OAG motion to reconsider dismissal of 1 of two charges in sex abuse case denied

Superior Court Associate Judge Joseph N. Camacho turned down yesterday the Office of the Attorney General appeal for him to reconsider his dismissal of one of two charges filed against a 35-year-old man accused of sexually abusing a 15-year-old girl.

“Although reconsideration may be granted in cases involving clear error of law, reconsideration is not a vehicle for parties to repeatedly attempt to re-argue an issue that they failed to address or addressed incompletely, simply because they disagree with the ruling,” said Camacho in his order in the case against Jeffry Manarang Fernandez.

Camacho said the motion to reconsider was much longer than the original opposition, and was filed by a different lawyer.

In essence, the judge pointed out, the government is using reconsideration as an attempt to re-argue the exact same issue with the exact same case law with a different attorney.

Camacho said the government’s argument for why the court’s May 23, 2018, order was erroneous were all arguments that either the Commonwealth failed to address in the earlier motion to dismiss, or that the government had already unsuccessfully argued.

Camacho noted that the Commonwealth’s briefs and arguments on this issue were significantly more on point and more complete than they were in response to the initial motion to dismiss.

“[However], a motion to reconsider is not meant to give parties a second bite at the apple, nor is it meant to replace the appellate process,” the judge said, citing precedent.

In his May 23 order, Camacho determined that the OAG has overcharged Fernandez.

Camacho said all of the elements of sexual assault in the first degree—that Fernandez engaged in sexual penetration with the alleged victim without her consent—are all present in sexual abuse of a minor in the first degree, with the lack of consent in sexual assault matching up with the age requirement in sexual abuse of a minor.

“Thus, charging both sexual assault in the first degree and sexual abuse of a minor in the first degree would expose the defendant to multiple punishments for the same offense,” said Camacho in an order that granted Fernandez’s motion to dismiss the charge of sexual assault in the first degree.

The judge noted that the alleged offenses both arise out of the same alleged act or transaction.

He said allowing multiplicitous charges gives the impression that Fernandez allegedly committed multiple offenses or that the defendant allegedly committed the same offense more than once.

“Without more information, the court declines to deviate from its previous approach of dismissing multiplicitous counts,” Camacho said.

Assistant public defender Heather M. Zona is counsel for Fernandez. At the hearing on the motion to reconsider last Friday, assistant attorneys general Teri Tenorio and Jonathan Wilberscheid appeared for the government. Wilberscheid argued the motion.