On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 01-07-0898-I.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2005
Before Judges Wecker, Fuentes and Graves.
On or about September 17, 2000, a Grand Jury indicted defendant Aquil Busch, a.k.a. Jeffrey Drury, on thirteen counts. The case was tried over nine days between May 13, 2003, and June 3, 2003.
The jury found defendant guilty of the following: Count 3, first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; Count 4, third-degree terroristic threats, N.J.S.A. 2C:12-3; Counts 5, 6, 7, and 8, first-degree carjacking, N.J.S.A. 2C:15-2; Count 9, third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a; Counts 10, 11, 12, and 13, first-degree kidnapping, N.J.S.A. 2C:13-1b.*fn1
Defendant received twenty years on Count 3, first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; five years on Count 4, third-degree terroristic threats, N.J.S.A. 2C:12-3, concurrent to Count 3; twenty-five years on Counts 5, 6, 7, and 8, first-degree carjacking, N.J.S.A. 2C:15-2, concurrent to each other and consecutive to Counts 3 and 4; and twenty-five years on Counts 10, 11, 12, and 13, first-degree kidnapping, N.J.S.A. 2C:13-1b, concurrent to each other and to Counts 5 through 8, and consecutive to Counts 3 and 4. Count 9, third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a, was merged into Count 5.
The trial judge imposed an eighty-five percent parole ineligibility term (seventeen years) on Count 3, aggravated sexual assault, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 ("NERA"), and a ten-year period of parole ineligibility on each of Counts 5 through 8 and 10 through 13. Defendant's aggregate sentence therefore was forty-five years, the first twenty-seven without parole eligibility.
On appeal, defendant presents these arguments:
THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY QUESTIONING DEFENDANT ON HIS POST-ARREST SILENCE. (Not Raised Below).
A JUDGMENT OF ACQUITTAL MUST BE ENTERED ON COUNT THREE, AGGRAVATED SEXUAL ASSAULT, AS THE STATE FAILED TO PROVE THIS OFFENSE BEYOND A REASONABLE DOUBT. (Partially Raised Below).
THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE INTRODUCTION OF THE DEFENDANT'S REMOTE CONVICTION.
IMPOSITION OF PRISION TERMS ABOVE THE PRESUMPTIVE WHICH INCLUDE PAROLE DISQUALIFIERS VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below).
THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. 104 (1986).
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A 45-YEAR TERM WITH 27 YEARS OF PAROLE INELIGIBILITY BECAUSE AN ANALYSIS OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
On September 16, 2000, at about 11:45 p.m., Jane Jones and three of her high school friends, Alex Armour, Bob Brown and Mary Morgan,*fn2 drove to Trenton, New Jersey, in search of marijuana to purchase. Sometime after midnight, they noticed a man lying on the side of the street, and when they drove near him, they heard him say "weed" several times. Intending to make sure the man was not dead or in need of help, they slowed their automobile. When the driver, Brown, stopped the car, a man, later identified as defendant, approached, opened an unlocked rear door and entered the car ...