On appeal from Superior Court, Law Division, Camden County.
Petrella and O'Brien. The opinion of the court was delivered by Petrella, P.J.A.D.
[227 NJSuper Page 52] Keith Adams appeals from the denial of his post-conviction relief motion. After the denial of his direct appeal, Adams filed
a motion to correct an assertedly illegal sentence. This motion was denied on October 23, 1986 by the same judge who presided over Adams' jury trial in October 1980 and imposed sentence on February 20, 1981.
Setting forth his reasons in a well-written and comprehensive memorandum dated February 20, 1981, pursuant to R. 3:21-4(e) Judge Weinberg sentenced Adams to ten years on the second degree attempted aggravated sexual assault conviction; (N.J.S.A. 2C:5-1 and 2C:14-2a(3)); a consecutive ten year sentence on the second degree burglary conviction (N.J.S.A. 2C:18-2a(1)), and a consecutive 18 months sentence for the fourth degree criminal sexual contact conviction (N.J.S.A. 2C:14-3b). The judge merged the assault conviction (N.J.S.A. 2C:12-1a)*fn1 for sentencing purposes. A ten year period of parole ineligibility was imposed, and defendant was assessed a $5,000 penalty in favor of the Violent Crimes Compensation Board. The judge expressly considered and refused to merge the fourth degree criminal sexual contact conviction with the attempted aggravated sexual assault conviction.
On March 5, 1985 this court affirmed*fn2 Adams' convictions and sentences. The Supreme Court denied certification. 101 N.J. 258 (1985).
On October 17, 1986 Adams moved for post-conviction relief on the ground that the sentence imposed was illegal. He argued that the court should not have imposed consecutive sentences on the aggravated sexual assault conviction and burglary conviction. This motion was denied. Adams then
filed his notice of appeal out of time.*fn3
On this appeal from the denial of his post-conviction relief application, Adams contends:
1) The trial court committed constitutional error in failing and refusing to merge the defendant's consecutive convictions and sentences for second degree burglary and fourth degree criminal sexual contact into the defendant's conviction for attempted aggravated sexual assault.
2) That portion of defendant's sentence mandating that he be ineligible for parole for ten years must be vacated and the matter remanded for a resentencing. (Not raised below.)
A review of the facts presented to the jury in the October 1980 trial is necessary in view of the merger arguments. Just before midnight on May 1, 1980 the victim, a 79 year old woman, was alone in her living room in her home in Somerdale. When she heard noises at the side door, she telephoned her neighbor and asked him to call the police. While she was still on the telephone, she heard a loud crash as an intruder broke through the side door. She saw a naked black man, later identified as defendant Keith Adams, enter her kitchen with a white cloth over his head and walking around in a stooped over manner. When the man saw her he put his hand over her mouth and told her to hang up the telephone. The victim did as she was told and pleaded with Adams not to hurt her. Adams nevertheless began to slap this elderly woman in the face, hit her, pull her by the wrists and bang her against the wall.
Adams then pulled the victim onto the couch and sat next to her. When she went to sit in a nearby chair, he told her not to sit there. Adams raised the victim's dress and forced her to sit on his lap. According to the testimony, because the victim had diverticulitis she was not wearing underwear. She was forced to sit on Adams' lap, and he began to "maul" her by moving his hands underneath her dress and feeling her breasts and vaginal
area. The victim indicated that her assailant's penis was not erect and no penetration occurred.
In the meantime, a police officer from the Somerdale police department responded to the victim's home at about 11:41 p.m. and was met by a neighbor. The officer observed the broken door on the right side of the house and heard a woman's voice saying "please don't, please don't." The officer radioed for assistance and a sergeant arrived and entered the house through the broken side door.
Despite the dim lighting, the sergeant observed two individuals sitting in a chair. The officer described Adams as being in a "pumping position." He walked towards them with a flashlight in one hand and a gun in the other. When the sergeant was about eight feet from them, he turned his flashlight on Adams. He saw the victim and Adams in the chair, and said "police, freeze or I'll shoot." When the flashlight was upon the man the sergeant recognized it was Keith Adams from previous encounters. Adams then lifted the victim and turned her towards the policeman who observed that Adams was naked. After moving one step to the left, Adams then dove through a window.
The other police officer who had remained outside heard the breaking glass and saw a figure running to the back of the house. The officer pursued the man who he described as a tall, well-built, unclothed black man; he was not able to see his face. The pursuit ended when the officer was unable to jump over a fence which Adams had vaulted.
After the incident the victim would not go to the hospital, although she testified that as a result of the episode her shoulders caused her pain.*fn4 Adams was subsequently arrested
at his sister's home and it was observed that his socks were wet on the bottom, and that there were scratch marks on his body. He was taken to John F. Kennedy Hospital and his clothing was forensically examined. The boxer shorts which he was wearing at the time of the arrest had a blood spot which proved to be of human origin. His socks revealed the presence of hair from a Caucasian individual and when compared with the hair of the victim matched 10 out of 27 characteristics. A window shade obtained at the victim's home also tested positively for human blood. A pair of light blue boxer shorts was found at the scene of the incident. At the trial Adams presented an alibi defense and testified that he and a friend had been drinking that night at his sister's home.
Adams offered various explanations for the cuts and scratches found on his body at the time of his arrest. He explained that he received the scratches on his arms, back and knee when he climbed through a window after his sister's daughter locked him out. Adams also said that he scratched his shins tripping on the steps and that the injuries to his forearm came from climbing a tree on which there was a Clorox bottle with wires protruding. The cut on his wrist was assertedly received from a tin can while taking out the trash.
Adams argues that the judge erred in refusing to merge his convictions for second degree burglary and fourth degree criminal sexual contact into his conviction for attempted aggravated sexual assault, essentially relying on State v. Ramos, 217 N.J. Super. 530 (App.Div.1987). The State argues against merger and takes the position that Ramos was wrongly decided on the merger issue. Moreover, it opposes Adams' application on the procedural grounds that he is barred from seeking post-conviction relief under R. 3:22-4 because the issue could
have been raised on his direct appeal, and under R. 3:22-12 because an illegal ...