By Lillian Shupe
NJ.com
November 3, 2010
http://www.nj.com/hunterdon-county-democrat/index.ssf/2010/11/appellate_court_reverses_convi.html
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| John Banko |
A former Catholic priest who was convicted of sexually assaulting young boys at St. Edward's Catholic Church in Milford successfully appealed his conviction on one lesser count but it won’t change the sentence he is serving on another. The appellate court decision was released today.
After a trial in May, 2008 a jury of eight men and four women found John Banko guilty of aggravated sexual assault, first degree and endangering the welfare of a child, second degree. The victim testified that he was assaulted several times in the church bathroom at ages 9 and 10. He said he was threatened by Banko to tell no one. The abuse stopped when the family moved out of state in 1995, according to court documents.
In 2005 the victim finally reported the abuse to his mother, after suffering depression for years. His mother asked authorities if Banko was still at the church and found out that he had been convicted in 2002 of abusing another boy.
Now 64, Banko appealed his second conviction arguing that the jury was improperly told not to automatically disbelieve the victim since he kept the abuse secret for so long. His silence was attributed to “Child Sexual Abuse Accommodation Syndrome" according to an expert witness that testified for the prosecution. The appellate judges found that the trial judge properly instructed the jury that they could believe all, part or none of the victim’s testimony. They upheld the first degree charge on that basis.
Banko also challenged the child endangerment charge based on the fact that he did not have an ongoing supervisory role or other legal duty to care for the child. The appellate judges agreed that the prosecution did not establish that Banko had such a legal duty to care for the boy and reversed the conviction on that charge.
The reversal of the conviction on the endangering charge will not affect the sentence on count one. Banko argued that the term was excessive based on his age.
In September, 2008, Judge Roger Mahon sentenced Banko to 18 years on the first-degree sexual assault charge with a minimum of seven years to be served before being eligible for parole plus eight years on the endangering charge. Those sentences were to run concurrent to each other but consecutive to the 15-year sentence imposed in 2005 on the first conviction. That means Banko could serve a total of 33 years.
The appellate judges found that the trial judge properly considered Banko’s past behavior and record when imposing the 18-year term. Even after the second guilty verdict was returned, Banko still professed he did nothing wrong. He was also evaluated at the Adult Diagnostic Center in Avenel and determined to be a "repetitive and compulsive sexual offender" and lacked motivation for treatment.
"Based on our review of the record, we discern no reason to disturb defendant's sentence on count one. The judge's findings of aggravating and mitigating factors are amply supported by the record, and the sentence does not shock the judicial conscience,” the judges wrote.
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