October 6, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERNEST ZOPPI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, 05-03-0381.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Payne and Alvarez.
Defendant, Ernest Zoppi, was convicted by a jury of three counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and one count of second-degree sexual assault, N.J.S.A. 2C:14-2c. He was sentenced on the conviction for sexual assault to an extended term of twenty years in custody with a ten-year period of parole ineligibility, and was also found to be subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. However, the sentencing judge mistakenly regarded the NERA sentence as applicable only to the base term. Consecutive terms of imprisonment of eighteen months, each with nine months of parole ineligibility, were imposed as the result of two of the convictions for criminal sexual contact; a concurrent term of the same length with the same parole disqualifier was imposed for the third conviction for criminal sexual contact. The total aggregate sentence was thus twenty-three years in custody with eleven and one-half years of parole ineligibility. Defendant has appealed from his convictions and sentence.
On appeal, defendant presents the following arguments for our consideration:
POINT I THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE PROSECUTOR CALLED THE DEFENDANT "A PERVERT WITH A PLAN" IN HIS SUMMATION (Not Raised Below).
POINT II THE ABSENCE FROM THE TRIAL COURT'S CHARGE TO ANY REFERENCE TO THE PRINCIPLES OF STATE V. KOCIOLEK CONSTITUTES PLAIN ERROR (Not Raised Below).
POINT III THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS DUE PROCESS RIGHTS TO FULL APPELLATE REVIEW W[ERE] VIOLATED (Not Raised Below).
POINT IV IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 23 YEARS WITH A PAROLE INELIGIBILITY PERIOD OF 11-1/2 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.
(A) THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM ON HIS CONVICTION FOR SEXUAL ASSAULT ON COUNT TEN.
(B) IMPOSITION OF THE 20 YEAR BASE CUSTODIAL SENTENCE WITH 10 YEARS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTION FOR SEXUAL ASSAULT ON COUNT TEN WAS MANIFESTLY EXCESSIVE.
(C) THE COURT ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES ON THE DEFENDANT'S CONVICTIONS ON COUNTS ONE, TWO, AND TEN.
Evidence supported the jury's conclusion that defendant, a bail bondsman, engaged in sexual misconduct with women who sought his aid in posting bail for their husbands or other loved ones. On November 2, 2004, victim L.J. (fictitiously Lois) went to defendant's office in Jersey City to arrange bail for her boyfriend, who had been arrested and jailed. Once there, she was subjected to a partial strip search by defendant, who excused his conduct by stating that he was seeking to determine whether she was wearing a wire. During the search, defendant pulled down Lois's pants and underwear, touched her buttocks, and inserted a finger in her vagina. Additionally, defendant placed his hands under Lois's remaining clothes to fondle her breasts. Once the search was completed and Lois had again dressed, defendant suggested that she perform sexual favors in return for his assistance in obtaining bail, and he invited her to lie on the couch with him, stating that he "wanted" her. When Lois commenced to cry, defendant became nervous and stated he was merely "testing" her. Defendant then made a telephone call and, after it, he instructed Lois to return on the following day, adding that he would spank her if she did not return. Instead, Lois contacted her uncle, and on the following day, reported the incident to the police.
Approximately one month earlier, on September 26, 2004, C.I. (fictitiously Carol) went to defendant's place of business seeking assistance in posting bail for her husband. Carol, like Lois, was instructed to stand with her hands against the wall and to spread her legs so that defendant could determine if she were wearing a wire. Defendant then felt the inside of Carol's legs, up to her crotch area, and he fondled Carol's breasts. When Carol then refused, on request, to strip, defendant declined to assist her immediately, but stated that he would be in touch with her.
Carol returned to defendant's office on October 1 and was again fondled by defendant, who declared the process was his "favorite part" of their meeting. Later that day, defendant went to Carol's residence, but feeling uncomfortable, she did not permit him to enter, but instead, spoke to him on her porch. Carol reported the two incidents to the police in late October, but they took no action until a detective who was a friend of Carol intervened. She was asked to give a formal statement to the police on November 12, 2004.
On appeal, defendant first claims that the prosecutor committed plain error when, during the course of closing argument, he described defendant to the jury as a "pervert with a plan." This single reference was contained in an argument stressing the victims' vulnerability and suggesting a reason for their initial submission to defendant's unjustified search in the following terms:
You have two very vulnerable women. Did you ever tell someone, maybe a loved one, maybe your spouse or a boyfriend or a girlfriend or a child, I would do anything for you, I love you. I would do anything you ever asked. Well, these were two women who were thinking those types of thoughts when they had the unfortunate opportunity of meeting Ernest Zoppi.
You see on those dates, October 20 - September 26th and October 1st for [Carol] on November 2nd, 2004 for [Lois], Ernest Zoppi, the defendant in this case he didn't just act like a pervert. The evidence has shown, ladies and gentlemen, that he was a pervert with a plan and that plan was to put these women in a position where he could have sexual contact or penetration with them.
We do not regard this fleeting comment, which accurately, albeit colorfully depicted the evidence presented to the jury, as having been clearly capable of producing an unjust result. State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-1. When we view the comment in light of the evidence and the summation as a whole, we are satisfied that the remark was not so egregious that it deprived the defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). A prosecutor may make remarks that constitute legitimate inferences from the facts. State v. Perry, 65 N.J. 45, 48 (1974); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969). Furthermore, a prosecutor is not precluded from making a "vigorous and forceful presentation of the State's case." State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L.Ed. 2d 1160 (1958). That defense counsel raised no objection to the prosecutor's characterization suggests that he did not view the comment as prejudicial. Ramseur, supra, 106 N.J. at 323. We concur.
Defendant argues additionally that the trial judge committed plain error in failing to provide a Hampton/Kociolek charge in connection with inculpatory oral statements allegedly made by defendant to which Lois and Carol testified, which included comments concerning the victims' bodies, requests for a "blow job," threats of spanking, and refusal to provide aid unless the victim stripped. See State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957). However, the accounts given by the two women did not contain admissions by defendant, and thus their testimony was different from that upon which the Court focused in Kociolek, 23 N.J. at 421 and Hampton, 61 N.J. at 259-60. Instead, the women's testimony simply consisted of their accounts of what occurred - accounts that the jury was free to find credible or incredible, in accordance with the standard credibility charge that was given in this case.
Moreover, as the State has argued, even if a Hampton charge would have been appropriate, its omission does not require a new trial of this case. As the Court stated in State v. Jordan:
The failure of a court to give a Hampton charge, however, is not reversible error per se. It is reversible error only when, in the context of the entire case, the omission is "clearly capable of producing an unjust result. . . ." R. 2:10-2. That problem would arise most frequently when the defendant's statement is critical to the State's case and when the defendant has challenged the statement's credibility. If, however, the defendant's statement is unnecessary to prove defendant's guilt because there is other evidence that clearly establishes guilt, or if the defendant has acknowledged the truth of his statement, the failure to give a Hampton charge would not be reversible error. [147 N.J. 409, 425-26 (1997).]
In the present case, testimony regarding defendant's conduct provided independent evidence of his guilt. No reversible error thus occurred.
In a final challenge to his conviction, defendant argues that he has a right to a new trial as the result the failure to record four sidebar conferences at which defense counsel's objections to questions by the prosecutor were argued and overruled. However, because the line of questioning was continued, the existing record was sufficient to permit defendant to challenge the judge's ruling, if a legal basis for such a challenge existed. No such challenge has been presented. We therefore find no reversible error to have occurred. State v. Paduani, 307 N.J. Super. 134, 139-40 (App. Div. 1998), certif. denied, 153 N.J. 216 (1998).
In addition to challenging his conviction, in this appeal defendant challenges his sentence, arguing that the trial judge abused her discretion in sentencing defendant to an extended term, that imposition of a twenty-year base custodial sentence with ten years of parole ineligibility was manifestly excessive, and that the imposition of consecutive sentences for two of the fourth-degree crimes violated the principles set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).
At the outset, we reject the argument that the consecutive sentences were improperly imposed on defendant. The record discloses that defendant received concurrent sentences for fondling and penetrating Lois on November 2. The consecutive sentences were imposed for the fondling of Carol in the separate incidents occurring on September 26 and October 1. These latter two crimes, although similar in nature, were committed at separate times to provide sexual gratification to defendant on disparate occasions. Thus the sentencing judge did not err in imposing separate, consecutive sentences for the commission of each crime. Id. at 643-44. The judge likewise did not err when she determined to impose the sentences for the crimes committed on Carol consecutively to the sentence imposed for the crimes committed on Lois. The crimes on Lois clearly involved a different victim and occurred on a different date.
We likewise find no basis to challenge the judge's determination to impose an extended-term sentence on defendant's conviction for second-degree sexual assault in this matter. The record discloses that in 1993, defendant was convicted of two counts of second-degree sexual assault, fourth-degree criminal sexual contact, and third-degree endangering the welfare of a child. A sentence of sixteen years in custody was imposed. As the result of this conviction, defendant was subject to Megan's Law, N.J.S.A. 2C:7-1 to -21, and later pled guilty to his failure as a sex offender to notify the police of a change of address, N.J.S.A. 2C:7-2d. Two indictable convictions for unlawful possession of a weapon and larceny preceded defendant's 1993 conviction. The conditions for imposition of an extended sentence pursuant to N.J.S.A. 2C:44-3a were thus met. Indeed, defense counsel appears to have conceded as much at sentencing, raising no argument in opposition to the State's motion for imposition an extended term.
However, as the State has noted in its brief, the sentence imposed by the trial court was illegal, requiring a remand for resentencing in light of the requirement of NERA that the court "fix a minimum term of 85% of the sentence imposed." N.J.S.A. 2C:43-7.2. State v. Meekins, 180 N.J. 321, 322 (2004)(noting that "[e]ffective June 29, 2001, the Legislature amended NERA to require the minimum parole ineligibility period to be calculated based upon the sentence actually imposed without regard to whether it was an ordinary or an extended sentence"); State v. Kearns, 393 N.J. Super. 107, 113 (App. Div. 2007) (holding because the NERA period of parole ineligibility is compulsory, the judge's failure to impose it rendered the sentence illegal); State v. Haliski, 140 N.J. 1, 6 (1995) (holding that an illegal sentence may be corrected at any time). We also note, without deciding, the potential applicability to this matter of N.J.S.A. 2C:43-6.4e (requiring defendants convicted of violating N.J.S.A. 2C:14-2 while serving a special sentence of parole supervision for life to serve their entire sentence). In light of our remand, we decline to address the remainder of defendant's sentencing arguments. We nonetheless direct the remand judge to review defendant's entire sentence in light of the real time consequences of the judge's sentencing decisions in this matter. State v. Marinez, 370 N.J. Super. 49, 58-59 (App. Div.); certif. denied, 182 N.J. 142 (2004); State v. Berardi, 369 N.J. Super. 445, 450-55 (App. Div. 2004), appeal dismissed, 185 N.J. 250 (2005).
The convictions are affirmed; the matter is remanded for resentencing.
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