On appeal before the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-03-0314I.
Before Judges Havey, Fall and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
Submitted January 5, 2004
Defendant Naseem Abdul Muhammed was charged in a Passaic County indictment with first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count 1); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6) (count 2); and third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (count 3). Tried to a jury, defendant was acquitted of all three charges but found guilty of the lesser-included offense of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The jury deadlocked on the lesser-included charge of second-degree kidnapping, N.J.S.A. 2C:13-1(c), which was ultimately dismissed by the trial judge. On the criminal sexual contact conviction, defendant was sentenced to an eighteen-month term. Appropriate fees and penalties were also imposed.
There were differing versions of the encounter between defendant and M.M. from which the criminal charges against defendant arose. According to the State's proofs, on December 22, 1999, at approximately 11:30 p.m., M.M. was walking near the corner of Ellison Place and East 22nd Street in Paterson, an area known for being frequented by prostitutes. M.M. was walking home from a cousin's house when she noticed a vehicle slowly approaching from behind. The vehicle pulled in front of M.M. and defendant exited. He showed M.M. a badge and identification card, claimed to be a Paterson police officer, and informed her that she was under arrest for prostitution. Actually, defendant had been a police officer for the City of Passaic for about fifteen years but was terminated from service one month prior to this incident and at the time was challenging his termination. In any event, M.M. denied being a prostitute and explained that she was just walking to her home a few blocks away. Nevertheless, M.M. complied with defendant's command to get into the back seat of his unmarked Nissan Maxima because she was"taught to trust the police" and believed that she had no other choice.
Defendant, who was drinking beer, drove to a secluded, dead-end street in the area of East 25th Street and 17th Avenue in Paterson, where he parked. Defendant asked M.M. if she had a condom and told her that if she would"do [him] right" he would let her go. Defendant then climbed into the back seat, put on a condom, and forced M.M. to perform fellatio on him. Five minutes later, defendant told M.M. to remove her clothes. When she refused, he pulled them off of her himself, turned her over onto her stomach and had vaginal sex with her for approximately fifteen to twenty minutes.
When he was finished, defendant took the condom off and wrapped it in a napkin and threw it on the floor. He then dressed and returned to the front seat of the car, while M.M. picked up the condom and placed it in her pocket. M.M. refused the $4 defendant offered to pay her, and declined to move into the front seat as defendant requested because she was afraid that he would drive away and leave her"standing there looking stupid."
Rather than get out of the car and run away, M.M. instead insisted that defendant drive her to the Paterson police station as he had originally threatened. Even when defendant told her she could get out, M.M. refused to leave and again insisted that defendant take her to the police station. Defendant drove away and while he and M.M. traveled through Paterson, he repeatedly pulled to the side of the road and asked M.M. to move up to the car's front seat, but each time she declined. Finally, at approximately 1:15 a.m. they arrived at the Paterson police headquarters.
Defendant identified himself to the officer at the desk, Sergeant Alexander DeLuccia, as a Passaic police officer and displayed a badge that DeLuccia recognized as similar to those carried by Passaic police officers. Defendant began to speak to Sergeant DeLuccia when M.M. interrupted and said that defendant had forced her to have sex with him. Defendant then explained that he had ordered M.M. into his car in order to confront her about her harassment of his brother and sister and to convince her to stop. After hearing defendant's version, Sergeant DeLuccia asked M.M. for her account and she repeated that defendant had ordered her into his car after identifying himself as a police officer, took her to a secluded location, and forced her to have sex with him. Following the assault, she refused to exit the vehicle and insisted that defendant take her to the police station. M.M. then produced a paper towel containing the condom that she claimed defendant had worn during the sexual assault.
According to Sergeant DeLuccia, defendant became nervous and upset at that point and stated that he wanted to go home, that he was married and lived in Passaic with his wife. Sergeant DeLuccia responded that defendant was not free to leave and that the incident had to be investigated, at which time another Paterson police officer moved into position near defendant. Defendant and M.M. were then separated. Defendant was read the Miranda*fn1 warnings, and was subsequently arrested.
Despite his initial account of the incident to the police, defendant did not testify at trial but suggested, through counsel, that M.M. was a prostitute and that any sexual relations between the two were consensual. As noted, the jury acquitted defendant of all charges in the indictment but convicted him of the lesser-included offense of criminal sexual contact.
On appeal, defendant raises the following issues for our consideration:
I. THE PROSECUTOR'S REPEATED COMMENTS ON SILENCE WERE INAPPROPRIATE AND INFRINGED ON DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT AND STATE LAW.
II. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE COURT ADMITTED NUMEROUS STATEMENTS FROM THE DEFENDANT WITHOUT CONDUCTING A RULE 104 HEARING, AND FAILED TO PROVIED REQUIRED INSTRUCTIONS TO THE JURY.
III. DEFENDANT'S CONVICTION FOR FOURTH DEGREE CRIMINAL SEXUAL CONTACT SHOULD BE REVERSED BECAUSE THAT CHARGE SHOULD NOT HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE UNDER THE FACTS OF THIS CASE.
IV. THE SENTENCE IMPOSED WAS EXCESSIVE AND THE SENTENCING JUDGE USED IMPROPER FACTORS TO OVERCOME THE PRESUMPTION AGAINST IMPRISONMENT.
V. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
We conclude that the issues raised in Points I and III are meritorious and warrant reversal of defendant's conviction.
Defendant's principal contention is that the prosecutor's repeated references over defense objections to defendant's failure to offer the version of events suggested at trial - namely that M.M. was a prostitute with whom he engaged in consensual sex - at the time of his original account to the police and while in custody infringed on his Fifth Amendment right against self-incrimination and New Jersey's common law and statutory counterpart of that privilege. We agree and also find, as a matter of basic evidence law, that such comments were not relevant and unduly prejudicial.
The prosecutor's comments on opening, on examination of Sergeant DeLuccia, and on summation, which were the subject of defense objection below and are now challenged on this appeal, are as follows. In his opening statement, the prosecutor stated:
When [defendant is at the police department] he explains how it is that he and [M.M.] came together that night and he doesn't say that she was a prostituteà
Later, in his opening, the prosecutor reiterated the point about defendant's omission:
He did not say he picked her up to have seX with her. He did not say she was a prostitute.
Defense counsel objected to these comments and moved for a mistrial, but the trial judge denied the motion as well as the request for a curative instruction.
In his case-in-chief, during the direct examination of Sergeant DeLuccia, the prosecutor continued this ...