On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 03-10-2011.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Graves and Lihotz.
A jury convicted defendant Peter Sanchez of two counts of third-degree attempt to lure or entice a child into his motor vehicle in violation of N.J.S.A. 2C:13-6. Defendant was sentenced to two concurrent four-year prison terms. Appropriate penalties and assessments were also imposed. We affirm. On appeal, defendant presents the following arguments:
THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE THE ERRORS OF THE TRIAL COURT DENIED DEFENDANT HIS DUE PROCESS RIGHT TO RECEIVE A FAIR TRIAL (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, 9, 10) (PARTIALLY RAISED BELOW)[.]
(A) THE TRIAL COURT'S JURY INSTRUCTIONS WERE INADEQUATE, CONFUSING, ERRONEOUS AND MISLED THE JURY BY INCORRECTLY INSTRUCTING THE JURY AS FOLLOWS:
(1) BY FAILING TO INSTRUCT THE JURY THAT THE DEFENDANT'S "PURPOSE TO COMMIT A CRIMINAL OFFENSE" UNDER THE LURING STATUTE WAS LIMITED TO THE CHARGED OFFENSES,
(2) BY STATING THAT A PERSON UNDER 18 CANNOT CONSENT TO SEXUAL CONTACT, AND (3) BY IMPROPERLY EXCLUDING "LEWDNESS" AS A LESSER INCLUDED OFFENSE UNDER COUNT TWO WHICH, IF FOUND, WOULD REQUIRE AN ACQUITTAL SINCE IT IS NOT A "CRIMINAL OFFENSE," A REQUIRED ELEMENT FOR THE STATE TO PROVE UNDER THE LURING STATUTE N.J.S.A. 2C:13-6[.]
(B) REGARDLESS OF THE STRATEGY DECISIONS OF COUNSEL, THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF LEWDNESS, AND THAT IF DEFENDANT'S SOLE PURPOSE UNDER COUNT TWO WAS TO COMMIT AN ACT OF LEWDNESS THEN HE COULD ONLY BE CONVICTED OF LEWDNESS, WAS REVERSIBLE ERROR[.]
(C) THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER THE COUNTS OF THE INDICTMENT FOR TRIAL PURPOSES[.]
[D] THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR A MISTRIAL FOLLOWING THE ADMISSION OF TESTIMONY THAT DEFENDANT WAS "SEEING A PSYCHOLOGIST" SO THAT HE WOULDN'T ENGAGE IN THE CONDUCT OF TRYING TO GET GIRLS INTO HIS VAN AGAIN[.]
DEFENDANT, PETER SANCHEZ'S, CONVICTION MUST BE REVERSED SINCE HE WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT DENIED DEFENDANT'S MOTION TO SUPPRESS HIS CONFESSION[.]
THE PROSECUTOR'S ACTIONS THROUGHOUT THE TRIAL CONSTITUTED PROSECUTORIAL MISCONDUCT INCLUDING, USING INADMISSIBLE EVIDENCE REGARDING DEFENDANT SEEING A PSYCHOLOGIST AND MIS-CHARACTERIZING SAME BEFORE THE COURT AND INDIRECTLY COMMENTING ON DEFENDANT'S FAILURE TO TESTIFY[.]
THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO EITHER MOTION FOR CHANGE OF VENUE OR OBJECT TO THOSE ISSUES NOTED IN POINTS I, II & III[.]
THE SENTENCE IMPOSED BY THE TRIAL COURT VIOLATES DEFENDANT'S RIGHT TO A JURY TRIAL UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION[.]
DEFENDANT'S SENTENCE IS EXCESSIVE SINCE THE SENTENCING COURT FAILED TO APPROPRIATELY CONSIDER MITIGATING FACTORS WHEN IMPOSING SENTENCE[.]
At approximately 4:00 p.m. on February 24, 2003, two fifteen-year-old ninth-grade girls, C.H. and T.B., were walking on Main Street in Bradley Beach when they heard a man in a red van "calling out" trying to get their attention. The girls did not recognize the man who was operating the red van, and they continued walking and talking. As the girls passed the parked van, the driver began driving at the same pace the girls were walking. According to C.H., the driver, who was subsequently identified as defendant, kept calling: "Girls, come here. I need you to come here. I need to talk to you . . . come here, come here." C.H. testified defendant was "talking loud," and he "sounded very . . . anxious." C.H. testified defendant "just said get in. Come on, get in," but the girls became scared and ran to T.B.'s father's nearby auto shop. When C.H. was asked if the person driving the red van was in the courtroom, defendant's attorney stipulated defendant was the driver of the red van.
The other fifteen-year-old girl, T.B., provided similar testimony.
When the girls arrived at the auto body shop, T.B.'s mother was present and she had the girls get in her car to take them home. As T.B.'s mother was driving the girls home, T.B. saw defendant's red van, and the mother began following the van. While both vehicles were stopped at a traffic light, defendant got out of his van and confronted T.B.'s mother. T.B. testified defendant "was saying like he needed to help us or something and there were kids. And my mom just kept like yelling and telling him that she was going to the police. And then the light turned, so he got in his car." Defendant, fearful the mother would follow through with her threat, went to the Bradley Beach Police Station to make a statement. Defendant indicated to the Bradley Beach Police that he was only trying to protect the girls from some boys in the area, who were "going to harass [the girls] and do whatever."
In a subsequent written statement to the police on March 20, 2003, defendant indicated that he told the girls "to come closer, and I motioned with my hand because the[y] could not hear me." Defendant also provided the following information:
Q: Peter drawing your attention to Monday night, February 24, 200[3,] did you have an opportunity to be in this work van on Main Street in Bradley Beach?
Q: And while operating your work van on Main Street in Bradley Beach did you observe two teenage girls walking ...