On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Shebell, Skillman and Wallace.
The opinion of the court was delivered by
Tried by a jury defendant Darrell Smith was convicted of first degree kidnapping, N.J.S.A. 2C:13-1b (count two); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count four); second degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(3), as a lesser included offense of aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (count five); second degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c, as a lesser included offense of sexual assault, N.J.S.A. 2C:14-2c (count six); fourth degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count seven); fourth degree unlawful possession of weapons, N.J.S.A. 2C:39-5d (count eight); and third degree possession of weapons for an unlawful purpose, N.J.S.A. 2C:39-4d (count nine). The jury found defendant not guilty of first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one), and first degree armed robbery, N.J.S.A. 2C:15-1 (count three). Pursuant to N.J.S.A. 2C:13-1c(2), the trial court merged counts five, six and seven into count two and imposed a life term with a twenty-five year period of parole ineligibility. The court merged counts eight and nine into count four and imposed a concurrent seven-year term on count four and assessed a Violent Crimes Compensation Board penalty of $60.
On this appeal, defendant contends:
THE DEFENDANT'S CONVICTION AND SENTENCE FOR KIDNAPPING WHICH SUBJECTED HIM TO A SENTENCE OF LIFE IMPRISONMENT WITH A MANDATORY 25 YEARS OF PAROLE INELIGIBILITY IS UNCONSTITUTIONAL AND ILLEGAL AS THE TRIAL COURT NEVER INSTRUCTED THE JURY ON AN ESSENTIAL ELEMENT OF THAT OFFENSE, THAT IS, THAT IN ORDER TO CONVICT THE DEFENDANT, THEY HAD TO FIND BEYOND A REASONABLE DOUBT THAT THE DEFENDANT COMMITTED A SEXUAL ASSAULT ON THE VICTIM WHO WAS UNDER THE AGE OF 16 DURING THE COURSE OF THE KIDNAPPING.
DEFENDANT'S CONVICTION AND SENTENCE FOR A VIOLATION OF N.J.S.A. 2C:13-1c(2) MUST BE VACATED AS THE STATE FAILED TO PROVE THAT THE DEFENDANT COMMITTED A CRIME UNDER N.J.S.A. 2C:14-2, N.J.S.A. 2C:14-3 OR N.J.S.A. 2C:24-4.
THE DEFENDANT'S CONVICTION AND SENTENCE FOR A VIOLATION OF N.J.S.A. 2C:13-1c(2) MUST BE VACATED AS THE DEFENDANT WAS NEVER CHARGED IN THE INDICTMENT WITH HAVING COMMITTED THIS OFFENSE. (Partially Raised Below).
THE TRIAL COURT'S INSTRUCTIONS TO THE JURY ON FIRST DEGREE KIDNAPPING AND SECOND DEGREE SEXUAL ASSAULT WERE IMPROPER IN THAT THE TRIAL COURT INSTRUCTED THE JURY THAT IT COULD CONVICT THE DEFENDANT ON ALTERNATIVE FACTUAL AND LEGAL THEORIES OF LIABILITY, NOT CHARGED IN THE INDICTMENT. SUCH INSTRUCTIONS WERE IMPROPER AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10.
B. THE COURT'S CHARGE ON FIRST DEGREE KIDNAPPING WAS IMPROPER AS IT INCLUDED ADDITIONAL FACTUAL AND LEGAL ELEMENTS NOT CHARGED IN COUNT TWO OF THE INDICTMENT.
C. THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE ELEMENTS OF SEXUAL ASSAULT AS CHARGED IN COUNT SIX WERE IMPROPER IN THAT THEY EXCEEDED THE SCOPE OF THE CHARGES PRESENTED BY THE GRAND JURY IN COUNT SIX.
D. THE CHARGE ON BOTH KIDNAPPING AND SEXUAL ASSAULT WERE SO PREJUDICIAL AS TO EFFECTIVELY DENY THE DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION REQUESTING A COURT APPOINTED PSYCHOLOGICAL EXAMINATION OF THE VICTIM.
We agree with defendant's contention that the trial court should have submitted to the jury the question of whether defendant committed a sexual assault upon a victim under the age of sixteen during the course of a kidnapping in order to impose the enhanced sentencing provisions of N.J.S.A. 2C:13-1c(2). Further, we agree that defendant's attempt convictions do not come within the conditions for imposition of an enhanced sentence under the statute. However, our Conclusions do not affect defendant's convictions but only his sentencing. The prior ...