On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 00-08-1690.
Before Judges Pressler, Parker and R.B. Coleman.
The opinion of the court was delivered by: Pressler, P.J.A.D. (retired and temporarily assigned on recall)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a trial by jury, defendant Morillo F. Marinez was convicted of a variety of related charges of aggravated sexual assault and second-degree kidnapping, all arising from a single episode. We affirm the guilty verdicts but modify the base term imposed on the aggravated sexual assault charge because of our consideration of the effect of the real-time consequences of the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2. We also remand for reconsideration as to whether the sentences imposed should all run concurrently.
Defendant was charged in a thirteen-count indictment with first-degree kidnapping, N.J.S.A. 2C:13-1b (Count One); three counts of first-degree aggravated sexual assault during the commission of kidnapping, N.J.S.A. 2C:14-2a(3), each count charging a different form of sexual penetration (Counts Two, Three and Four); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(5), each count charging a form of sexual penetration charged in the assault-during-kidnapping charges (Counts Five, Six and Seven); and six third-degree counts of aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, charging conduct committed during the charged aggravated sexual assaults. The jury found defendant guilty of all charges except first-degree kidnapping, finding him instead guilty of second degree kidnapping. The judge merged all thirteen convictions into three, that is, the conviction of second-degree kidnapping, one conviction of first-degree aggravated sexual assault, and one conviction of aggravated sexual contact. The judge then sentenced defendant on the first-degree conviction to an eighteen-year prison term subject to an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), a consecutive five-year term on the second-degree kidnapping conviction, and a concurrent five-year term on the third-degree sexual contact conviction. Defendant appeals, and we affirm the finding of guilt but, in the exercise of our original jurisdiction pursuant to R. 2:10-5, we modify the sentence imposed on the first-degree conviction and remand for reconsideration of the consecutive sentencing.
In challenging the judgment of conviction, defendant raises the following issues:
I. THE PROSECUTOR'S COMMENTS DURING HER OPENING DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S REQUEST FOR A MISTRIAL.
III. DEFENDANT'S SENTENCE UNDER N.E.R.A. WAS IMPROPER.
IV. THE JURY VERDICT ON THE KIDNAPPING CHARGE WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below)
V. THE TRIAL COURT ERRED BY SENTENCING DEFENDANT TO A CONSECUTIVE TERM ON THE COUNT FIVE AGGRAVATED SEXUAL ASSAULT CONVICTION. VI. DEFENDANT'S SENTENCE WAS CRUEL AND UNUSUAL PUNISHMENT.
Having considered these issues in the light of the record, the applicable law, and the arguments of counsel, we are satisfied that defendant's challenges to the jury's verdict are without sufficient merit to warrant disposition by written opinion. R. 2:11-3(e)(2). We add, however, the following comments.
The complaining witness was a new employee of a bar in the Bronx managed by defendant's brother and at which defendant worked as a disc jockey. The story she told was that defendant had offered to drive her home after her shift and she accepted his offer. There was another man in the car when she got in, co-defendant Forti, who has never been located or prosecuted. Instead of driving her home, defendant drove across the George Washington Bridge to a motel. He and Forti then forced her into a motel room, and both of them sexually assaulted her, Forti apparently being the instigator and prime mover. They then ...