On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Approved for Publication November 27, 1995.
Before Judges Stern, Wallace and Newman. The opinion of the court was delivered by Wallace, Jr., J.A.D.
The opinion of the court was delivered by: Wallace
The opinion of the court was delivered by WALLACE, JR., J.A.D.
Defendant was found guilty of aggravated sexual assault by anal penetration in violation of N.J.S.A. 2C:14-2a (count one); aggravated sexual assault by vaginal penetration while armed with a weapon in violation in N.J.S.A. 2C:14-2a (count two); criminal restraint in violation of N.J.S.A. 2C:13-2 (count three); terroristic threats in violation of N.J.S.A. 2C:12-3a and/or 12-3b (count four); possession of a handgun for an unlawful purpose in violation of N.J.S.A. 2C:39-4a (count five); and robbery in violation of N.J.S.A. 2C:15-1 (count seven). At the Conclusion of the State's case, the trial court dismissed the possession of an imitation firearm for an unlawful purpose in count six. The trial court sentenced defendant on count one to a twenty year term with a ten year parole disqualifier; on count two to a consecutive twenty year term with a ten year parole disqualifier; on count three to a concurrent five year term; on count four to a concurrent five year term; on count five to a concurrent ten year term; and on count seven to a consecutive twenty year term with a ten year parole disqualifier. The trial court also imposed VCCB penalties totaling $20,120. Defendant's aggregate sentence was sixty years in prison with a thirty year parole disqualifier.
In his brief on appeal defendant makes the following contentions.
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW BY FAILING TO SUBMIT THE LESSER INCLUDED OFFENSES OF AGGRAVATED SEXUAL ASSAULT TO THE JURY, AND BY ERRONEOUSLY INSTRUCTING THE JURY THAT "INSERTION OF THE PENIS INTO THE CREVICE FORMED BY THE LEFT AND RIGHT BUTTOCKS TO ANY DEGREE ... WOULD CONSTITUTE PENETRATION FOR PURPOSES" OF FIRST DEGREE SEXUAL ASSAULT. (U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. I, PARS. I, 9, 10).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT VOICE IDENTIFICATION AND THE TAINTED IN-COURT VOICE IDENTIFICATION OF THE DEFENDANT BY THE VICTIM, AND THUS DENIED HIM HIS RIGHT TO A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. (U.S. CONST., AMENDS. VI; XIV; N.J. CONST., ART. I, PARS. 10).
THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE, AND VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS.
A. THE IDENTITY OF DEFENDANT AS THE ASSAILANT IN THIS CASE WAS NOT ESTABLISHED BEYOND A REASONABLE DOUBT.
B. THE EVIDENCE RELATING TO COUNT ONE OF THE INDICTMENT WAS INSUFFICIENT TO SUPPORT A FINDING THAT DEFENDANT COMMITTED AN ACT OF ANAL PENETRATION UPON THE VICTIM WITH HIS PENIS.
THE COURT ABUSED ITS DISCRETION BY IMPOSING MAXIMUM TERMS AND BY ORDERING CONSECUTIVE SENTENCES ON COUNTS ONE, TWO AND SEVEN. ADDITIONALLY THE COURT ABUSED ITS DISCRETION BY ORDERING THE MAXIMUM V.C.C.B. PENALTIES ON COUNTS ONE AND TWO.
A. THE MAXIMUM TERMS IN THIS CASE ARE MANIFESTLY EXCESSIVE.
B. THE THREE CONSECUTIVE SENTENCES ARE NOT SUPPORTED WITH ANY REASONS AND CAN NOT BE JUSTIFIED.
C. THE MAXIMUM FINES ON COUNTS ONE AND TWO ARE MANIFESTLY EXCESSIVE.
We hold that the jury charge on aggravated sexual assault by anal penetration was erroneous, that lesser included offenses to aggravated sexual assault by anal penetration should have been charged, that the court failed to give reasons for imposing consecutive sentences, and that it was an abuse of discretion to impose an aggregate VCCB penalty of $20,120. In all other respects, we affirm defendant's judgment of conviction.
The jury could reasonably have found from the evidence that on October 17, 1991, around 8:20 p.m., M.M., a twenty-two year old woman, left a health club in Pequannock to get into her car. As she put her key into the door lock, she saw a man wearing a stocking mask approach her with a gun. The man was wearing faded blue jeans and a navy blue hooded sweatshirt. The man warned M.M. that if she moved or screamed he would blow her brains out. He then took her by her left arm and pushed her into the adjacent woods which were dense and full of pricker bushes. M.M. told him she could not go any further. The man put his hand over her mouth. M.M. noticed his hands were white and thin with long fingernails. She also detected a very foul odor.
M.M. asked the man what he wanted. He said that he was taking her hostage because the police suspected him of committing a robbery and had impounded his truck by the lake. M.M. continued to ask the man questions even after he threatened to kill her. She could not see his face but listened very carefully to his voice so she could hopefully identify it later. The man continued to hold the gun to her left side. He then took her to a masonry plant in a secluded area. The man tied her wrists behind her back with wire or plastic and put tape over her eyes and mouth. The tape was not very sticky because M.M. could see by looking down, and the tape loosened as she began to speak.
The man led her to another area and stood behind M.M. to push her up an embankment. M.M. climbed over a fence and cut her leg. The man told M.M. that if she said anything about this he would kill her parents, tie her up, and force her to watch him having sex with her two sisters. At a certain point the man stopped M.M., cut her hands loose, and took her clothes of f. The man ordered her to get on her knees, but M.M. refused. He then told her to lean forward and attempted' anal penetration. M.M. kept moving forward and would tense up to prevent penetration. M.M. said that the man became frustrated and pulled his pants up.
The assailant then placed M.M.'s jacket on the ground and ordered her to lay face down on her jacket. M.M. said she was laying on her stomach when the man inserted a bottle of hair spray into her vagina. He had apparently discovered the bottle of hair spray among the contents of her pocketbook which he had dumped on the ground. He told her to count to 200. M.M. heard him leave. After counting to 100, M.M. got up, and noticed that her bra, underwear, socks, and pocketbook with $30 were missing. She was not sure whether the $30 consisted of three ten dollar bills or a twenty dollar bill, a five dollar bill, and five one dollar bills.
She gathered her remaining belongings and made her way back to the health club parking lot. There she encountered a spa employee, James Kayal. She told Kayal of the assault. Kayal drove M.M. home where she met her girlfriend who accompanied her to the Pequannock police station. M.M. provided details of the attack to Patrolman Louis Behrens at or about 9:30 p.m. She described her attacker as being about five feet nine inches tall weighing between 140 and 160 pounds. She said he was wearing faded blue jeans, which were frayed at the bottom, and a navy blue hooded sweatshirt. M.M. described the man's voice as being "very lethargic" and "lower class, uneducated."
Around 9:45 p.m. the police transported M.M. back to the scene. Along the path leading to the scene of the assault, Behrens found a piece of adhesive tape, a hair spray bottle, and an aspirin container. M.M. was later taken back to the police station where she was interviewed by Detective Catherine Fenske of the Morris County Prosecutor's office. M.M. was then transported to the hospital. After consulting with her supervisor, Fenske decided that no rape test kit should be performed because of the limited physical contact between M.M. and the attacker. The doctor examined M.M.'s anal and ...