On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 91-11-4740-I.
Before Judges Kestin, Steinberg, and Alley.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
OPINION CORRECTED 4/30/02
Defendant was charged in eighteen Essex County indictments in November 1991, arising from a series of offenses against nine Irvington and Newark women. In the indictments, several, and in some instances all of the following offenses were charged: first-degree robbery, N.J.S.A. 2C:15-1; first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); second-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:14-2(a); third-degree terroristic threats, N.J.S.A. 2C:12-3; third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a); second-degree aggravated assault, N.J.S.A. 2C:12-1(b); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-49(a). Nine of the eighteen indictments charged defendant solely with fourth- degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7.
On the State's motion, a Law Division judge ordered all the indictments to be tried together. Indictment No. 4740, relating to an assault on one S.J. was dismissed by the State prior to trial,*fn1 and sixteen indictments remained.*fn2
A jury trial was conducted from October 28 to November 6, 1992. After the State rested its case, the trial court dismissed the following charges: the terroristic threats count, Indictment No. 4741; robbery, Indictment No. 4744; and endangering the welfare of a child, Indictment No. 4747.*fn3 In its initial deliberations, the jury was not asked to consider the various charges of possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. It convicted defendant of the charges on all counts that had been submitted to it, except unlawful possession of a weapon under Indictment No. 4744.*fn4 On each of these eight indictments, defendant was found guilty of at least one crime.
Upon the return of these verdicts, the jury was then instructed to deliberate on the remaining eight charges, namely, possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. The jury found defendant guilty on each of these charges.
Defendant was sentenced on July 7, 1993. Pursuant to the State's application, the court imposed an extended term. The aggregate sentence imposed on defendant was life in prison plus thirty years and a forty-year parole disqualifier. Because many of the sentences were imposed to run concurrently, we indicate only the base sentences. On Indictment No. 4744, first-degree kidnapping, the court imposed a life sentence with twenty-five years of parole ineligibility. On Indictment No. 4741, first- degree kidnapping, the court imposed a thirty-year sentence with a fifteen-year parole disqualifier, to run consecutive to the sentence imposed on Indictment No. 4744. All other sentences imposed were to run concurrent to those sentences.
Defendant filed his notice of appeal on August 23, 1993. No brief was filed, and the appeal was dismissed on January 22, 1996. On May 19, 2000, the appeal was reinstated and thus the matter is now before us on direct appeal.
According to evidence introduced by the State, there were eight victims, the first attack occurred on July 8, 1990, and the last on January 2, 1991. The jury later indeed determined that defendant was responsible for kidnapping, attempted/aggravated sexual assault/contact, assault, and/or robbery with respect to eight women. Each attack bore similarity to the others, and most occurred late at night in the same area of Irvington, New Jersey. Several victims were initially approached under the guise that defendant was looking for someone or some place. We summarize the alleged attacks in the order in which they occurred.
Victim One–Indictment No. 4746
On July 8, 1990, G.P. was attacked and robbed while she was walking down the street near her apartment in Irvington. Her attacker then dragged her half a block to a nearby park, poking something G.P. assumed to be a gun into her back. Taking her to a secluded and unlit area of the park, the man forced her to take her clothes off while he exposed his penis. He sought fellatio, which G.P. refused to perform. Angrily, he turned her around and raped her from behind. When he let her go, G.P. saw the man holding a screwdriver.
On January 21, 1991, G.P. was shown a photograph array and picked out the picture of defendant as her attacker. Tests conducted on G.P. the night of her attack confirmed there was sperm in her vagina. When that was tested, it was revealed that the sperm came from a type O blood secreter. Tests of defendant revealed that he was a type O blood secreter, which is a relatively common biological characteristic. The results meant, however, that defendant could not be excluded as the perpetrator.
Victim Two–Indictment No. 4747
The next known attack occurred on July 15, 1990, in Irvington. A.W.B. was grabbed outside the door of her home, to which she was returning with her three-year-old daughter. A hard object was pressed to her neck and she was forced to go to the backyard of the home. Her attacker began to fondle her and A.W.B.'s daughter screamed. At this point, a struggle ensued and A.W.B. was stabbed in the face and neck with a screwdriver. The man grabbed her pocketbook and ran away. ...