On appeal from Superior Court, Law Division, Passaic County.
Michels and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.
[224 NJSuper Page 366] A ten-count indictment returned by a Passaic County grand jury charged defendant with second degree burglary contrary to N.J.S.A. 2C:18-2 (count one), two counts of fourth degree theft contrary to N.J.S.A. 2C:20-3 (count two and three), first degree kidnapping contrary to N.J.S.A. 2C:13-1b(1) and/or (2) (count four), two counts of first degree robbery contrary to N.J.S.A. 2C:15-1 (counts five and six), first degree aggravated sexual assault contrary to N.J.S.A. 2C:14-2a(3) (count seven), two counts of third degree aggravated assault contrary to N.J.S.A. 2C:12-1b(5)(a) (counts eight and nine) and fourth degree resisting arrest contrary to N.J.S.A. 2C:29-2a (count ten).
Following a jury trial, defendant was convicted of all the charged offenses. He was sentenced to a prison term of ten years with a five-year parole disqualifier on count one, six months each on counts two and three, 30 years with a 15-year parole disqualifier on count four, 20 years with a ten-year parole disqualifier on each of counts five, six and seven and 18 months each on counts eight, nine and ten. The sentence on count one was to be served concurrently with the sentences imposed on counts four and seven. The sentences on count two was merged with that imposed on count five and the sentences imposed on counts three and six were also merged. The sentence on count four was consecutive to the sentence imposed on count seven. The sentence on count five was concurrent with that imposed on count four, but consecutive to the sentence imposed on count seven. The sentence on count six runs concurrently with the sentence imposed on counts four and five but consecutive to that imposed on count seven. The sentences imposed on counts eight and nine are concurrent with the sentence on count seven while the sentence on count ten was merged with that imposed on counts eight and nine. The aggregate sentence was 50 years with a 25-year parole ineligibility. A VCCB penalty of $2,225 was also assessed.
In appealing from his convictions and sentences, defendant advances the following contentions:
I. THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN A GUILTY VERDICT FOR KIDNAPPING, ACCORDINGLY DEFENDANT'S CONVICTION SHOULD BE REVERSED.
II. THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN A GUILTY VERDICT FOR FIRST DEGREE ROBBERY.
III. THE CUMULATIVE UNDULY PREJUDICIAL TESTIMONY ADMITTED AT THE TRIAL BELOW DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
IV. THE SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE AND THE COURT ERRED IN FAILING TO CONSIDER MITIGATING FACTORS.
At approximately 1:00 a.m. on February 17, 1985, Bankr. was awakened in his home by the sound of breaking glass. He arose and walked to the back room where he was confronted by defendant. Upon being asked what he was doing in the R.
home, defendant told Mr. R. to shut up, stating that he had a gun and would give the orders. Defendant's hand was inside his coat and positioned in such a way as to make it appear that he had a gun. Mrs. R., who was seven months pregnant, then appeared from the bedroom. Defendant told the couple to get on the floor and, as they didn't do it fast enough, threatened to blow their brains out. Mentioning his wife's condition and that their little girl was in the bedroom, Mr. R. told defendant to take whatever valuables they had but pleaded with defendant to leave them alone. Defendant then ordered the couple into the living room and told Mrs. R. to get something to tie her husband up. When Mrs. R. replied "What?", defendant again threatened to blow their brains out. Upon being told by her husband to get some belts and ties from the bedroom, Mrs. R. did so and then was directed to bind her husband's wrists and ankles together. Defendant had Mr. R. hop into the bedroom and Mrs. R. was directed to tie him to the bed. As Mrs. R. was doing so, defendant used his left hand to take some jewelry and cash. His right hand remained in the pocket of his jacket.
Upon being sure that Mr. R. was secure, defendant removed his right hand from his pocket and struck Mr. R. in the mouth. He immediately replaced his hand in the pocket and stepped back. Mrs. R. was then grabbed and dragged into the entryway between the bedroom and the living room where defendant proceeded to sexually assault her. Seeing the bottom of his wife's feet and hearing what he believed to be a pants zipper being opened, Mr. R. managed to free himself. He grabbed a ceramic cheese crock filled with 26 rolls of pennies and walked into the entryway. He saw defendant, with his pants down, on top of his wife. Mr. R. struck defendant on the head with the crock and, when defendant stood up, charged at him driving him back against the wall, then hit him in the chest and drove his arms apart so he could not reach for ...