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State v. Cepates

May 28, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICARDO CEPATES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-04-00465.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 4, 2008

Before Judges Lintner, Sabatino and Alvarez.

Defendant, Ricardo Cepates, was convicted in two separate trials of multiple first-degree aggravated sexual assaults and related offenses against eight victims. He now appeals, contending the trial court erred when it denied his request for severance and that inferential hearsay was elicited from an investigating detective in violation of his right of confrontation. Defendant also challenges his sentence as manifestly excessive. He is entitled to reconsideration of his sentence on remand pursuant to the principles enunciated in State v. Natale (Natale II), 184 N.J. 458 (2005). We affirm the convictions, and remand in accord with Natale II.

As a result of the first trial, which addressed charges involving five victims, the jury on October 26, 2004, returned guilty verdicts on Middlesex County Indictment No. 04-04-00465 on five counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts one, twenty, twenty-five, thirty-four, and forty); nine counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts two, three, twenty-one, twenty-two, twenty-six, twenty-seven, thirty-five, thirty-six, and forty-one); five counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c) (counts four, twenty-three, twenty-eight, thirty-seven, and forty-two); and four counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts five, twenty-four, twenty-nine, and thirty-eight). Counts one through five relate to crimes which occurred on September 20, 2001, against J.C.; counts twenty through twenty-nine relate to crimes which occurred on February 23, 2002, against E.M. and her daughter S.C.; counts thirty-four through thirty-eight relate to crimes which occurred on August 16, 2002, against C.L.; and counts forty through forty-two relate to crimes which occurred on June 28, 2003, against M.M.*fn1

Defendant was subsequently convicted at a separate trial on January 31, 2005, on the remaining counts of the indictment. Those charges were an additional first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count nine); second-degree sexual assault, N.J.S.A. 2C:14-2(c) (count ten); second-degree burglary, N.J.S.A. 2C:18-2 (count eleven); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count twelve); third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(d) (count thirteen); and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts fifteen and sixteen). Defendant was acquitted of count fourteen. The second trial related to an October 13, 2001, incident, during which the State contended defendant victimized I.R. and her children, ages seven and three.*fn2

After appropriate mergers, defendant was sentenced on all counts to a total aggregate term of 139 years subject to the No Early Release Act (N.E.R.A.), N.J.S.A. 2C:43-7.2(c), together with monetary penalties and assessments. This sentence represented seven consecutive terms for the crimes against all victims: J.C., E.M., S.C., C.L., M.M., I.R. and her two children.

THE ASSAULTS

September 20, 2001 Assault

At approximately 7:00 p.m. on September 20, 2001, in New Brunswick, J.C., a college student, noticed a man following her as she walked for several blocks. Shortly after she crossed the street she felt someone grab her from behind and cover her face. The attacker told her to keep quiet, held a broken bottle to her waist and forced her to walk to a nearby park. He spoke to her in broken Spanish and English, told her to "shut up" and repeatedly punched her. As J.C. struggled, the assailant raped her. He threatened to kill her if she looked at his face. As soon as the assailant left, J.C. fled and summoned the police.

J.C. received emergency medical treatment for a broken jaw, broken cheekbone, bruised eyes and ribs, scratches and abrasions to her hands and wrists. $20 was missing from her wallet. DNA samples belonging to the perpetrator were collected by a licensed sexual assault nurse examiner (SANE nurse). J.C. described her attacker as approximately 5 feet, 8 inches tall, with dark straight hair. She thought he had a Central American accent.

February 23, 2002 Assault

On February 23, 2002, at approximately 5:00 a.m., E.M. was walking to an employment agency, accompanied by her fifteen-year old daughter S.C., when a man put a knife to S.C.'s neck. He told E.M. that if she wanted her daughter to stay alive, she should follow but not scream. The assailant, who according to E.M. spoke Spanish with a Honduran accent, took the women to a vacant lot and made them kneel. He demanded their money and jewelry. He forced both mother and daughter to perform fellatio. He then forced them to lie on the ground face down. While pointing the knife at the child, he vaginally penetrated her mother. He penetrated the daughter anally and vaginally. When a police car passed by, the perpetrator threatened to kill the women if they screamed. After he left, they immediately reported the assaults.

Although they were examined by a SANE nurse, DNA samples could only be collected from S.C. E.M. reported that the attacker wore a hooded sweatshirt.

August 16, 2002 Assault

At approximately 10:30 p.m., on August 16, 2002, C.L., a college student, was walking to a video store when a man approached and asked for money, while armed with a knife. She grabbed at the weapon as he dragged her into an alley. When she screamed, she was told to "shut up." He forced C.L. to perform fellatio, and then raped her. The assailant apologized and left. She also immediately reported the crime.

DNA evidence was collected from C.L. by a SANE nurse at the hospital emergency room. C.L. testified that her attacker was Hispanic and spoke in Spanish.

June 28, 2003 Assault

On June 28, 2003, at approximately 5:20 a.m., when M.M. arrived home from work, she found a man standing on her doorstep. He spoke with a Honduran accent, and asked if she knew someone named "Jose." After she said, "no," the man grabbed her hair and pulled out a knife. As he dragged her away, she offered him money and jewelry, but the assailant told her in Spanish that he wanted to kill her. He cut two of her fingers as she struggled. He ...


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