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State v. Milbourne

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 14, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAMAR MILBOURNE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 03-02-0156.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 26, 2007

Before Judges Lintner, Sabatino and Alvarez.

A Cumberland County Grand Jury returned a multi-count indictment charging defendant, Lamar Milbourne, and three co-defendants, Keon Milledge, Michael Hinson, and Davon Nichols with various offenses against two victims, K.M. and C.P. Following a jury trial, defendant was convicted of: first-degree aggravated sexual assault of K.M., N.J.S.A. 2C:14-2a; first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree aggravated assault as a lesser-included offense, N.J.S.A. 2C:12-16; third-degree criminal restraint, N.J.S.A. 2C:13-2a; possession of a weapon, a baseball bat, for an unlawful purpose, N.J.S.A. 2C:39-4d; second-degree robbery N.J.S.A. 2C:15-1a; second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1a(1); and disorderly persons simple assault, N.J.S.A. 2C:12-1a, as a lesser-included offense of third-degree aggravated assault. Defendant was acquitted of second-degree aggravated assault of K.M. and C.P., N.J.S.A. 2C:12-1b(1) and third-degree terrorist threats of both victims, N.J.S.A. 2C:12-3b.

The judge denied defendant's motion for new trial and judgment notwithstanding the verdict on the kidnapping convictions. Following appropriate mergers, the judge imposed an aggregate sentence of forty years with 85% parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The sentence consisted of two concurrent twenty-year terms with 85% parole ineligibility on the kidnapping convictions; concurrent seventeen-year terms with 85% parole ineligibility on the merged aggravated sexual assault conviction; eight-year terms with 85% parole ineligibility on each of two of the robbery convictions, to be served consecutively with each other and the terms imposed on the aggravated sexual assault and kidnapping convictions; and an eight-year concurrent term on the conspiracy conviction. A four-year term was imposed on the third-degree assault conviction, to be served consecutively with the kidnapping and aggravated sexual assault convictions, and a concurrent six-month term was imposed on the simple assault conviction.

Included with the imposition of appropriate fines and penalties were three $800 penalties to be deposited in the Sexual Assault Nurse Examiner (SANE) Program Fund, N.J.S.A. 2C:43-3.6. We affirm the convictions, but remand for resentencing in compliance with State v. Natale (Natale II), 184 N.J. 458 (2005).

The following facts were developed at trial. At approximately 9:15 p.m., while K.M. and C.P. were parked in an area in Bridgeton City Park overlooking a lake, they observed a car containing four men pull up with its headlights shining on K.M.'s car. Claiming to be a policeman, defendant was the first to exit the unknown vehicle. K.M. described defendant as "a dark complected male [with] corn rowed style hair," approximately 5'6" to 5'9", and wearing a red or orange tee shirt. According to C.P., he remembered that defendant's shirt was yellow. C.P. also testified, when asked if he had seen defendant before the evening in question, that he had seen him before but did not know him personally. Defendant opened K.M.'s door, grabbed her cell phone, and attempted to pull K.M. out of the car as C.P. held onto her, trying to pull her back into the car. Defendant then handed the cell phone to co-defendant Nichols, who was wearing an Old Navy tee shirt. Defendant punched C.P. in the head, above the eyebrow, splitting it open. The others attempted to pull C.P. out of the car. They took his cigarettes, a lighter, a wallet, and thirty-five dollars in cash.

Meanwhile, defendant pulled K.M. out of the car, brought her to the back of the car where he "pressed [her] up against [the] side of the car," patted her down, and ordered her to spread her legs. When K.M. resisted, defendant punched her repeatedly in her ribs. Defendant took K.M.'s keys and wallet containing eighty-five dollars. Defendant lifted K.M.'s shirt, pulled off her bra, unbuttoned her pants and dropped them to her ankles, and inserted his finger in her vagina. One of the other men then came up to her, pulled her shirt over her head so that she could not see, after which she felt fingers inserted into her at least ten times. After the others left, K.M.'s shirt was taken off, and defendant inserted his fingers into her rectum. When she screamed for help, defendant slammed her head into the trunk. She cried, "God, help me," and heard one of the men say, "God couldn't help [you]." The others yelled, "Shut up," and, "We'll kill you."

While at the rear of the car, defendant held K.M.'s head down while he and one of the other three men groped her. She was left alone for a brief time and tried to put her pants back on, however, defendant came back and removed her pants and underpants and threw them somewhere. She was then thrown to the ground and raped by three of the men. As the men took turns forcing intercourse with her, she feigned unconsciousness in the hopes they would stop. However, the men, including defendant and Nichols, responded by slapping and punching her in the face. She pretended to wake up, after which she was pulled away from the car and forced to perform oral sex on two of the men, one being defendant. K.M. did not know whether the men ejaculated during the intercourse.

Meanwhile, C.P. was forced to remain in the car and to watch, from about ten feet away, the sexual acts being performed on K.M. He was hit from time to time by the men, including defendant, as he was forced to watch them having their way with K.M. At one point, he was struck on the hands with a baseball bat by co-defendant Hinson after being ordered to place his hands on the dashboard. C.P. recognized Hinson from high school. While being forced to watch, C.P. saw defendant forcing K.M. to perform oral sex. He also believed that defendant had the other men flip K.M. over, so defendant could have sex with her.

K.M. was taken to the woods about twenty-five feet away from C.P., out of his view, where she was forced by one of the other men to perform oral sex. She was then punched across the cheek by another of the men and she pretended to pass out.

The men returned from the woods, ordered C.P. out of the car, covered his face with "a doo-rag [or] a wave cap" and proceeded to hit C.P. with a "barrage of attacks to the face" while he stood against the car. C.P. fell to the ground after being hit by Hinson with the baseball bat across the back of his knees. He then received what he described as "the beating of [his] life." He was hit repeatedly with the baseball bat, stomped on, jumped on, kicked, and punched by all the men. One of the men then said they had been there too long and they got back in their car. Before they left, one of the men went back and hit C.P., and told him that if he did not move he would be run over.

The men left in the car approximately thirty to forty-five minutes after they had first arrived. K.M. came out from the woods wearing just a T-shirt. She got back in her car, retrieved a spare set of keys she kept in the glove box, and drove herself and C.P. to the hospital.

C.P. had bruises, cuts, scrapes, a split eyebrow, a boot print on his back, sore ribs, and two black eyes. In all, C.P. believed he was hit in the face "about a hundred [times]." K.M. suffered scrapes all along her back, scars on her hand, a lump on her right hand that has not gone away, and bruises on her knees and chest.

K.M. was transferred to Newcomb Hospital where Janice Waligroski, a Sexual Assault Nurse Examiner, performed an examination. She collected evidence, including dried secretions from K.M.'s breasts, nipples, and the outside of her mouth. Waligroski also collected head hair combings, oral specimens, swabs from underneath K.M.'s fingernails, pubic hair combings, an external genital specimen, vaginal secretions, cervical specimens, anal specimens, and a buccal control swab to obtain K.M.'s DNA. Waligroski determined "that there had been some rather aggressive [sexual] interaction," but could not determine the number of individuals involved.

Hinson was arrested at 11:20 p.m. the evening of the attack and given his Miranda*fn1 warnings. After Hinson inculpated defendant, the police went to defendant's home and arrested him. Defendant was given his Miranda rights in the police vehicle while being taken to headquarters. At headquarters, he was presented with and signed a Miranda rights card. Initially, defendant was reluctant to discuss the incident. However, after being informed that Hinson had implicated him, defendant told Detective Richard Zanni that he and the other men "were looking to screw up a prom in the projects and then they decided to go out and rob a Mexican." He then told the police that the men ended up at the park and they first came into contact with an individual that they tried to rob but that person escaped. He explained that they drove a bit further when they came in contact with the victims.

Defendant then consented to provide a statement on tape. He was again advised of his Miranda rights. In his taped statement, defendant related that the four men were riding around when Milledge got into a confrontation with someone he suspected of attacking his brother. The men drove off before the confrontation became violent but planned to return. Milledge "wanted to take his aggression out by knocking out some Mexi's," which defendant assumed to mean "beating them up and robbing them." Defendant was in favor of that idea because he had financial difficulties and could not get a job. According to Milledge, the first place the men went to rob Mexicans was too risky due to police presence, so Hinson told the men that he knew a good spot to rob Mexicans. The men then encountered an individual, who jumped out of his car with no shirt on, but was able to start his car and pull away before the men could rob him. About a minute later, the men came across K.M. and C.P., and defendant stated that he and Milledge went up to the driver's side of K.M.'s car and Nichols shouted that they were the police.

Defendant stated that they grabbed the keys, Milledge took K.M.'s cell phone, and Nichols hit C.P. When C.P. tried to go after Nichols, defendant, then Hinson, hit C.P. While Hinson stood at the passenger's door with a baseball bat, K.M. was taken to the back of the car where she was robbed. Defendant believed the men took $70 from K.M., $20 of which he received. Milledge struck K.M. and Milledge and Nichols disrobed her. Defendant stated that Milledge, Hinson, and Nichols forced K.M. to have oral sex with them while defendant searched through the car. Defendant said that Nichols was standing over K.M., holding a bat, as she was forced to perform oral sex. When C.P. got out of the car, Nichols and Hinson began hitting him in the knees with two different baseball bats. C.P. also swung at defendant, and defendant kicked C.P. Although he thought that Nichols had intercourse with K.M., defendant stated that he did not actually see it. Defendant maintained that he did not have intercourse with K.M., and that the whole incident occurred in no more than twenty minutes.

At trial, defendant denied being involved in the attack.

At the time of his arrest, he was wearing a blue jersey with a red t-shirt under the jersey. According to defendant, Hinson came to his house earlier that night to ask how his mother, who was hospitalized, was doing. Later that evening, Hinson returned at approximately "10 o'clock [or] 10:30 ish" with Milledge and Nichols, acting "fidgety." Hinson told defendant, "[w]e just wowed out on this couple," meaning they beat them up. The three wanted to lay low at defendant's house but defendant told them they had to leave.

A blue football jersey, with the number twenty, with "B. Sanders" written on the back, as well as a red sleeveless t-shirt with "Sean John" written on it was collected from defendant. A baseball bat was found in the trunk of Hinson's car.

At trial, the parties stipulated the following:

[N]o DNA of [defendant] was detected in the specimens from the sexual assault evidence collection kit of [K.M.]

Nineteen fingerprint[s] or palm prints were lifted from the exterior of [K.M.'s] car. Fourteen of those had sufficient characteristics for identification purposes. None of them matched the fingerprints or palm prints of [defendant] but did match co-defendants . . . Milledge and . . . Nichols. On appeal, defendant raises the following points:

POINT I

THE EXCLUSION OF EXCULPATORY EVIDENCE THAT AN UNKNOWN PERSON'S DNA WAS PRESENT IN THE MATERIAL COLLECTED FROM THE FEMALE VICTIM DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE. (Not Raised Below.)

POINT II

THE CRIME OF KIDNAPPING OF THE FEMALE VICTIM WAS UNSUPPORTED BY SUFFICIENT EVIDENCE BECAUSE THE CONFINEMENT WAS INCIDENTAL TO THE OTHER CRIMES; ADDITIONALLY, THE JURY INSTRUCTIONS FOR BOTH KIDNAPPINGS WERE DEFICIENT. (Partially Raised Below.)

A. Sufficiency of the Evidence of Kidnapping of the Female Victim.

B. Jury Instruction Error Applicable to Both Kidnappings.

C. Jury Instruction Error Applicable Only to the Kidnapping of the Male Victim.

POINT III

THE REPEATED REFERENCES TO HIGHLY INFLAMMATORY EVIDENCE THAT THE DEFENDANT HAD PLANNED TO "BEAT UP AND ROB SOME MEXICANS," AND HAD ATTEMPTED TO ROB SOMEONE JUST BEFORE THE INCIDENT, DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below.)

POINT IV

THE COURT MUST ORDER A REMAND FOR A HEARING TO DETERMINE WHETHER THE IMPERMISSIBLY SUGGESTIVE SHOW-UP OF DEFENDANT'S PHOTOGRAPH TO C.P. TAINTED HIS IN-COURT IDENTIFICATION.

POINT V

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

POINT VI

TWO OF THE SEXUAL ASSAULT NURSE EXAMINER FEES MUST BE VACATED.

In a supplemental brief, defendant asserts the following additional point.

POINT I

THE DEFENDANT'S STATEMENT SHOULD BE SUPPRESSED AS HIS ARREST WAS ILLEGAL GIVEN THE LACK OF AN ARREST WARRANT AND THE FAILURE OF THE POLICE TO OBTAIN A VALID CONSENT TO ENTER HIS HOME. N.J. Const. Art. I, para. 7.

In a pro se supplemental brief, defendant raises the following points:

POINT I

THE DEFENDANT WAS ILLEGALLY ARRESTED BY THE BRIDGETON POLICE DEPARTMENT ON SEPTEMBER 19 GOING INTO SEPTEMBER 20, AND WAS ILLEGALLY DETAINED WITHOUT WARRANT OR THE JUDICIAL AUTHORIZATION FROM A NEUTRAL AND DETACHED MAGISTRATE. AND NO "PROBABLE CAUSE" AUTHORIZED PURSUANT TO R. 3:3-1(a)1., R. 3:3-1(a)2. IN VIOLATION OF HIS GUARANTEED RIGHT TO BE FREE FROM ILLEGAL SEARCHES AND SEIZURES. U.S.C.A. AMENDMENTS 4, 5, 14 AND IN VIOLATION TO N.J. CONSTITUTION ART. 1 ¶ 7, 8, 10.

POINT II

THE PROSECUTOR FAILED TO PROVE SEXUAL ASSAULT.

We first address defendant's contention that that the exclusion of an unknown person's DNA from that collected from K.M. denied defendant his constitutional right to present a defense. Prior to the commencement of trial, after discussing the stipulation, the prosecutor raised the following concern:

In addition, your Honor, I know you just read the stipulation about the sexual assault examination. I just would like the record to be clear, and maybe it isn't, maybe we need to address this, that there will be no discussion of the fact that the stain that was obtained contained DNA of some unknown person.

It would be our application to preclude that under the rape shield law.

Defense counsel responded, "We have no objection to that, Judge." There was no further discussion on the issue.

Now, for the first time on appeal, defendant argues that the presence of DNA from an unknown source "was powerful evidence supporting the defense contention that the victims misidentified defendant." Defendant's argument that the judge's decision to exclude the evidence amounted to plain error. He also argues that trial counsel's failure to seek the admission of evidence that DNA was collected from an unknown source represented ineffectiveness assistance of counsel.

A criminal defendant possesses the rights to confront witnesses against him and present a defense. U.S. Const. amends. VI and XIV; N.J. Const. art. I, ¶ 10. The right to present a defense encompasses "the right to argue that someone else committed the crime." State v. Fortin, 178 N.J. 540, 590 (2004) (citing State v. Jimenez, 175 N.J. 475, 486 (2003); State v. Koedatich (Koedatich II), 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989)). Evidence that a third party committed the crime charged should generally be admitted where the probative value of the evidence, namely, the evidence's ability to provide a link between the third party and the victim or crime, outweighs countervailing considerations such as confusion of the jury or undue consumption of time. State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S.Ct. 873, 4 L.Ed. 2d 873 (1960); Koedatich II, supra, 112 N.J. at 297-99; N.J.R.E. 104. Where "'the proof offered has a rational tendency to engender a reasonable doubt with respect to the essential feature of the State's case,'" it should not be withheld from the jury. Fortin, supra, 178 N.J. at 591 (quoting Sturdivant, supra, 31 N.J. at 165). Admissibility is dependent on a connection between the third party and the crime capable of raising a reasonable doubt with respect to an essential feature of the State's case. Ibid. "The connection between the third party and the crime cannot be left to conjecture." Ibid.

Contrary to defendant's argument, the judge never excluded the DNA evidence. A N.J.R.E. 104 hearing was never held. Defendant, through counsel, expressly waived any objection to the State's position that the unknown DNA evidence should not be admitted. Indeed, trial counsel's waiver was made in connection with a stipulation which was agreed upon by the parties.

Counsel's "'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable'" when assessing the reasonableness of counsel's performance. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed. 2d 674, 695 (1984)). Moreover, "strategic choices made after a limited investigation are assessed for reasonableness, with great deference given to counsel's professional judgments." Ibid. We have grave doubts, given defendant's statements to the police that he was at the scene with the other three men and the significance of the stipulation that defendant's DNA and fingerprints were not recovered, that any additional evidence that an unknown person's DNA was found somewhere on K.M. would have helped him in his defense that the victims misidentified him.*fn2 Clearly, the jury did not believe his testimony that he was not at the scene, recanting his prior statement to the police.

However, advice obtained from counsel and the source and nature of the unknown person's DNA involves evidence beyond the trial record and, thus, best addressed on an application for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992); State v. Ospina, 239 N.J. Super. 645, 656 (App. Div.), certif. denied, 127 N.J. 321 (1990). We, therefore, decline to consider the issues raised concerning the DNA and leave it to defendant's right to apply for post conviction relief.

We next address defendant's argument that the evidence that defendant and the others initially planned to rob Mexicans amounted to plain error because it was highly inflammatory and inadmissible as under N.J.R.E. 404(b) as evidence of other crimes or bad acts. N.J.R.E. 404(b) "does not apply when the 'other crimes' evidence is part of the total criminal conduct that occurred during the incident in question and may be considered within the res gestae of the charged crime." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995); see also State v. Long, 173 N.J. 138, 157 (2002). "Other crimes" evidence which relates directly to the crimes for which the defendant is on trial is admissible if it "serves to paint a complete picture of the relevant criminal transaction . . . 'furnishes part of the context of the crime' or 'is necessary to a full presentation of the case.'" State v. Martini, 131 N.J. 176, 242 (1993) (quoting United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)), cert. denied, 616 U.S. 875, 116 S.Ct. 203, 133 L.Ed. 2d 137 (1995); see also Cherry, supra, 289 N.J. Super. at 522 (holding that "[e]vidence of events that take place during the same time frame as the crime charged . . . will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury"). The evidence that the men originally intended to beat up and rob Mexicans was properly admitted as res gestae evidence, N.J.R.E. 803(c)(3). It presented a full picture of the group's plans that evening and established the context for their criminal encounter with K.M and C.P.

In a pretrial motion, defendant requested a Wade*fn3 hearing, asserting that the photographic showup was impermissibly suggestive because only the defendant's and the three co-defendants' photographs were shown to C.P. and K.M. The State countered that, at the time the victims were shown the photographs, defendant and the three others had implicated themselves, and the photographs were shown to the victims to have them relate in their statements what each individual did to them.

The judge conducted a Wade hearing to determine whether K.M.'s identification was based upon her review of the photographs or her independent recollection of the events. Following K.M.'s testimony, the judge found that K.M.'s identification of defendant was based upon her observations at the scene and permitted her testimony. Although he thought the use of the photographic showup was for purposes other than to identify the actors, the judge had sufficient misgivings to preclude all testimony concerning the photographic showup. He limited K.M.'s in-court identification based upon her observations at the scene.

Although defendant had initially asked for a similar hearing regarding C.P., after K.M.'s testimony concluded, the judge indicated that C.P.'s testimony would be similarly limited to his ability to identify defendant in court based upon his observations at the scene.*fn4 Defense counsel did not object. Defendant now contends a remand is necessary in order to determine whether the photographic showup tainted C.P.'s in-court identification. We disagree.

The principles are well settled. When evaluating the admissibility of an out-of-court identification, the court employs a two-part test. State v. Madison, 109 N.J. 223, 232 (1988). First, it considers whether the identification procedure was, in fact, unnecessarily suggestive. Ibid. Second, if the court finds that the procedure was suggestive, it must then evaluate whether the identification was sufficiently reliable for admission despite the suggestiveness of the procedure. Ibid. A defendant who seeks to exclude an out-of-court identification must demonstrate, "by a preponderance of the evidence that the pretrial identification was so suggestive as to result in a substantial likelihood of misidentification." State v. Hurd, 86 N.J. 525, 548 (1981). A court may bypass determining the suggestibility of a particular identification procedure if "the totality of the circumstances reflected in the record demonstrates the reliability of [the witness's] identification independent of the photographic identification procedure." State v. Little, 296 N.J. Super. 573, 579-80 (App. Div.), certif. denied, 150 N.J. 25 (1997). Here, the photographic identification was not the only evidence connecting defendant to the robbery.

Even if we determined that the identification procedure concerning the photograph was suggestive, we are satisfied that C.P.'s testimony respecting defendant's involvement was based solely on his independent recollection of the events at the scene and not the photographs shown to him at police headquarters following defendant's arrest. In other words, under the totality of the circumstances, C.P.'s identification was reliable. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed. 2d 401, 411 (1972). Factors to be considered include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Ibid. "Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977).

Notably, C.P., like K.M., testified that, although it was dark, the lights from Hinson's car provided some illumination. C.P. was able to view defendant from a very close proximity. Throughout the lengthy ordeal, C.P. had numerous opportunities to view defendant. Indeed, he was forced to watch the criminal events perpetrated on K.M. continuously through the intimidating conduct of the defendant and the three co-defendants. C.P. was not a casual observer. He was confronted directly by defendant and thus intimately involved in the incident. His detailed testimony documenting his observations of what happened to himself and K.M. showed that he paid close attention to the events as they unfolded. C.P. accurately described defendant based upon his recollection at the scene. He positively identified defendant without hesitation at trial.

Moreover, the photographic showup was held within twenty-four hours of the confrontation. Identifications made a short time after the criminal event "are likely to be accurate, taking place . . . before memory has faded . . . facilitate and enhance fast and effective police action and . . . tend to avoid or minimize inconvenience and embarrassment to the innocent." State v. Wilkerson, 60 N.J. 452, 461 (1972) (citing United States v. Perry, 449 F.2d 1026, 1032-34 (D.C. Cir. 1971)). We are satisfied that the identification of defendant by C.P. at trial was based upon his independent recollection of the events and was sufficiently reliable under the circumstances. We see no need for a re-run of C.P.'s testimony, given defendant's failure to insist on an additional Wade hearing after completion of K.M.'s pre-trial testimony.

In Point II, defendant argues that his conviction of kidnapping was not supported by the weight of the evidence because he did not substantially confine K.M. The same argument was raised by co-defendant Milledge in his appeal. The following rationale that we pointed out in the unreported portion of our opinion in State v. Milledge, No. A-6847-03 (App. Div. June 15, 2006) (slip op. at 17-19), is equally applicable here.

N.J.S.A. 2C:13-1b defines kidnapping, in relevant part, as unlawfully confining another for a substantial period, to either

(1) "facilitate commission of any crime or flight thereafter;" or (2) "inflict bodily injury on or to terrorize the victim or another." To support a conviction for kidnapping, the confinement must be "'criminally significant in the sense of being more than merely incidental to the underlying crime.'" State v. La France, 117 N.J. 583, 594 (1990) (quoting State v. Masino, 94 N.J. 436, 447 (1983)). In determining whether confinement is more than incidental, the jury must be instructed to look beyond the duration of the confinement to the "'enhanced risk of harm resulting from the [confinement] and isolation of the victim . . . ." Ibid. (alteration in original). It is the enhanced risk of harm that makes the confinement more than merely "ancillary to the crime that was its purpose." State v. Lyles, 291 N.J. Super. 517, 526 (App. Div. 1996), certif. denied, 148 N.J. 460 (1997).

The enhanced risk of harm must be considered, not the duration of confinement. In State v. Bryant, 217 N.J. Super. 72, 80-81 (App. Div.), certif. denied, 108 N.J. 202, cert. denied, 484 U.S. 978, 108 S.Ct. 490, 98 L.Ed. 2d 488 (1987), elderly victims in four separate burglaries were bound and gagged and left that way after the defendant fled. The panel noted that the victims' confinement to facilitate the defendant's flight increased the risk to the victims. There was no one to help them if they had difficulty breathing or suffered a heart attack. Id. at 81; see State v. Denmon, 347 N.J. Super. 457, 465-66 (App. Div.) (upholding kidnapping conviction where elderly victims handcuffed to chairs during robbery because after robbers left, nobody around to help victims), certif. denied, 174 N.J. 41 (2002).

In La France, supra, 117 N.J. at 591-93, the Court held that the elements of kidnapping were met where the defendant forced a woman to tie up her husband and then left him in his bedroom for at least thirty minutes while the defendant sexually assaulted the man's wife in the hallway, as the confinement enhanced the terror of the victims. The question to be answered is whether the "asportation or detention . . . during the course of the commission of another crime 'significantly increases the dangerousness or undesirability of the defendant's behavior.'" Id. at 587 (quoting Gov't of Virgin Islands v. Berry, 604 F.2d 221, 227 (3d Cir. 1979)). "N.J.S.A. 2C:13-1b clearly makes a confinement for a 'substantial period' a first-degree kidnapping if it facilitates the terrorization or injury of another." La France, supra, 117 N.J. at 593. The key is not necessarily the length of confinement, but whether there is an enhanced non-trivial risk to one victim who is unable to avert the terror caused by the added humiliation resulting from being forced to be present while the defendant committed acts against another. Id. at 594.

K.M. was dragged from the car, isolated at the trunk of the car where she was restrained for a significant period while she was brutally and repeatedly sexually assaulted. Likewise, her captivity while C.P. was repeatedly beaten in her presence was additional evidence of substantial confinement. See Masino, supra, 94 N.J. at 445-47; State v. Matarama, 306 N.J. Super. 6, 21-22 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998). Most importantly, the taking of K.M.'s car keys, cell phone, and wallet, without knowledge that she had a spare key in the glove compartment, was conduct that created an enhanced risk of harm for both victims, who were left ostensibly without either a means of transportation or a way to contact someone for help after the perpetrators left.

Likewise, as we pointed out in Milledge, the judge instructed the jury on the La France factors by using the Model Jury Charge on Kidnapping as revised in June 24, 1991, pursuant to the following suggestion by the Court in La France:

Court and counsel should frame a charge to the jury in which defendant's conduct is measured in terms of whether the detention was merely incidental to the underlying crimes. A court may wish to use the Berry factors, suggesting to the jury that it consider: (1) the duration of the detention; (2) whether the detention occurred during the commission of a separate offense; (3) whether the detention was inherent in the separate offense; and (4) whether the detention created a significant danger to the victim or another independent of that posed by the separate offense.

[La France, supra, 117 N.J. at 594.]

Contrary to defendant's contention, there was no error much less plain error in the judge's instructions. R. 2:10-2.

Defendant's final Point II contention that the judge erred in failing to charge accomplice liability on the kidnapping charge respecting C.P. because the evidence concerning defendant's actions in confining C.P. was insufficient lacks merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Defendant is correct that Hinson was a principal actor in confining C.P. However, the evidence established that defendant was substantially involved in the confinement as well. Defendant was the first individual to contact C.P., punching him in the eye and dazing him so that the others could more easily assault him. There was substantial evidence in the record that throughout the ordeal defendant took his turn confining C.P. to prevent him from aiding K.M. Moreover, the judge correctly charged the jury on the elements of kidnapping and criminal restraint respecting C.P.

Defendant's Point VI argument regarding the impropriety of the Sexual Assault Nurse Examiner's (SANE) fee was also addressed by us in Milledge:

Like the factors justifying consecutive terms and periods of parole ineligibility, the ages used in determining monetary penalties are "neither intended by the Legislature to constitute elements of a crime nor [are] they transformed into constitutional elements when the judge used them" in accordance with statutory mandate. State v. Abdullah, 184 N.J. 497, 511-12 (2005); see also Harris v. United States, 536 U.S. 545, 562, 122 S.Ct. 2406, 2416-17, 153 L.Ed. 2d 524, 541 (2002) (plurality opinion). We are satisfied that the challenged SANE penalties were imposed in accordance with the statute and do not suffer from the constitutional infirmities proscribed by Blakely. [Milledge, supra, slip op. at 17-19.]

For these same reasons, we reject defendant's contention that the failure of a jury to make a finding regarding the age of either victim, is violative of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2005).

After Hinson implicated defendant, three officers went to defendant's house, arriving sometime between 1:00 a.m. and 1:40 a.m. One of the officers was in uniform and two were in plain clothes. One of the plain-clothed officers wore a badge around his neck. They knocked on the door and were admitted by an unidentified female who was described as being eighteen or nineteen years of age. They asked if defendant was there and the female responded, "Yes, he's here. Come in." They advised defendant that they needed to talk to him and that he had to go with them to City Hall. Defendant agreed to accompany them. The officers did not handcuff defendant or advise him he was under arrest while in the house, however, they considered him under arrest at the time. They wanted to keep the scene as peaceful as possible considering the presence of other unknown individuals in the house.

In his supplemental brief filed by counsel, defendant contends that his Mirandized statement should have been suppressed as "fruit of the poisonous tree" because his arrest was made without an arrest warrant. Defendant urges that we reject the holding in New York v. Harris, 495 U.S. 14, 21, 110 S.Ct. 1640, 1644-45, 109 L.Ed. 2d 13, 22 (1990), and accept the rule announced in Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374-75, 63 L.Ed. 2d 639, 644 (1980). In Harris, the Supreme Court addressed a case in which the police illegally, without an arrest warrant, entered the defendant's home in order to effect his arrest, for which they had probable cause.

[W]e decline to apply the exclusionary rule in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime.

[Harris, supra, 495 U.S. at 17, 110 S.Ct. at 1643, 109 L.Ed. 2d at 20.]

In State v. Bell, 388 N.J. Super. 629, 640 (App. Div. 2006), certif. denied, 189 N.J. 647 (2007), we relied upon Harris to find that a defendant's subsequent Mirandized statement was not subject to suppression, although the entry into the house without a search warrant was a violation of Payton. Harris explains that the "indirect fruits of an illegal . . . arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality." Harris, supra, 495 U.S. at 19, 110 S.Ct. at 1643, 109 L.Ed. 2d at 21. "[T]he 'illegality' is the absence of probable cause and the wrong consists of the police's having control of the defendant's person at the time he made the challenged statement." Id. at 19, 110 S.Ct. at 1643-44, 109 L.Ed. 2d at 21 (quotation omitted). Because the arrest warrant protects the home, the Harris majority reasoned that a statement taken outside the home following an arrest with probable cause "would not serve the purpose of the rule that made Harris's in-house arrest illegal."

Id. at 20, 110 S.Ct. at 1644, 109 L.Ed. 2d at 22. Thus, where the "police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside the home, even though the statement is taken after an arrest is made in the home in violation of Payton." Id. at 21, 110 S.Ct. at 1644-45, 109 L.Ed. 2d at 22.

Here, Hinson's implication of defendant provided the police with probable cause to arrest. Defendant's subsequent confession at police headquarters did not "come . . . by exploitation" in violation of the federal constitution. Id. at 19, 110 S.Ct. at 1644, 109 L.Ed. 2d at 21 (quotation omitted); see N.J. Const. art. I, ¶ 7.

Defendant raises two challenges to the sentence imposed. First, he claims that the judge failed to express appropriate reasons for imposing a consecutive sentence on the robbery convictions. State v. Miller, 108 N.J. 112, 122 (1987). The judge merely stated, "consecutive sentencing [is used here] as an appropriate means to protect society." Although the judge did not discuss the factors enumerated in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), "crimes involving multiple victims represent an especially suitable circumstance for the imposition of consecutive sentences." State v. Molina, 168 N.J. 436, 442 (2001). We may occasionally dispense with the requirement to remand for reasons for imposing consecutive sentences, especially when they involve more than one victim. Ibid. While a statement of reasons is normally crucial to appellate review, we are satisfied that "the crimes involved multiple victims" and "the convictions for which the sentences [were] imposed are numerous." Yarbough, supra, 100 N.J. at 644.

Secondly, defendant asserts, and the State concedes, that the seventeen-year term for the merged first-degree aggravated sexual assault convictions and the eight-year terms for the second-degree robbery convictions exceed the presumptive terms, necessitating a remand under Natale II, supra, 184 N.J. at 495-96.

Finally, defendant's pro se contentions that the State lacked probable cause to arrest him and failed at trial to present sufficient proof to convict him of aggravated sexual assault lack sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

The judgment of conviction is affirmed and the merged aggravated sexual assault convictions are remanded for resentencing in accordance with Natale II.


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