On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 03-02-0156.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lintner and Gilroy.*fn1
A Cumberland County Grand Jury returned a multi-count indictment charging defendant, Keon Milledge, and three co-defendants, Lamar Milbourne, Michael Hinson, and Davon Nichols with various offenses against two victims, K.M. and C.P. Milledge was transferred to the Criminal Part, N.J.S.A. 2A:4A-26, without objection, to be tried as an adult. Following a jury trial, defendant was convicted of two counts of first-degree aggravated sexual assault of K.M., N.J.S.A. 2C:14-2a, along with first-degree kidnapping, N.J.S.A. 2C:13-1b, third-degree criminal restraint, N.J.S.A. 2C:13-2a, second-degree robbery, N.J.S.A. 2C:15-1a, and simple assault, N.J.S.A. 2C:12-1a, of both K.M. and C.P. He was also found guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1a(1), and fourth-degree aggravated assault upon Sergeant Carl Crispin, N.J.S.A. 2C:12-1b(5)(a). Defendant was acquitted of second-degree aggravated assault of K.M. and C.P., N.J.S.A. 2C:12-1b(1), third-degree terrorist threats of both victims, N.J.S.A. 2C:12-3b, and possession of a baseball bat for an unlawful purpose, N.J.S.A. 2C:39-4d.
The judge denied defendant's motion for new trial. Following appropriate mergers, the judge imposed an aggregate sentence of thirty-four years with 85% parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, consisting of two twenty-year terms with 85% parole ineligibility on the kidnapping convictions, concurrent seventeen-year terms with 85% parole ineligibility on the merged aggravated sexual assault convictions, seven-year terms with 85% parole ineligibility on each of the two robbery convictions to be served consecutively with each other and the terms imposed on the aggravated sexual assault and kidnapping convictions. Concurrent six-month terms were imposed on the simple assault convictions and a concurrent eighteen-month term was imposed on the aggravated assault conviction. Included in the appropriate fines and penalties were three $800 penalties to be deposited in the Sexual Assault Nurse Examiner (SANE) Program Fund, N.J.S.A. 2C:43-3.6. We affirm the convictions, but remand for resentencing on the merged aggravated sexual assault convictions.
The State established the following facts at trial. On September 19, 2002, at approximately 9:30 p.m., K.M. and C.P. were sitting in K.M.'s car. The four perpetrators drove up and approached K.M.'s car. Claiming to be a policeman, Milbourne, who was wearing an orange T-shirt, opened K.M.'s door, grabbed a cell phone from K.M. and passed it to defendant who was wearing an Old Navy T-shirt. Milbourne then punched C.P. in the face and pulled K.M out of the car. Milbourne placed K.M. face down against the trunk of her car, and took her keys and wallet, which he handed to defendant. Milbourne also took K.M.'s watch off of her wrist.
Milbourne lifted K.M.'s T-shirt and began touching her breasts. He ordered K.M. to spread her legs. When she resisted he punched her in the ribs. Defendant stood nearby. One of the other perpetrators, one with big hands, also punched her in the ribs. Milbourne pried K.M.'s legs apart and pulled down her panties. He then digitally penetrated her. Defendant then took his turn putting his fingers into her vagina, calling her a "white bitch" and making other derogatory comments. C.P. overheard defendant's comments and believed he recognized defendant's voice because he had known him since elementary school and had spoken to him three or four days before the incident.
While Milbourne was holding K.M.'s hair, defendant grabbed her by the ankles, pulled her to the ground, dragged her away from the car, and forced her to have intercourse with him. At some point, K.M. screamed, "God help me," to which defendant replied, "God can't help you now."
Meanwhile, two other members of the gang, Nichols and Hinson, prevented C.P. from getting out of the car. They each went to the side of the car from time to time and hit C.P. in the face. C.P. recognized Hinson from high school and at one point said, "you," to which Hinson paused and then asked C.P. if he knew him. C.P. responded "no." Hinson left and returned with a baseball bat, which he used to strike C.P.'s hands after ordering C.P. to place his hands on the dashboard. Hinson took C.P.'s wallet containing thirty-one dollars and his cigarettes and lighter.
After the forced intercourse, K.M. attempted to feign unconsciousness. Defendant grabbed her, however, and started punching her. When she faked waking up, he told her if she screamed he would kill her. She was then forced onto her knees and was made to perform oral sex on the four perpetrators. Defendant told her if she bit him, he would kill her. At one point, Hinson placed a baseball bat against C.P.'s face turning C.P.'s head and forcing him to watch K.M. perform forced oral sex on defendant and others. He heard K.M. begging them to stop, however, they just responded by smacking her and yelling obscenities. Eventually, he saw K.M. go limp or unconscious.
As the perpetrators had their way with K.M., they took turns monitoring C.P. to be sure he did not leave his car. When it was defendant's turn to restrain C.P., he hit C.P. in the face, chest, and arms. Defendant eventually pulled C.P. from the car and continued to hit him. The rest of the gang returned and Hinson hit C.P. across the legs with a baseball bat causing him to fall to the ground, whereupon they all stomped and kicked him while he was face down on the ground.
Toward the end of the attack, after K.M. was forced to have oral sex with all the perpetrators, defendant stood K.M. up and told her to walk twenty paces into the woods. As she turned around, Milbourne said, "No, she's not doing that. She's not running away." She was then left with the perpetrator who was not wearing a T-shirt who pushed her to the ground and asked for her name and address. K.M. responded, supplying a fake name and address. The perpetrator told her, "We'll come get you" and then walked away. As K.M. lay on the ground, an unidentified perpetrator came up behind her and punched her in the face. According to K.M., the attack on her and C.P. lasted for "probably a half hour, but it felt like it lasted forever."
After the gang left, K.M. went back to the car where she found C.P., bleeding from the face. C.P. described them both as being "pretty beat up." Wearing just her right shoe and a T-shirt, K.M. found her other shoe, grabbed a spare key ...