On appeal from the Superior Court, Law Division, Union County.
McElroy, Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
[198 NJSuper Page 122] Defendant was indicted on the following counts: (1) kidnapping (first degree), N.J.S.A. 2C:13-1b(2); (2) criminal coercion (third degree), N.J.S.A. 2C:13-5a(1); (3) aggravated assault (fourth degree), N.J.S.A. 2C:12-1b(4); (4) terroristic threats (third degree), N.J.S.A. 2C:12-3a and b; (5) possession of a prohibited weapon (shotgun) (third degree), N.J.S.A. 2C:39-3b; (6) possession of a weapon (shotgun) for an unlawful purpose (second degree), N.J.S.A. 2C:39-4a; (7) possession of a weapon (knife and/or hatchet) for an unlawful purpose (third degree), N.J.S.A. 2C:39-4d.
Janique Brown, a prostitute, alleged that on February 12, 1983 at approximately 9 p.m. she was on a corner in Newark when she was approached by two men in a van. Defendant was a passenger and Robert Hogan the driver. She told them the charge and the men agreed to pay. She entered the van and after making two stops for cigarettes and liquor, they ended up in Hillside at defendant's house.
Brown entered the house and went into the ground floor living room with Hogan. She claimed defendant walked into the room with a sawed-off shotgun, pointed it at her head and said "he wanted to see some action," whereupon she performed oral sex on Hogan.
Defendant left the room but reappeared with a knife and hatchet. He swung the hatchet and the blade portion flew off and hit the wall. He then took the knife, ran it across Brown's thighs and vagina, and said "I should cut it out."
According to Brown, several times throughout the night defendant picked up the shotgun and threatened her. He also threatened to cut up and eat her daughter, to "blow them all up" with what he claimed was a Claymore bomb, and to cut Brown with a knife and burn her with a kerosene lamp. Unconnected handcuffs were placed on Brown's wrists and defendant allegedly forced her to perform oral sex on him.
Defendant later went into the kitchen, prepared himself some food and went upstairs. She claimed defendant had told her that the door was electrified and she was afraid to leave. Hogan then told Brown that she could circumvent the electrified door by turning the knob in the opposite direction. Hogan later also went upstairs and Brown gathered her clothing, unlocked the several door locks and left. She flagged down a passing police car and told the officer that she had been kidnapped.
Brown's record of criminal convictions was presented to the jury revealing convictions for manslaughter, robbery, and possession
of heroin and cocaine. Brown admitted she was a prostitute, a heroin addict and that she used cocaine.
Defendant's defense was a general denial of any criminal activity. He testified that he lived in the upstairs apartment of the two-family house and that Hogan was living in the downstairs apartment at the time of the incident. He related that he accompanied Hogan to Newark so Hogan could pick up a prostitute and when they returned to the house he went upstairs and watched television with his girlfriend for the rest of the evening. At one point, he went downstairs to heat a bowl of chili because the gas in his kitchen was off. While he waited for the chili to heat he observed Hogan and Brown in the downstairs living room engaging in sexual acts. Later he returned downstairs and he saw Hogan and the woman handling a shotgun. He returned downstairs for the third and final time when he heard Hogan yelling. He said he found Hogan in the hall with no pants on, holding his wallet, yelling that Brown had just ripped him off for $100.
At the commencement of trial, the State's motion to dismiss the second count charging criminal coercion was granted with defendant's consent. A jury found defendant guilty of all of the remaining counts. The sentencing judge merged the third, fourth, sixth and seventh counts into the kidnapping count and sentenced defendant to a term of 20 years with eight years of parole ineligibility on the kidnapping count. Defendant received a consecutive term of four years with a one year period of parole ineligibility on the fifth count charging possession of a prohibited weapon.
Defendant appeals alleging:
I -- The crime of first degree kidnapping was neither properly charged in the indictment nor in instructions to the jury; the jury was thus deprived of its fact finding functions on four essential elements.
II -- Defendant was denied his right to effective assistance of counsel guaranteed by the New Jersey Constitution because of his attorney's conflict of interest.
III -- The court erred in admitting into evidence a statement made by defendant in violation of his Fifth Amendment rights.
IV -- The court erred in permitting improper hearsay evidence to prove Hogan had another address and was not staying at Federico's house.
V -- The trial court erred by refusing to permit defense counsel to fully attack the victim's credibility.
VI -- The trial court committed reversible error by admitting impermissible hearsay under the guise of the ...