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State v. Cuni

July 18, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AZEM CUNI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Approved for Publication July 18, 1997.

Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Humphreys, J.A.D. Pressler, P.j.a.d., Dissenting.

The opinion of the court was delivered by: Humphreys

The opinion of the court was delivered by

HUMPHREYS, J.A.D.

The defendant was convicted by a jury of first degree aggravated sexual assault on T.O., contrary to N.J.S.A. 2C:14-2(a)(3) (count one); second degree sexual assault on T.O., contrary to N.J.S.A. 2C:14-2(c)(1) and (2) (counts two and three); third degree burglary, contrary to N.J.S.A. 2C:18-2 (count four) and fourth degree criminal trespass, contrary to N.J.S.A. 2C:18-3 (count five). At sentencing, the Judge merged counts two and four into count one. Defendant was sentenced on count one to twelve years in prison, on count three, to a concurrent six year term and on count five to a concurrent six month term. A Violent Crimes Compensation Board penalty of $150 was imposed. Defendant appeals. He contends:

I.

THE DEFENDANT'S RIGHTS OF CROSS-EXAMINATION AND CONFRONTATION AND HIS RIGHTS TO PRESENT A DEFENSE AND TO A FAIR TRIAL WERE VIOLATED BY THE EXCLUSION OF RELEVANT EVIDENCE AND THE RESTRICTION OF CROSS-EXAMINATION ON RELEVANT MATTERS.

II.

DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE COUNSEL AND WAS CLEARLY PREJUDICED BY HIS TRIAL COUNSEL'S FAILURE TO COMPLY WITH THE RAPE SHIELD LAW AND BY HIS DECISION TO PRESENT EXPERT TESTIMONY WHICH INDICATED THAT THE DEFENDANT WAS GUILTY OF FORCIBLE RAPE. (Not Raised Below).

III.

THE COURT'S INCORRECT EXPLANATION OF THE ELEMENT OF MENTAL DEFECTIVENESS ALONG WITH THE COURT'S VOIR DIRE QUESTIONS AND THE PROSECUTOR'S OPENING ALLOWED THE JURY TO CONVICT DEFENDANT UNDER A STANDARD OF MENTAL DEFECTIVENESS MUCH LESS STRENUOUS THAN THAT INTENDED BY THE LEGISLATURE. (Partially Raised Below).

IV.

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY TO SCRUTINIZE THE CIRCUMSTANCES OF THE DEFENDANT'S ALLEGED ORAL STATEMENTS TO THE POLICE DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below).

V.

THE TRIAL COURT'S FAILURE TO DEFINE COERCION AS AN ELEMENT OF THE AGGRAVATED SEXUAL ASSAULT ALLEGED IN COUNT TWO DENIED DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW.

VI.

DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW BECAUSE THE COURT FAILED TO CHARGE SEXUAL CONTACT AS A LESSER-INCLUDED OFFENSE.

VII.

DEFENDANT'S CONVICTION UNDER COUNT ONE MUST BE REVERSED DUE TO THE INADEQUATE INSTRUCTION ON AGGRAVATED SEXUAL ASSAULT.

VIII. DUE TO THE COURT'S INADEQUATE CHARGE ON CRIMINAL TRESPASS AS A LESSER-INCLUDED OFFENSE, DEFENDANT['S] CONVICTION FOR BURGLARY MUST BE REVERSED. (Not Raised Below).

IX.

PREJUDICIAL PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (Not Raised Below).

We have thoroughly examined the record and considered the arguments presented. The conviction for the crime in count one, aggravated sexual assault, was based on sexual penetration of T.O. during a burglary. The burglary consisted only of an unauthorized entry into T.O.'s home with a purpose to commit a sexual assault. Under these circumstances, in order for the defendant to be convicted of the first degree crime of aggravated sexual assault, the State must prove beyond a reasonable doubt the requisite elements of the crime of sexual assault. The jury was not so charged. This omission was clearly capable of causing an unjust result. See R. 2:10-2. Hence, the conviction in count one for aggravated sexual assault must be reversed. For substantially the same reason, the burglary conviction in count four must also be reversed. We affirm the convictions on counts two, three and five.

I

FACTS

T.O. is mentally handicapped due to Down's Syndrome. She was classified in 1981 by a child study team as "educable mentally retarded" with an IQ of 70. She was formally educated in public schools until she was twenty-one years old. Afterwards, she lived at home with her mother. She has been employed in various jobs. She is approximately four feet nine inches tall, tends to be overweight and has flat facial features. Her fingers are somewhat stubby and her speech is child-like.

The defendant is an emigre from Albania. He attended school in Albania until the eighth grade. According to a post-conviction report from the Adult Diagnostic and Treatment Center ("ADTC"), the defendant's mental ability is uncertain. As set forth in the report: "given that English is not Mr. Cuni's first language, there was no way to obtain an accurate estimate of his level of intellectual functioning." Tests given at ADTC placed him in the "mentally deficient" classification, but according to the ADTC report, "based upon clinical impression, this seems to be an underestimate of his true intellectual potential." Additionally, the report indicates there is "some possibility of underlying neurological impairment."

The evidence at trial can be summarized as follows. In October 1992, T.O. telephoned a local restaurant to order a sandwich to be delivered to her home. The defendant was a delivery man for the restaurant. He arrived with the sandwich and knocked on the door. The door had a lock to which only T.O.'s mother had a key. T.O. opened the window near the door. T.O. testified that when she opened the window, the defendant kissed her on the lips, which she did not want. He told her there was "talk" in the restaurant about her and that they said she was a beautiful person.

The defendant testified that when she opened the window, he told her that she was "nice" and "good looking." She responded, "yes, I am you know." The defendant said that he then asked her for a kiss and she said okay and they kissed "on the lips." A police officer testified that he asked the defendant, "did [T.O.] want to kiss you," and the defendant responded "I don't know."

T.O. testified that several weeks later, she returned home from work around 2:30 p.m. She again ordered a sandwich. While waiting for the sandwich she watched television in her bedroom. The defendant arrived at her home with the sandwich. He testified that he knocked on the door. She testified that she did not hear any knocking. Defendant said he waited three minutes and then opened the door which was unlocked.

T.O. testified as follows. She left her bedroom and found the defendant standing in her living-room with the sandwich. She felt "invaded" because she had not authorized the delivery-person to enter her home. The defendant placed the sandwich on the dining-room table, kissed her and placed his hand inside her slacks. She did not kiss him back and asked him to leave. The defendant followed her to her bedroom where she went to get money to pay for the sandwich. He sat T.O. down on her bed, pulled her pants and underwear down to her ankles, pulled down his pants, threw off his apron and had sexual intercourse with her, which, T.O. testified, "I did not want."

T.O. testified further that when defendant "stuck his penis in my vagina . . . it hurt" but that it did not bother her because she focused on something else. She was trying to think of ways to "get out of it." The defendant ejaculated. He wiped himself on a pink terrycloth bathrobe which he threw into a closet in the bedroom. Prior to leaving, defendant took the money for the sandwich, requested a dollar tip, and told her, "don't tell anyone." After defendant left, T.O. wished to tell her mother what had happened but did not do so because her mother was "under a lot of stress." T.O. washed the bathrobe on which the defendant had wiped himself.

The defendant testified that after he met T.O. in the living-room, he asked her if he could kiss her. He then kissed her, held her hand and later asked if she "wanted to do it." She said "yes." They went to T.O.'s bedroom, took off their pants and engaged in consensual sexual intercourse. Defendant said he did not have a condom so "I didn't come in her. I come outside." He testified that T.O. "was not like anything like scared . . . she was happy." Afterwards, T.O. paid defendant and gave him a tip; he said "bye" and left. Defendant acknowledged that he left his apron behind. A police officer testified that when he asked defendant whether T.O. had consented to having intercourse with him, the defendant responded, "I guess so."

The defendant testified that he did not know that T.O. was mentally retarded and did not know about "Down's Syndrome." He understood what T.O. was saying and T.O. appeared to understand what he was saying. According to his testimony, T.O. called him

twice later that same day. He told her that he was working at the restaurant and could not return to her home.

T.O. testified that several weeks after the sexual intercourse, the defendant returned to her house. The door was closed but unlocked. She saw him standing at the door to her bedroom. He asked if she liked him. She said she'd have to think about it. She told him to come back because she had to clean up the kitchen. He left.

The defendant testified that he knocked on the door and opened it. T.O. came from the kitchen. The defendant testified:

She goes you. Said how you doing. I said I didn't expect you here. I didn't have the phone to call you but if you don't want me here she said no. But can you come back later. I said let me see if I have time. I said you want me to leave. She said yes. I said okay. I see you later. I see you later.

He testified that when she asked him to leave, he left "right away." T.O. testified that when the defendant left, she called a neighbor because her mother was not home. The neighbor told her to call her mother which she did. Thereafter, the police investigated the matter and arrested the defendant.

II

AGGRAVATED SEXUAL ASSAULT

The defendant was charged in count one of the indictment with committing the first degree crime of aggravated sexual assault by sexually penetrating T.O. during the commission of a burglary. The State contends that the burglary consisted of defendant's entering T.O.'s home without permission for the purpose of committing a sexual assault.

The defendant would be guilty of sexual assault, a second degree crime, if he committed:

an act of sexual penetration with another person under any one of the following circumstances:

(1) [He] uses physical force or coercion but the victim does not sustain severe personal injury;

(2) the victim is one whom [he] knew or should have known was physically helpless, mentally defective or mentally incapacitated.

[N.J.S.A. 26:14-2(c)(1)-(2) (emphasis added).]

The defendant would be guilty of aggravated sexual assault, a first degree ...


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