On appeal from Superior Court of New Jersey, Law Division, Union County, Ind. No. 01-02-0155.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2007
Amended - Before Judges Kestin, Weissbard and Lihotz.
Defendant, Darren Bradshaw, appeals from his conviction following a jury trial on three counts of a nine-count indictment charging the following offenses: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (counts one and six); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (counts two and seven); first-degree kidnapping, N.J.S.A. 2C:13-1b(1) (count three); second-degree robbery, N.J.S.A. 2C:15-1 (counts four and eight); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (counts five and nine).
Counts one through five were severed on defendant's motion and count nine was dismissed prior to trial. After a seven-day trial, defendant was convicted on counts six, seven and eight. With respect to both the aggravated sexual assault and the sexual assault convictions, the jury answered, "yes," in response to a special interrogatory that asked whether the offense was a "violent crime," thus rendering applicable the pre-2001 version of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State moved to have defendant sentenced on his conviction for first-degree aggravated sexual assault, to an extended term as a repeat violent offender, N.J.S.A. 2C:43-7.1b, or as a persistent offender, N.J.S.A. 2C:44-3a. Defendant did not oppose the motion for an extended term. The court granted the State's motion and sentenced defendant on his conviction for first- degree aggravated sexual assault to sixty years with a parole ineligibility term of twenty-five years. On counts seven and eight, second-degree sexual assault and second-degree robbery, the court imposed terms of ten years, to run concurrently with each other and concurrently with the sentence imposed on count six. Additionally, the judge ordered that defendant would be subject to the provisions of Megan's Law, requiring registration as a sex offender, N.J.S.A. 2C:7-2, and imposition of community supervision for life, N.J.S.A. 2C:43-6.4.
Defendant appeals, presenting the following arguments for our consideration:
THE TRIAL COURT ERRED IN PRECLUDING DEFENDANT FROM TESTIFYING ABOUT HIS ALIBI BECAUSE RULE 3:12 DOES NOT APPLY TO A DEFENDANT'S OWN ALIBI TESTIMONY.
EVEN IF RULE 3:12-2 IS APPLICABLE TO A DEFENDANT'S OWN ALIBI TESTIMONY, THE INTEREST OF JUSTICE REQUIRED THAT DEFENDANT BE PERMITTED TO PRESENT HIS ALIBI TESTIMONY.
THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY RELYING ON FACTS NOT PROVEN AT TRIAL AND ON VOUCHING FOR THE CREDIBILITY OF THE VICTIM. (Not Raised Below).
THE COURT ABUSED ITS DISCRETION IN IMPOSING A SIXTY-YEAR EXTENDED TERM WITH TWENTY-FIVE YEARS OF PAROLE INELIGIBILITY.
IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005). (Not Raised Below).
We agree with defendant's argument in Point III, requiring reversal and remand for a new trial. We also conclude that while R. 3:12 does apply to defendant's own testimony concerning his whereabouts at the time of the crime, the rule as so applied constitutes an unconstitutional infringement on a defendant's right to present a defense. As a result, we have no need to resolve defendant's sentencing contentions (Points IV and V).*fn1
Because the jury found defendant guilty, we set out the facts that would have supported such a verdict, largely as set forth in the State's brief. On the night of April 26, 2000, S.D., who is deaf, left her friend's house and was walking home along Eighth Street in Plainfield when she noticed a man on a bicycle behind her. The man, later identified as defendant, was peddling slowly and turning his head to look at S.D. Sensing that "something was wrong," S.D. picked up her pace.
Suddenly, defendant threw down his bicycle, and S.D. began to run. Defendant caught S.D. from behind, jumped on her back and pulled her down to the ground in a grassy area at the edge of the Plainfield High School soccer field. S.D. was momentarily able to get up, but defendant pushed her to the ground again. He held S.D.'s arm on the grass, and pinned her other arm behind her back so that she could not move. Defendant then punched her in the face. S.D. started to scream. S.D. read defendant's lips, and he told her to shut up and threatened to hit her in the face again. Defendant was "very strong" and had S.D. in a "chokehold," with his arm around her neck. Defendant reached inside S.D.'s pants pocket, and then checked the other pocket by feeling the outside of it. Defendant was unsuccessful in finding S.D.'s money, which she kept in her socks.
Defendant then pulled S.D.'s pants down to her thighs, removed his own underwear, and inserted his penis into her vagina. She tried to stop defendant, but could not. S.D. struggled with defendant but he was "very heavy" and it was difficult for her to move at all. S.D. has asthma, and during the struggle she had difficulty breathing. Defendant tried to kiss S.D. on the lips, but she turned her head and refused. Ten to fifteen minutes after he had begun the sexual assault, defendant got up, said, "I'm sorry," and left on his bicycle.
After defendant left, S.D. got up and "just ran" with her "pants still attached to [her] because [she] was so fearful, [and] was afraid." S.D. ran onto Arlington Avenue, knocked on the doors of two houses, and gestured to the people who answered to call the police. She was crying and used her hands in a praying motion. She put her hands to her face, as if holding a phone, and gestured a siren on ...