On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-10-0976.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2007
Before Judges Parker, R. B. Coleman and Lyons.
Defendant Javier Ramirez appeals from his conviction on criminal sexual contact and attempted sexual assault charges and from the sentence imposed.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On May 7, 2003, defendant, then thirty years old, attempted to rape his eighteen-year-old victim. Defendant became a friend of the victim's family when she was sixteen years old. On the day in question, the victim resided with her mother. While she was home with her mother, defendant called the victim's house to speak to her mother. When the victim informed him that she was sleeping, he invited her out to smoke a "blunt" with him.
Defendant then picked the victim up, and after a few errands, he parked in front of his house and "roll[ed] the blunt," which they smoked on the way to a bar. At the bar, the victim and defendant had two drinks each. On their way to a second bar at about 1:00 a.m., defendant parked the car. While it was parked, he leaned into the victim and tried to kiss her. She pushed him away and informed him that she was not interested in an intimate relationship with him. He then "grabbed [her] head" and "pulled [her] towards him and started kissing [her] really rough." The victim then went on to describe the attack:
And then he tried to rip my shirt off and tried to kiss my breasts and I kept pushing him to stop, but he was so heavy on me.
So, as he was still holding me I had sweatpants on. So, he just pulled them right down and he jumped on top of me and he put my seat down all the way down and started kissing me again.
He tried to touch me down there and I told him to stop . . . .
. . . [H]e looked at me really mad and he's like I could really kill you right now. So, he pushed his whole body -- weight on me and pulled his pants down and just kept grabbing me and I started -- I seen a car coming.
So, I yelled the loudest I could so somebody would hear me. So, he punched me in my mouth and covered my mouth and kept caressing me really hard and he kept holding my head really, really hard and trying to kiss me again.
And I [told] him . . . I kept telling him to stop please and he's like no, I'm going to get it this time. I've been waiting two years for it.
So, he told me like he could really kill me I got really scared. So, I tried to talk . . . him out of it. I was like please, you know, if anything I will go down on you so you won't have to rape me and he's like oh, maybe. I'll think about it.
So, he got back down on his seat and I started jerking him off and I -- you know, I tried to go down on him, but I got asthma and -- when I get aggravated and I am really scared. I got a really bad asthma attack.
Well, I was jerking him off. Okay? And I couldn't breathe. I told him to give me a minute because I -- I couldn't breathe and I was jerking him off and he kept telling me to hurry up because he ain't have time -- he didn't want to wait.
So, I guess he felt kind of good when I was jerking him off and he -- he actually let go of my head and he put his head back and closed his eyes and then I just put my head down to think what I was going to do.
. . . I looked at the door and . . . the lock was easy to pull out. So, I just opened it gently so he wouldn't hear and I grabbed my stuff.
I opened the door and I pulled my pants up like as soon as I walked out the door and I started running down the street running towards . . . Zaina's. It was like maybe two blocks away.
So I seen a cab coming up the street and I actually jumped on top of the taxi so he would stop and he told me what happened and I told him that somebody tried to rape me.
Victor Lopez, the cab driver who picked the victim up after the attempted rape, testified that as the victim approached the car she was "like, afraid and desperate." After she told him that someone had tried to rape her, he told her to get into the cab and took her to a place where she could call the police. Once she was in the cab, he had his cab company dispatcher call the police. He corroborated the victim's testimony that the police did not arrive at that location and after fifteen minutes he took her to her friend at another cab company and they called the police from there. He never spoke to the police at that time.
Officer Victor Gonzalez responded when the call came in to the Paterson Police Department. He testified that the victim appeared upset and was crying. According to the police testimony, the victim did not have any visible injuries. The victim said she did not seek medical treatment after the attempted rape because she only had a cut on her lip and did not feel like medical treatment was appropriate.
After interviewing the victim, the police attempted to locate defendant. Since the victim could not remember defendant's exact address, she accompanied the police to defendant's house. The police proceeded to knock forcefully on the door for about ten minutes, but no one answered. Then they attempted to find defendant's vehicle, which was located a few blocks ...