On appeal from the Superior Court, Law Division, Monmouth County.
Morton I. Greenberg, R. S. Cohen and Gruccio. The opinion of the court was delivered by: Gruccio, J.A.D.
Following a jury trial, defendant Edward C. Mosch was convicted of third degree sexual contact, N.J.S.A. 2C:14-3a (count one); third degree burglary, N.J.S.A. 2C:18-2 (count two), and third degree terroristic threats, N.J.S.A. 2C:12-3b (count three). He was sentenced to a five-year term on count one; a consecutive five-year term on count two, and a five-year term on count three to run concurrently with the sentence for count two. A seven-and-one-half-year period of parole ineligibility was imposed, as well as a $75 Violent Crimes Compensation Board penalty.
On appeal defendant contends that:
1. The court's failure to charge the jury with respect to the issue of identification requires reversal of the conviction of defendant in the interests of justice.
2. The sentence imposed upon defendant was improper and must be modified by the reviewing court. (A) The sentence imposed was illegal with respect to the term of parole ineligibility in that the trial court failed to recite those aggravating and mitigating factors which caused the sentence to be imposed. (B) The trial court failed to separately state its reasons for imposing consecutive sentences in its decision.
3. A. Defense counsel's failure to call or subpoena alibi witnesses on behalf of appellant constituted ineffective assistance of counsel.
B. Counsel was not provided sufficient time to properly prepare his defense.
4. The out-of-court identification of defendant-appellant was so suggestive as to amount to a denial of due process.
According to State's evidence, in the early morning hours of July 9, 1984, defendant burglarized D.D.'s apartment by cutting a window screen. After taking $50 from her purse, which was on her desk, defendant ransacked D.D.'s dresser drawers in search of pantyhose with which he would make a head mask. Defendant then proceeded to D.D.'s bedroom and, at approximately 4:00 a.m., she was awakened by defendant touching her genital area. Startled, she sat upright and defendant, who was wearing the pantyhose taken from her dresser as a head mask, said, "If you scream, I'm going to kill you." When D.D. did begin to scream, defendant ran out of her apartment.
We have considered the contentions raised in light of the record and the controlling legal principles and conclude that all issues raised, with the exception of point two, are clearly without merit. R. 2:11-3(e)(2). Under the second point heading, defendant contends that his sentence was improper since the court did not recite in the record the aggravating and mitigating factors it considered when imposing the sentence, and further that the court failed to state its reasons for imposing a consecutive sentence.
The standards for appellate review of sentencing decisions under the Code of Criminal Justice are set forth in State v. Roth, 95 N.J. 334 (1984) and State v. Hodge, 95 N.J. 369 (1984). The ...