   offense   is   not    relevant.   N.J.S.A.   2C:2-2(d)

provides, in pertinent part:

              Neither   knowledge   nor  recklessness   nor
              negligence as to whether conduct constitutes
              an offense or as to the existence, meaning or
              application of the law determining the
              elements of an offense is an element of such
              offense, unless the definition of the offense
              or the code so provides.

See also State v. Rowland, 396 N.J. Super. 126, 128 (App. Div.

2007) ("With certain exceptions that are not relevant here, our

criminal code makes ignorance of the law irrelevant."), certif.

denied, 193 N.J. 587 (2008).

         Moreover, a "defendant's admissions 'should be examined in

light of all surrounding circumstances and in the context of an

entire plea colloquy.'" Campfield, supra, 213 N.J. at 232 (quoting

State ex rel. T.M., 166 N.J. 319, 327 (2001)).               "[D]ifferent

criminal charges and different defendants require courts to act

flexibly to achieve constitutional ends."              Id. at 231 (2013)

(quoting T.M., supra, 166 N.J. at 327). Accordingly, the knowledge




                                      10                            A-1029-15T3
element can be gleaned from direct as well as circumstantial

evidence.

     Essentially, defendant's argument suggests his plea colloquy

did not include proof he was aware he was committing an act of

sexual penetration and that K.C. was incapacitated.           We disagree.

     Defendant's plea contains his admission he fellated K.C.

"while"     the    victim   was   "physically    helpless   and    otherwise

incapacitated."       These admissions prove defendant not only knew

he was engaging in fellatio, but also that he knew K.C. was

incapacitated during the sexual assault.              Defendant is hard-

pressed to prevail on an argument he did not know his manipulation

of K.C.'s genitalia, without K.C.'s consent, at a time K.C. was

unconscious, constituted a sexual assault.

     Further, defendant's arguments choose to ignore the video,

which he himself created of the event.          Although the video was not

played during the plea hearing, we will not ignore the plea was

sought as the parties were about to engage in jury selection, and

the video was significant evidence in the State's case.3             In the

video, defendant demonstrates the presence of mind and dexterity

to   record       himself   performing    the   sexual   assault    on    the

incapacitated victim.



3
     The video was admitted and played at sentencing.

                                     11                              A-1029-15T3
       Defendant also seeks to rely in part on his       post-event

"blackout" as demonstrating he had no knowledge of the events.      In

this regard, defendant suggests since he has no recollection of

his conduct, somehow the act was not completed with knowledge.

This too is rejected.

       Had the judge or counsel probed details depicted on the video

or admitted in defendant's custodial statement, a more thorough

expression of defendant's state of mind on the night of the sexual

assault would have been in the record.       We repeat the Supreme

Court's "caution" to judges and prosecutors stated in Campfield

to do just that so as to end all debate when eliciting from a

"defendant a comprehensive factual basis, addressing each element

of a given offense in substantial detail, when a defendant is

pleading guilty to that offense."     Campfield, supra, 213 N.J. at

236.    Nevertheless, we are satisfied defendant's admission he

"perform[ed] an act of fellatio on [K.C.] while he was physically

helpless and otherwise incapacitated" confirms defendant was aware

of the sexual act and the victim's condition when he assaulted

him.   Therefore, we conclude defendant's guilty plea was properly

accompanied by a sufficient factual basis, as required by Rule

3:9-2, which is sufficient to uphold his conviction.

       Defendant next challenges the application of aggravating

factor two as "double counting."      Further, defendant challenges

                                 12                          A-1029-15T3
procedures    during   sentencing      which   deprived    him    of    the

presentation of factual support for application of mitigating

factor eleven.   We provide the factual findings by the trial judge

on these issues.

     In   imposing   the   sentence,   the   judge   applied   aggravating

factor three, because defendant's psychological evaluation found

he was a moderate risk for reoffending, which the judge accorded

"slightly substantial weight."         Factor nine was also applied,

citing the need for general deterrence and the need to deter

defendant, to which the judge afforded "very substantial weight."

At issue here is the judge's application, by clear and convincing

evidence, of aggravating factor two.

     Generally, application of aggravating factor two focuses on

whether "the defendant knew or reasonably should have known that

the victim of the offense was particularly vulnerable or incapable

of resistance due to advanced age, ill-health, or extreme youth,

or was for any other reason substantially incapable of exercising

normal physical or mental power of resistance[.]"                State v.

Lawless, 214 N.J. 594, 599-600 (2013) (quoting N.J.S.A. 2C:44-

1(a)(2)).    Defendant argues an element of the crime charged is

the victim is incapacitated or physically helpless.              N.J.S.A.

2C:14-2(a)(7).   Thus, he asserts the judge violated the principle



                                  13                               A-1029-15T3
prohibiting double counting any element of an offense as an

aggravating factor. State v. Kromphold, 162 N.J. 345, 353 (2000).

     The     judge's     findings        state   factor    two     applies

"[s]pecifically because the victim was incapacitated and was

incapable    of    exercising   normal    physical   or   mental   .   .   .

resistance."      The judge elaborated adding:

            this fact . . . requires a               pragmatic
            assessment of the totality of            the harm
            inflicted on the victim.

                 The victim states to this [c]ourt, . . .
            that he has dealt with anger, shame, fear,
            embarrassment, self-doubt, and disassociation
            since the sexual assault.

                  The [c]ourt also takes into consideration
            . . . the position taken by the victim's mother
            in that regard as to the effect it has had
            with regard to the . . . family unit.

                 The [c]ourt does find that that is [sic]
            substantial weight.

     The judge recognized the law "compels 'a pragmatic assessment

of the totality of harm inflicted by the offender on the victim.'"

Lawless, supra, 214 N.J. at 610 (quoting Kromphold, supra, 162

N.J. at 358).     Further, the direct consequences of the crime upon

the victim may be considered.       See State v. Soto, 340 N.J. Super.

47, 72 (App. Div.), certif. denied, 170 N.J. 209 (2001).           However,

the findings erroneously considered and weighed inappropriate

facts in two respects.


                                    14                              A-1029-15T3
         First,    as    noted,    the      judge    expressly        mentions      the

vulnerability of the victim, because he was incapacitated.                         This

represents double counting, because the victim's incapacity is an

element      of   the    crime.    Second,     the   judge's     remarks    reflect

consideration of the impact upon the victim's family, which "is

irrelevant to the sentencing court's application of aggravating

factor two."        Lawless, supra, 214 N.J. at 601.             Because we have

no way of knowing which facts caused the court to accord the factor

"substantial weight," we must vacate defendant's sentence and

remand for resentencing.

         Defendant also asserts the judge failed to consider evidence

he sought to present in mitigation of sentence. More specifically,

defendant offered character statements from two cousins and a

close family friend, in addition to his mother and sixty letters.

Further, defendant proffered a "corrections expert" opinion to

explain the hardships defendant would face in jail, "given his

.    .   .   psychosexual     characteristics,"        which     he    urged     would

compromise his safety and life.

         On the latter issue, although the judge denied the request

to   present      this   expert,   he    accepted    the   State's      stipulation

"go[ing] to prison" would be a hardship for defendant, read and

considered        the   expert's   report     and   applied    mitigating       factor

eleven, giving it "slight weight."

                                         15                                    A-1029-15T3
       "[T]he Code requires an inexorable focus upon the offense

when formulating a sentence."               State v. Roth, 95 N.J. 334, 367

(1984).    The Code adoption was aimed at greater uniformity in

sentencing among defendants who commit the same crimes.                      Id. at

369.

       Here,    defendant's      conviction          carries   a   presumption      of

incarceration.        N.J.S.A. 2C:44-1(d).            Defendant's struggle with

his    sexual   orientation      is    not      an   exceptional    or    compelling

circumstance that would impact the term of imprisonment.

       Finally, whether to allow presentations from defendant's

family and friends rests within the trial judge's discretion.

Here, the judge permitted any party, who had not submitted a

letter, to speak on defendant's behalf.                  Because his cousins and

friend had provided written character submissions that the judge

reviewed, additional testimony restating the same facts was found

cumulative      and   deemed   unnecessary.            This    decision    does   not

represent an abuse of discretion.

       Accordingly, for the reasons stated, defendant's conviction

is affirmed.      However, we vacate defendant's sentence and remand

for    resentencing      based        on    our      discussion    regarding      the

applicability and weight of aggregating factor two.

       Affirmed in part, reversed and remanded in part.



                                           16                                A-1029-15T3
