On appeal from the Superior Court of New Jersey, Law Division, Union County, 99-11-1594.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Lintner, Parrillo and Sabatino.
A Union County Grand Jury returned Indictment No. 99-11-1594 arising from three separate criminal incidents occurring on August 24, 28, and 30, 1998. Defendant, Oseas Pons, was charged with seventeen counts, including three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(5) (Counts One, Four, and Ten), three counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Counts Two, Six, and Twelve), three counts of first-degree kidnapping, N.J.S.A. 2C:13-1b (Counts Three, Seven, and Thirteen), two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4) (Counts Five and Eleven), two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Counts Eight and Fourteen), two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Counts Nine and Fifteen), one count of first-degree robbery, N.J.S.A. 2C:15-1 (Count Sixteen), and one count of second-degree robbery, N.J.S.A. 2C:15-1 (Count Seventeen). Emilio Giron*fn1 and Eric Quintanilla*fn2 were named as co-defendants in the indictment.
Following a six-day jury trial, defendant was found guilty of Counts One through Thirteen, and was acquitted on Counts Fourteen through Seventeen. Defendant was sentenced to an aggregate term of thirty-five years of incarceration with an eighty-five percent parole disqualifier (29.75 years) pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn3
Defendant appeals and we affirm.
Between 1:00 and 2:00 a.m. on August 24, 1998, D.S., thirty-two years old at the time of trial, was on her way home after a day of "hustling" on the streets of Plainfield, when two Hispanic males in a black car pulled up and asked if she knew where they could get high. There was a white dog in the vehicle. D.S. indicated she knew of a house the men could use and offered to take them there. D.S. got into the car. When they drove past the house, D.S. asked why and then requested that she be let out of the car. The smaller of the two men, later identified as Quintanilla, turned to D.S. and said, "shut up, bitch." D.S. grabbed the steering wheel in an unsuccessful attempt to cause an accident to draw attention to the vehicle. The car was driven to a dark and secluded area.
D.S. offered the men twenty-two dollars to let her go but the men just spoke to each other in Spanish. After pulling off D.S.'s clothing, the men forced her to lie in the passenger-side seat with her face down. The larger of the two men, later identified by D.S. as defendant, held her down, "choking [her]," as the smaller man vaginally penetrated her. The men then switched positions and defendant vaginally penetrated her. The larger man attempted to force D.S. to perform fellatio, however, she was able to turn her head. The attack lasted for approximately one hour during which time each man had intercourse with D.S. two times. The first time, they used condoms, while the second time at least one ejaculated in her.
D.S. eventually escaped by running from the car, nude, to some nearby homes where she began banging on doors and windows yelling "rape." The men tried to grab her, but she ran across the street and continued to bang on doors and yell "rape."
Officer Richard Parello of the Plainfield Police Department was on patrol and responded to Leland Avenue where he observed a nude, hysterical, and crying woman standing in front of 78 Leland Avenue. D.S.*fn4 told Parello that she had just been vaginally and anally raped by two Hispanic males in a black sports car with tinted windows. Parello transported D.S. to a hospital where a sexual assault evidence collection kit was completed, the results of which were turned over to the Plainfield Police Department.*fn5 D.S. signed herself into the psychiatric unit of the hospital and remained there for three weeks following the attack.*fn6 On September 22, 1998, D.S. identified defendant and Quintanilla as her assailants in separate photo arrays. She also made an in-court identification of defendant as one of her attackers.
Around 1:00 a.m. on August 28, 1998, S.J., a twenty-eight year old woman, walked to the corner of Plainfield Avenue and West Front Street in Plainfield to use a phone booth located near a gas station. When S.J. reached the phone booth, a white two-door truck with tinted windows pulled into the gas station. A man got out of the truck and asked S.J. where Grant Avenue was located. S.J. pointed in the direction of Grant Avenue and then turned to place money in the payphone. The man then put a box-cutter to her neck and told her to get into the truck. As she walked to the truck, S.J. observed three other men inside the truck. S.J. sat in the middle of the back seat and, as the truck drove off, she began asking the men questions about themselves in an attempt to show she was not scared. The men gave their names as Mario, Jose, Joseph, and Edward and indicated they were from Mexico.*fn7
The truck traveled on Leland Avenue toward the east end of Plainfield, eventually stopping for one of the occupants to get out and urinate on a side street. At that point, one of the men asked S.J. if he could pay her for sex; she responded that she did not sell her body for sex. That man got back in and then one of the men told S.J. to perform fellatio on one of the other men while he had intercourse with her. The men started taking her clothing off and, with the box-cutter to her neck, the men pulled off her pants, shirt, and bra. In the backseat of the truck, the men forced her to perform oral sex on them while she was being vaginally and anally penetrated from behind by other men in the group. All four anally penetrated her, and three of them vaginally penetrated her. The men did not wear condoms.
When the men were finished attacking S.J., they returned her clothing to her. They eventually stopped the truck and one of the men took S.J. out of the truck, covered her eyes, walked her down the street, left her, and returned to the truck. The attack lasted approximately two hours. S.J. walked for approximately a half hour to the nearest phone booth and called the police. The police arrived and S.J. was transported to the hospital where a sexual assault evidence collection kit was completed.
S.J. told police that the attackers used the names Mario, Jose, Joseph, and Edward. She described Mario as 5'6" tall, having a beer-belly and a small curly afro, weighing approximately two-hundred twenty pounds, and in his early 30s. S.J. described Joseph as fat, 5'8" or taller, with curly hair, and in his late-20s to early-30s. She described Jose as approximately 5'7" tall, slim, with a missing tooth on the left side of his mouth, and in his late-20s. She described Edward as short, with long straight hair and a mustache, and being 25 years old.
S.J. believed Edward and Jose were the assailants that held box-cutters during the attack. On September 21, 1998, after viewing photo arrays, S.J. identified defendant as the assailant that held the box cutter to her throat at the payphone, anally penetrated her, and took her purse. She identified co-defendant Giron as the man who demanded that she perform oral sex on all of the men. S.J. could not make an in-court identification of defendant.
On August 30, 1998, at 3:00 a.m., J.B. was walking along East Front Street in Plainfield when a white truck pulled up next to her. J.B. believed that she was probably under the influence of drugs and alcohol on the morning of August 30. She also believed she knew one of the men in the truck, whom she identified as Mario, possibly from going to school with him.
J.B. asked Mario for a cigarette and a ride. Mario said he did not have a cigarette, but that he was going to the gas station to get some. Mario offered J.B. a ride and she got in the truck. At that point, J.B. realized there were a total of five Hispanic men in the truck.
On the way to the gas station, one of the men put a knife to J.B.'s neck, made her lie on the floor in the back of the vehicle, and said "don't move or say nothing or I will kill you." The truck traveled to a Shell gas station and stopped and one of the occupants briefly exited the vehicle. The Shell security camera captured a man, later identified by police as co-defendant Giron, going into the gas station, and purchasing condoms at 2:30 a.m. on August 30. Leaving the gas station, the truck traveled down Leland Avenue for approximately five to seven minutes and then came to a stop.
Inside the truck, the men started feeling J.B. and wanted her to have intercourse and oral sex with them. The men told J.B. to take her clothing off in the back seat of the truck and she complied because they threatened to kill her. All five of the men forced her to have intercourse with them and some forced her to perform oral sex. Some of the men used condoms during the attack. A knife was held to J.B.'s neck during a portion of the attack, which lasted approximately one hour.
When the men were finished with J.B., they left her on the street wearing only a t-shirt. She left a bag containing a phone, camera, and video game in the truck. She found her shorts on the street, walked back to the Shell station and called the police. The police found J.B. at the payphone, distraught and holding a stick for protection. They transported her to the hospital where a sexual assault evidence collection kit was completed.
On September 15, 1998, J.B. saw the white truck she was raped in driving on the street in Plainfield. She wrote down the license plate number and gave it to the police. The police investigation led them to co-defendant Giron, who had previously been involved in a traffic infraction with a white Chevy Blazer. Police eventually arrested Giron after J.B. identified him in a photo array as one of her attackers. At Giron's residence, the police found the white Chevy Blazer with the license number provided by J.B., which was later identified by her as the truck used in the assault.
J.B. described Mario as a large man weighing approximately two-hundred thirty pounds with dark hair and a mustache. She described the man that held the knife to her throat as in his late 40s or early 50s, and a third man as being large like Mario. She was unable to identify defendant in court as one of her assailants.
Quintanilla was arrested and told police, with regard to the attack on S.J., that Giron, Giron's brother Carlos, and defendant were the other men involved in the attack. He told police that Giron, Carlos, a man named Luis, and defendant were involved in the attack on J.B. Quintanilla identified the vehicle used in the ...