On appeal from Superior Court of New Jersey, Law Division, Bergen County, 00-08-1621-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges Weissbard and Gilroy.
Defendant Giovanni Sotomayor appeals from his conviction following a jury trial on eleven counts of a twelve count indictment charging the following offenses: first-degree aggravated sexual assault during the course of a burglary N.J.S.A. 2C:14-2a(3) (Count One); first-degree aggravated sexual assault while armed with a knife, N.J.S.A. 2C:14-2a(4) (Count Two); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Three); two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Counts Four and Five); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Six); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Seven); second-degree burglary, N.J.S.A. 2C:18-2 (Count Eight); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3a (Counts Nine and Ten); third degree criminal restraint N.J.S.A. 2C:13-2a (Count Eleven).
Defendant was acquitted of Count Twelve charging third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.
On October 31, 2003, defendant's motion for a new trial was denied. That same day, the State's motion for an extended term under N.J.S.A. 2C:43-7.1b (the Three Strikes Law) was granted. The judge merged Counts Two, Three, Four, Five, Six, Seven, and Eight with Count One. On Count One, defendant was sentenced to fifty years imprisonment, 85 percent of the first twenty years of that sentence without parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a) and five years community supervision. On counts Ten and Eleven, defendant was sentenced to five year terms of imprisonment. All sentences were made concurrent to each other, so that defendant's aggregate term was fifty years imprisonment with seventeen years parole ineligibility. This sentence was made consecutive to a sentence defendant was already serving.
In addition, defendant was required to register as a sex offender, N.J.S.A. 2C:7-2a, to provide a DNA sample and to submit to community supervision for life, N.J.S.A. 2C:43-6.4a. Appropriate penalties and assessments were also imposed.
On appeal defendant presents the following arguments:
POINT I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN IT RULED THAT DEFENSE COUNSEL COULD NOT ASK [D. P.] ABOUT CHARGES AGAINST HER THAT HAD BEEN DISMISSED PRIOR TO THE TRIAL UNLESS COUNSEL COULD ESTABLISH THAT THEIR DISMISSAL WAS THE RESULT OF HER AGREEMENT TO TESTIFY IN THIS CASE.
POINT II: THE TRIAL COURT ERRED IN PROHIBITING DEFENDANT'S WIFE FROM TESTIFYING THAT HE WAS INTOXICATED WHEN HE RETURNED HOME THAT NIGHT BECAUSE THAT TESTIMONY WAS NOT INTENDED TO SUPPORT AN INTOXICATION DEFENSE, BUT TO ESTABLISH THAT HE DID NOT COMMIT THE CRIME.
POINT III: THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR VOUCHED FOR THE CREDIBILITY OF THE VICTIM AND THE DETECTIVE DURING HER SUMMATION. (Not Raised Below)
We find merit in defendant's first and second points, requiring reversal and a new trial.
In the early morning hours of January 20, 2000, a man entered*fn1 the second floor apartment of D.P. and, according to her testimony, brutally assaulted her. D.P. lived in the apartment with her father and infant son. Her father was away at the time but her son was asleep. D.P. was asleep on the living room couch when the intruder began to kiss her cheek. She awoke but a blanket covered her eyes. The man pressed a sharp object to D.P.'s side. After D.P. requested and was allowed to use the bathroom, the man forced D.P. to perform fellatio on him, performed cunnilingus on her and vaginally penetrated her. He also masturbated himself and forced D.P. to masturbate him.
Although D.P. could not see the victim's face, she saw an elaborate "S" tattooed on his chest and a series of letters tattooed on his stomach. The man spoke of a number of personal things to D.P. that suggested he knew her, such as the whereabouts of her two friends, Danielle and Kelly, who had been at the apartment until about 2:00 a.m. that morning. He also mentioned a boyfriend she ...