On certification to the Superior Court, Appellate Division, whose opinion is reported at 198 N.J. Super. 120 (1984).
For affirmance and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.
The critical question raised on this appeal is whether the State or the defendant must bear the burden of proof on the factor that distinguishes first- from second-degree kidnapping. That factor is whether the alleged kidnapper released the victim unharmed and in a safe place prior to apprehension. N.J.S.A. 2C:13-1c. The issue was raised for the first time at the sentencing hearing of defendant, Patrick J. Federico, Jr., but was rejected by the trial court. The Appellate Division found that the jury should have decided the degree of kidnapping and that the State bears the burden of persuasion that the victim was not released safe and unharmed. 198 N.J. Super. 120 (1984). As a result, the Appellate Division reversed the judgment of conviction against Federico and remanded the entire matter for a new trial. We granted the State's petition for certification, 102 N.J. 333 (1985), and now affirm the Appellate Division's judgment.
On a Saturday night in February 1983, Robert Hogan and defendant, Federico, approached Janique Brown, an admitted prostitute, who agreed to accompany the two men to Federico's residence for the purpose of performing sexual acts in exchange for the payment of money. As is set forth in greater detail in the Appellate Division's opinion, defendant committed various acts that terrorized Brown, such as placing a sawed-off shotgun to her head, swinging a hatchet overhead, and running a knife across her body, albeit without cutting her. 198 N.J. Super. 123-24. Eventually, Federico left Hogan and Brown and went upstairs to retire. Some hours later, Hogan told Brown how to turn the doorknob to circumvent the supposedly-electrified outside door. When Hogan also left the room, Brown fled. As she ran from the house, Brown encountered a patrol car and told the police how she had been confined and threatened.
Federico was indicted by the Grand Jury for kidnapping, criminal coercion (which was later dismissed on the State's
motion), aggravated assault, terroristic threats, possession of a prohibited weapon, and possession of a weapon for an unlawful purpose. The kidnapping count did not state that the defendant had not released the victim unharmed and in a safe place prior to apprehension.
In its jury instruction on the kidnapping count, the court explained that the State must prove beyond a reasonable doubt that the defendant confined the victim for a substantial period and that the confinement was for the purpose of terrorizing or inflicting bodily harm on her. The court did not, nor was it requested to, instruct the jury on the factor that distinguishes first- and second-degree kidnapping. The distinction is embodied in N.J.S.A. 2C:13-1c, which states "[k]idnapping is a crime of the first degree * * *. If the actor releases the victim unharmed and in a safe place prior to apprehension, it is a crime of the second degree" (the unharmed release provision). The jury returned a verdict of guilty on all counts.
At the sentencing hearing, defense counsel raised for the first time the issue whether Federico's offense was properly considered first- or second-degree kidnapping. Ruling that defendant had not released Brown but that she had escaped, the court applied the penalties for first-degree kidnapping. After merging all the counts, except the shotgun-possession charge, the court sentenced Federico to twenty years, with eight years of parole ineligibility on the kidnapping count. Federico was also sentenced to a consecutive term of four years with one year of parole ineligibility on the remaining weapons charge.
The Appellate Division found that there was evidence from which the jury might have concluded that Brown was unharmed and that Federico had abandoned any attempt to continue to confine her. 198 N.J. Super. at 126. The court then held that "defendant was entitled to have the jury consider whether the crime was one of first or second degree," id. at 127, and that the State bears the burden of persuasion on a charge of first-degree kidnapping to convince the jury that the victim was
not released unharmed and in a safe place prior to apprehension. Id. at 128. Consequently, the Appellate Division reversed and ...