On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Furman, Dreier and Shebell. The opinion of the court was delivered by Dreier, J.A.D.
Defendant has appealed from his convictions of second degree burglary, N.J.S.A. 2C:18-2; third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; third degree terroristic threats, N.J.S.A. 2C:12-2; and second degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2a(3). The trial judge merged the conviction for aggravated criminal sexual contact into the conviction for attempted aggravated sexual assault, and the conviction for terroristic threats into that for second degree burglary. He then sentenced defendant, a persistent offender, to an extended term of 20 years with a 10-year period of parole ineligibility for the attempted aggravated sexual assault, and for the burglary to a consecutive term of 10 years with a five-year period of parole ineligibility. Defendant's aggregate sentence, therefore, was to a term of 30 years with a 15-year period of parole ineligibility. A Violent Crimes Compensation Board penalty of $275 was also imposed.
Testimony revealed that at approximately 4:00 a.m. on November 6, 1983 defendant, after stacking cinderblocks under the window of the 14-year-old victim, opened her window and entered the bedroom in which she was sleeping alone. The victim awoke as he pulled the sheets from her. When the victim realized that defendant was not a family member playing a prank on her, she hit him in the face, causing his glasses to fall off. After retrieving his glasses he held the victim's mouth and neck onto the pillow and told her if she moved he would kill her. He then attempted to undress her but she managed to roll off the bed on the side opposite defendant and to call for her
parents. Although the defendant again attempted to approach the victim, he apparently heard the victim's mother call back that she was coming to the victim's aid, whereupon he ran back to the window and jumped out head first. The victim testified that someone had turned on a light in the apartment building across the alley and she was able to see defendant's face. After the police were called, they investigated the scene, took a description from the victim and discovered butts of Kool cigarettes both near the cinderblocks beneath the window and in the area where cinderblocks had been stored nearby.
The victim described her assailant as a dark-skinned male, possibly in his 30's, approximately 5' 10" tall, with black curly hair, wearing dark glasses, a black jacket, blue jeans and light blue sneakers. Although he spoke fluent English, she said he looked as if he may have been Hispanic.*fn1 She also detected an odor of alcohol on his breath and thought he might have been smoking. She did not initially recognize the person who had assaulted her. A few hours later, at 10:00 a.m., the victim viewed a lineup of nine color photographs of Hispanic males of similar age and physical appearance. She identified defendant's photograph without any doubt in her mind. As the girl was reviewing the written statement her brother spoke to her and himself recognized defendant's photo as that of a son of a friend of the victim's grandfather. The victim then also realized that she had seen the defendant before on a few occasions although she did not recall his name or anything else about him. She testified that although she had seen defendant in passing once or twice, she never spoke to him nor did she know where he lived. An arrest warrant was obtained and defendant was arrested shortly after 2:00 p.m. on the same day. Defendant resided in a building located directly behind the victim's house separated only by a yard, a collapsed fence, and the alleyway from which access was secured. Apparently, the victim's window
would have been visible from defendant's building and the alleyway, and the proximity of the structures was compatible with the State's theory that the motive for defendant's entry was a sexual attack on the girl.
When the police entered defendant's apartment they found him dressed only in jogging shorts. Defendant was informed of the warrant and given Miranda warnings. He then indicated that he wished to get dressed and requested that his wife bring him a pair of shoes. Initially, she returned with a pair of light blue sneakers, but after a brief conversation with defendant in Spanish brought him a pair of dress shoes to wear. Defendant was not then wearing his glasses and one of the detectives, who had known defendant casually for several years and had seen the photograph of defendant in which he was wearing glasses, inquired where his glasses were. Defendant responded that he did not wear glasses. He was then taken to police headquarters, processed, and again read his Miranda rights. At that time he smoked three Kool cigarettes. A chemist from the State Police Laboratory analyzed the butts from these cigarettes, the cigarette butts found outside the victim's home, and samples of defendant's blood and saliva.*fn2
Police obtained a search warrant for defendant's apartment and found a pair of prescription glasses with dark frames, a gray jacket, a pair of blue jeans and light blue sneakers, all similar to the description the victim gave of the clothing worn by her attacker.
Defendant has raised six points on this appeal:
The trial court erred by failing to charge the jury on third degree burglary ...