On appeal from the Superior Court of New Jersey, Law Division, Union County.
Havey, Stern and Brochin. The opinion of the court was delivered by Stern, J.A.D.
Defendant was convicted by a jury of first degree kidnapping, N.J.S.A. 2C:13-1b (count one), and first degree aggravated sexual assault, N.J.S.A. 2C:14-2a (count two). Pursuant to N.J.S.A. 2C:13-1c, the trial Judge merged the aggravated sexual assault conviction into the conviction for kidnapping and sentenced defendant to life imprisonment with twenty-five years to be served before parole eligibility.
On this appeal defendant argues:
POINT I: EYEWITNESS IDENTIFICATIONS BY THE VICTIM AND GILLIAM BASED UPON A ONE-MAN SHOWUP WHERE IMPROPERLY ADMITTED WITHOUT A WADE HEARING AND VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. .
POINT II: THE SURPRISE IN-COURT IDENTIFICATION BY BARLOW WITHOUT A HEARING TO DETERMINE ITS SUFFICIENCY, ITS RELIABILITY OR THE PRESENCE OF A DISCOVERY VIOLATION; AND THE DENIAL OF A MISTRIAL UPON THE SURPRISE AND BELATED REVELATION THAT SHE HAD VIEWED AND FAILED TO IDENTIFY DEFENDANT'S PICTURE IN A POLICE PHOTO ARRAY, DENIED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.
POINT III: THE BAD FAITH ACTIONS OF THE POLICE IN MANIPULATING AND CONCEALING EYEWITNESS TESTIMONY, AND IN THE WILLFUL DESTRUCTION AND NON-COLLECTION OF KEY PHYSICAL EVIDENCE, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. .
POINT IV: TRIAL COURT EVIDENTIARY RULINGS VIOLATED THE RULES OF EVIDENCE AND IN THE AGGREGATE DENIED DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT V: THE TRIAL COURT ERRED IN REFUSING TO CHARGE CRIMINAL RESTRAINT AS A LESSER INCLUDED OFFENSE OF KIDNAPPING.
POINT VI: THE SENTENCE IMPOSED BY THE TRIAL COURT WAS EXCESSIVE.
With one exception, we reject defendant's claims addressed to the convictions. We agree with defendant that the trial Judge should have honored defendant's request to charge criminal restraint as a lesser offense to kidnapping. In so doing, however, we note that our Conclusion does not affect the aggravated sexual assault conviction which was merged into the kidnapping. Defendant need not be retried for the aggravated sexual assault. Hence, if the State elects not to retry defendant on the kidnapping charge, or if defendant is ultimately convicted of a lesser offense or acquitted on count one, the conviction on count two may be resurrected and defendant may be sentenced thereon.
At approximately 7:30 a.m. on September 11, 1989, M.C., then a thirteen year old student at Plainfield High School, was walking to school when she was approached by a man on a bicycle. The sun was shining, and she had a "very clear" view of his face. She described him as 21 or 22 years old, "about 6 feet" tall and "muscular," with "short and frizzy" hair and a goatee. He wore a black short sleeve shirt and pants. She did not recognize him.
The man stopped three or four feet away from M.C. and asked her "to go into a house with him." She refused. He then told her to wait while he took his bike into a house on the street. However, M.C. was scared, and she hurried toward a bus stop where she knew that her mother and brothers were waiting for a bus. The man followed and he grabbed her "from around [her] waist" and "dragged [her] across the street" to a vacant lot. The man threw her on the ground, knelt on top of her, and hit her with his fist
"two to 3 times" on the face. Her efforts to escape were unsuccessful.
The man then "dragged" M.C. into an area "where there were a lot of trees." She tried to run away, but he pulled her pants and underwear down around her feet. He then "threw [her] on the ground" again. During this time M.C. had a close look at the perpetrator's face which was "very close and very clear."
The man "took his pants off" and raped M.C. Upon hearing noise from the direction of the street, "[a]s if someone was walking into that area," the assailant "stood up" and ran away. M.C. put her pants back on and returned to the street where she was met by an ambulance squad which had arrived in response to a police radio transmission. As he arrived, Moises Zambrana, one of the ambulance workers, saw a man being chased out of the woods by a police officer. He observed that M.C.'s face was "bruised and very bloody." She was crying and immediately told him that she had been punched and raped by a man who stopped her on the way to school.
Judy Barlow, who lived across from the lot, witnessed some of the events. While Ms. Barlow was getting ready to go to work, she heard a scream outside her window. When she looked out of her window, she saw a man holding a girl "around the waist" and "carrying her" across the street. Barlow also saw him throw "her on the ground and he was kneeling on top of her and then he hit her." Barlow called the police and asked them to "please hurry." After making the call, Ms. Barlow could not see the victim or assailant, but she heard screams and "muffled noises" coming from the lot.
A minute or so after her call, Barlow saw a police officer arrive. She watched him get out of his car and walk "into the bushes" on the lot. Because she continued to hear "muffled sounds" from the ...