On appeal from Superior Court of New Jersey, Law Division, Bergen County, S-108-98.
Before Judges Eichen, Collester and Lintner.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2001
Tried to a jury, defendant Joseph A. Cooke was convicted of second degree sexual assault, contrary to N.J.S.A. 2C:14-2c(2). He received a sentence of three years probation, a $50 VCCB penalty, a $75 Safe Neighborhood penalty and a $30 LEOTEF penalty. The State has appealed the sentence, and defendant has cross-appealed from his conviction.
On January 21, 1998, a Bergen County grand jury returned Indictment No. S-108-98, charging defendant with two counts of second degree burglary, contrary to N.J.S.A. 2C:18-2 (counts I and IV); two counts of first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(3), (counts II and V); and two counts of second degree sexual assault, contrary to N.J.S.A. 2C:14-2c(2), (counts III and VI). Defendant entered a plea of not guilty. His motion to suppress his statements to the police was denied.
The State's proofs at trial were that on August 3, 1997, at about 1:00 a.m. the victim L.B. fell asleep on his living room couch in a house he shared in Rutherford. He awoke because a man was performing oral sex on him. L.B. jumped up and held the intruder while calling his roommates for assistance.
In response to a 9-1-1 call Rutherford Police Officers Buell and Ahern arrived to find the defendant being held down by two men.
The defendant told Officer Buell that he and L.B. were homosexuals and were drinking in the house with others that night. He was advised of his Miranda*fn1 rights and placed under arrest.
At the Rutherford police station defendant gave a statement to Detectives James Bradley and Lynn Morrissey of the Sex Crimes Unit of the Bergen County Prosecutor's Office. He said that he took a bus to New York City that evening and, after consuming a bottle of vodka, went to a gay club. Afterwards he walked around for about an hour and returned to New Jersey. The next thing he remembered he was being held down on the floor by some men while a police officer yelled at him. He said that he had been invited to the house earlier that evening. He claimed he had previously seen L.B. at his home but never spoke with him before that night. When asked if he placed his mouth on L.B.'s penis, defendant said he did not remember but that it could have happened.
In his statement to police L.B. told of a similar incident about a week earlier. On July 28, 1997, he returned home from a bar at about 2:00 a.m. and went to sleep on the floor of his living room because one of his roommates was asleep on the couch. Some time later he awoke because "a person's head was bobbing up out of [his] lap" while he had an orgasm. L.B. said he chased the intruder out of his house and lost sight of him. He returned to the living room and locked his door. Thinking he may have had a bad dream, L.B. went back to sleep. He did not report the matter to the police when he woke up the following morning. L.B. was missing his car keys which had been on the coffee table. He said that after the August 3 incident he found the keys outside by his porch.
When asked about July 28, 1997, the defendant said he entered L.B.'s home at about 3:00 a.m. and performed fellatio upon a man lying on the floor. He gave varying responses as to whether the person was awake or asleep, but he admitted putting the man's penis in his mouth without his consent. He also claimed that he had sexual relations in the same house about a month earlier but did not know with whom because it was dark.
Defendant's defense at trial was consent. He did not testify or present any witnesses. The jury found him not guilty of all charges except for the count of second degree sexual assault on ...