On appeal from Superior Court of New Jersey, Law Division, Passaic County, 03-10-0936-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester, Sabatino and Messano.
Tried to a jury, defendant Anthony Vito Carlino was convicted of the second-degree crime of attempted kidnapping, contrary to N.J.S.A. 2C:13-1(b)(1); luring or enticing a child, a third-degree offense, contrary to N.J.S.A. 2C:13-6; and the third-degree offense of attempted endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) and 2C:5-1(a)(3).
The charges related to an incident on May 3, 2003, sometime between 7 and 8 a.m. in the City of Paterson. Ten-year-old Q.C., a fifth-grade student, was walking up Hamilton Avenue toward her elementary school located at the intersection of Carroll Street. Before she arrived at the school, she sat on a step to tie her shoe. She testified that a burgundy or red van with tinted windows pulled up ahead of her, then backed up. The male driver lowered the passenger side window, called out to ask her whether she wanted to go for a ride, and said "something about candy." Q.C. described the man as looking "scary" with a scar on his nose. She said he got out of the van and stood looking at her. Q.C. said she was "real scared" and said "I have to ask my mom." She ran to the corner of Hamilton and Carroll, looked back and saw the van backing up toward her. Starting to cry, she ran into the school and told Algenis Dox, the security guard at the front desk, that "some man's trying to pick me up."
Dox testified that Q.C. was crying and scared and told him that a white man in a red or burgundy van offered her a piece of candy and told her to come inside the van with him. Dox went outside and saw nothing, but as he walked to the school's main entrance, he saw a burgundy van at the intersection of Carroll and Broadway. The van was stopped and remained so for about a minute as the driver looked toward the school and drove off. Dox saw the van circle the block to the stop sign back to the corner of Hamilton and Carroll where the van stopped again for about a minute and a half with the driver looking toward the school. Dox stood there and saw the van come around the corner again. This time he got a good look at the driver's face through the front untinted window. Dox saw two Paterson patrol cars coming toward the school and flagged them down. He told the officers what Q.C. told him and described the van. After the patrol unit radioed this information, Officer Uri Polanco stopped the van about three blocks from the school. The patrol unit arrived with Dox, who identified the defendant as the same man he had seen in the van by the school. Defendant was brought to the school and was identified by Q.C. as the man in the van. He was then placed in custody and taken to Paterson police headquarters.
Detective Sergeant James Beatrice of the Passaic County Prosecutor's Office Child Abuse Special Victims Unit met with defendant and advised him of his Miranda*fn1 warnings. Defendant signed a waiver form and agreed to make statement. He told Detective Beatrice that he had gone to a concert in Morristown the night before and had left about 3 a.m. to return to his home in Valley Stream, New York. He said that he was tired and pulled over at about 3:30 or 4 a.m. to sleep. When he woke up about 7 or 7:30 a.m., he drove around looking for someone to give him directions to get on Route 80. He said he was unfamiliar with the area and did not know that he was in Paterson until he was arrested. Defendant also told Beatrice that he had had laser eye surgery and could not see things far away. He explained that he saw a person he believed to be a woman sitting on the sidewalk and pulled over to ask directions. At that time he realized it was a little girl. He said when he asked her for directions, she ran away.
Detective Beatrice told defendant that the girl reported that he had asked her if she wanted a ride, offered her candy, and got out of the van. Defendant denied saying or doing any such things. He said that the van was registered in North Carolina and used by him in his job of repossessing motor vehicles. He said that inside were a blanket, pillow, pad and camera. When Detective Beatrice asked if he could search the van, the defendant asked why. Beatrice then asked if there was anything in the van that he did not want the detective to see.
Defendant said, "It's not like I have rope or tape or anything in there."
On May 4, 2003, Detective Maura Papagni of the Child Abuse Unit along with other detectives executed a search warrant on the 1996 Burgundy Ford Econoline Van. Detective Papagni testified that found inside defendant's van were breath mints, two bottles of Vaseline lotion, three condoms, an open condom wrapper, a pillow, sheets, pillow case, blanket, a roll of masking tape, and white twine-style rope. Over defense objection, these items were entered into evidence along with a photograph depicting their location in the van.
Defendant testified in his own defense, repeating the version he told Detective Beatrice, including his denial that he offered Q.C. candy or tried to get her into the van to abduct her. Following the jury verdict, on February 18, 2005, defendant was sentenced by Judge Ronald G. Marmo to seven years with eighty-five percent parole ineligibility under the No Early Release Act (NERA) in addition to three years of parole supervision upon release plus mandatory fees and fines.
On appeal defendant makes the following arguments:
POINT I -- DEFENDANT ANTHONY CARLINO WAS DENIED HIS UNITED STATES CONSTITUTIONAL RIGHT AND NEW JERSEY STATE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO DUE PROCESS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ARTICLE 8, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION DUE TO THE NUMEROUS PRETRIAL, TRIAL, AND POST-TRIAL ERRORS; A PRESUMPTION OF PREJUDICE EXISTS OR, AT THE VERY LEAST, A REASONABLE PROBABILITY EXISTS ...