This case raises the issue of whether for the purposes of the kidnapping statute, N.J.S.A. 2C:13-1, a removal or confinement that began lawfully may later become unlawful. This question has not been directly addressed in prior decisions.
The issue arises from a motion filed by the defendant to dismiss the indictment for kidnapping and the corresponding charges of aggravated sexual assault and aggravated criminal sexual contact.
The decision as to whether to dismiss an indictment rests solely within the discretion of the trial court. Since grand juries perform an accusative function and do not determine innocence or guilt, courts very rarely alter their decisions. Indictments are only dismissed if they are "manifestly deficient or palpably defective," State v. Wein, 80 N.J. 491, 501, 404 A.2d 302 (1979), on "the clearest and plainest ground." State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18, 472 A.2d 1050 (1984). An indictment that appears sufficient on its face will stand if the State presented at least some evidence to the grand jury as to each element of the prima facie case. State v. Vasky, 218 N.J. Super. 487, 528 A.2d 61 (App. Div. 1987).
The facts alleged in the grand jury proceedings are as follows: On March 6, 1993 the defendant called fifteen year old J.A. on the phone and arranged to meet her later in the afternoon in South Brunswick. The two had met the day before, while J.A. was on a school trip. The defendant picked up J.A. in his car and they spent the afternoon and evening visiting friends of J.A. At approximately nine o'clock, the defendant told J.A. that he wanted to leave because he had a long drive and had to work in the morning. They walked over to his car and the defendant began to kiss her. J.A. told him that she was not interested and said that she had to go to the bathroom.
After going to the bathroom in the woods, J.A. voluntarily joined the defendant in his car, and told nim that she wanted to go home. Defendant drove off and said that he would take her home. When they reached the development where J.A. lived, he did not take her to her home. Instead, he grabbed her and began to choke her and kiss her. He started to drive around, keeping her in the car with him. Over the next two hours, he grabbed her breast, digitally penetrated her, and forced her to perform fellatio on him. During this period, J.A. repeatedly pleaded to be released, but the defendant kept her in the car, and threatened numerous times to kill her.
At approximately midnight, J.A. told the defendant that she felt nauseous and had to urinate. Defendant again threatened to kill her, and said that she could leave the car to relieve herself only if she removed all of her clothes. Defendant tore her clothes off and allowed her to open the door. He grabbed hold of her, but J.A. managed to break loose, and ran naked to the nearest house for help.
A kidnapping charge under N.J.S.A. 2C:13-1(b) requires a showing that the victim was unlawfully ...