On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-10-1091.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Simonelli.
On October 18, 2005, the Mercer County Grand Jury charged defendant, Paul Burke, under Indictment No. 05-10-1091, with four counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts one, six, nine and thirteen); three counts of first- degree armed robbery, N.J.S.A. 2C:15-1 (counts five, eight, and sixteen); second-degree robbery, N.J.S.A. 2C:15-1 (count twelve); five counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (counts two, three, seven, ten, and fourteen); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (counts four and fifteen); and fourth-degree sexual contact, N.J.S.A. 2C:14-3(b)(1) (count eleven).*fn1
Following a seventeen-day jury trial, defendant was acquitted on counts two, five and eight, however, the jury found defendant guilty of the lesser included offense of criminal restraint. The jury rendered a guilty verdict on two counts of first-degree kidnapping (counts six and eleven), three counts of second-degree sexual assault (counts seven, nine and twelve), second-degree sexual contact (count ten) and third-degree terroristic threats (count thirteen). The jury was unable to reach a verdict on counts one, three and four, and the State dismissed those counts along with the original count eight and counts fourteen through sixteen.
Judge Bielamowicz sentenced defendant to a period of incarceration on each conviction as follows: on count six, twenty-five years, subject to an eighty-five percent period of parole ineligibility under the "No Early Release Act" (NERA), N.J.S.A. 2C:43-7.2, with five years' parole supervision upon release; on count seven, ten years subject to NERA, and three years' parole supervision upon release, to run concurrent with the sentence on count six; on count eight, five years to run concurrent with the sentence on count six; on count nine, ten years subject to NERA, with three years parole supervision upon release, to run concurrent with the sentence on count six; on count ten, eighteen months, to run concurrent with the sentence on count six; on count eleven, twenty-five years subject to NERA, with five years parole supervision upon release, to run concurrent to the sentence on count six; on count twelve, nine years subject to NERA, with three years parole supervision upon release, to run consecutive to the sentence on count six; and on count thirteen, four years, concurrent to the sentence on count six. Megan's Law, N.J.S.A. 2C:7-1 to -11 applied to counts seven, nine, and twelve. Appropriate fines, penalties and assessments of $2,630 were imposed.
On appeal defendant urges reversal of his conviction, arguing:
POINT I. BY IMPROPERLY JOINING FOUR SEPARATE AND UNRELATED OFFENSES FOR TRIAL, THE COURT DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT II. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BY THE ADMISSION OF IMPROPERLY AND UNNECESSARILY DETAILED TESTIMONY UNDER THE GUISE OF "FRESH COMPLAINT."
POINT III. DEFENDANT'S RIGHT TO A FAIR TRIAL WAS IRREPARABLY DAMAGED BY THE ADMISSION OF IRRELEVANT AND HIGHLY PREJUDICIAL OTHER-CRIMES EVIDENCE. (Partially Raised Below.)
POINT IV. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE PROSECUTOR, DELIBERATELY AND FOR NO LEGITIMATE PURPOSE, ELICITED FROM [C.J.] HER DISCOVERY, AS A RESULT OF HER POST-INCIDENT MEDICAL EXAMINATION, THAT SHE HAD BEEN IN AN EARLY STAGE OF PREGNANCY AT THE TIME OF THE INCIDENT.
The charges in the indictment emanated from a series of sexual assaults and related crimes in Trenton. We gather the following facts regarding the attacks on the four victims from the evidence presented at trial.
On April 3, 2002, C.F., a janitor at the Joyce Kilmer Elementary School, left work around 10:15 p.m. and stopped at her sister's residence. C.F. consumed alcohol, smoked marijuana, and played cards. Also, C.F. was taking Marinol to stimulate her appetite. When C.F. left her sister's home, she walked down Stuyvesant Avenue toward the bus stop. As she walked, she saw a man flash the lights of his automobile and heard him repeating the word "yo." The man stopped his car, exited, and pulled her "by the hair" into his vehicle.
C.F. described the man as a "real big guy" with a dark complexion, wearing a skull cap. She explained he took her to a shack on Witherspoon Street. C.F. believed the assailant had a weapon and he threatened to kill her if she did not comply as ordered. The assailant told C.F. to "suck my penis." C.F. refused. The attacker told C.F. to "do as I say or I'm going to kill you." C.F. complied. The attacker penetrated C.F., ejaculated, and then threw C.F. to the ground.
As the man fled the scene, C.F. threw a Heineken bottle and broke his car's right, rear side window. C.F. ran to a police mini-station on Stuyvesant Avenue, reported the rape, and explained her attacker retained her cell phone and wallet. In a later statement given to police, C.F. identified the assailant's car as burgundy, with a "for-sale" sign on the left-hand side and a front license plate that said "fear this."
When shown photographs of suspects, C.F. identified Ryan Rose as her attacker. C.F. received medical treatment at the Robert Wood Johnson Medical Center, where she remained for three days. She was transferred to the Helene Fuld Medical Center, because she suffered a nervous breakdown.
On September 28, 2002, K.H. visited her boyfriend at Mercer Medical Center on Bellevue Avenue, Trenton. A little before 10 p.m., K.H. left the hospital and walked toward a nearby bus stop. She waited approximately twenty minutes for a downtown bus to arrive. A burgundy car rode past her "several times." K.H. described the driver as a "heavy-set, happy and smiling" African-American male. The man was "looking" at her and then offered her a ride. K.H. recognized the driver as someone she had met and voluntarily entered the car. Although she told the driver where ...