On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. 06-01-0091.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2008
Before Judges Wefing, Parker and Yannotti.
Tried to a jury, defendant was convicted of kidnapping, N.J.S.A. 2C:13-1b, a crime of the first degree; attempted aggravated sexual assault, N.J.S.A. 2C:5-1; 2C:14-2a(3), a crime of the second degree; and aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, a crime of the third degree. The trial court sentenced defendant to twenty-five years in prison for kidnapping, subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and a consecutive nine years in prison for attempted aggravated sexual assault, again subject to NERA. The trial court also sentenced defendant to four years in prison for aggravated criminal sexual contact, to be served concurrently with the sentence for attempted aggravated sexual assault. The trial court also imposed fines and penalties. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm in part, reverse in part, and remand for further proceedings.
Defendant's victim was O.S., a twenty-one-year-old college student visiting the United States from Russia. On September 15, 2005, she decided to visit the Empire State Building in New York City. By mid-afternoon, she wanted to leave the area of the Empire State Building and go to Central Park to take photographs, but she was uncertain which subway train to take. She asked several passersby but no one could explain the best route to her. Defendant was standing nearby, and she approached him. He offered to drive her to Central Park in his white van which was parked on the street. She was somewhat hesitant but accepted his offer. She got into the rear of the van which was empty except for a black bag on which she sat. Defendant got into the driver's seat and drove off; his companion, Ronald Smith, sat in the passenger's seat.
When the trip took longer than O.S. had anticipated, she became concerned and asked defendant to simply drop her off at the nearest subway station and she would go home. Defendant responded that he had to make a delivery first and that he would drop her off after he had completed that task. The van crossed the George Washington Bridge and entered New Jersey, increasing O.S.'s sense of fear. Defendant eventually stopped the van on a small dark street in Ramsey.
Defendant, who testified in his own defense, said that during the trip he and O.S. talked a great deal about sexual matters, and he inferred that she would be willing to engage in sexual activity with him. He thus got out of the driver's seat and entered the rear of the van, where O.S. was sitting. O.S. denied that there was any conversation between them about sexual matters.
O.S. testified that defendant tried to force himself upon her and that she kept her legs crossed to prevent him from doing so. She said that a struggle ensued during which defendant touched her face, her shoulders and her breasts. She said that when defendant finally desisted, he offered to drive her home. When she refused, he pointed out a nearby house from which she could call a friend to come and fetch her.
O.S. said that when she was struggling with defendant she called out to Smith, the passenger, for help. Smith testified to the same effect. He also said that when it looked as if defendant was trying to undress O.S., he went to her aid, getting her out of the van and pointing out a nearby house where she could get help.
Defendant, on the other hand, said that he entered the rear of the van intending to solicit O.S. to perform oral sex upon him. He said that when she rejected the idea, he accidentally fell on top of her. He said he got up and apologized for misunderstanding the situation. He said he offered her money to call a cab and pointed out a nearby house from which she could make a call.
O.S. got out of the van and as she did so, she made a point to memorize the license plate of the vehicle. She went to the nearby house and rang the doorbell. She told the owner that someone had tried to rape her. She wrote down on a piece of paper the license plate she had memorized and called the police.
Detective Brian Huth of the Ramsey Police Department responded to the call and interviewed O.S. about what had occurred. He testified that although O.S. appeared upset and was shaking, she did not show any visible signs of having been assaulted.
Huth's investigation ultimately led him to consider defendant a suspect. He prepared a photo array and showed it to O.S. She immediately identified defendant as her assailant, and defendant was placed under arrest.
On appeal, defendant, through counsel, raises the following arguments:
THE JURY INSTRUCTIONS ON KIDNAPPING AND AN ANSWER TO A JURY QUESTION ON THE SAME SUBJECT WERE FUNDAMENTALLY FLAWED AND CLEARLY ERRONEOUS IN THAT THEY:
A) FAILED TO EXPLAIN THAT THE ISSUE OF WHEN DEFENDANT FORMED THE INTENT TO SEXUALLY ASSAULT THE VICTIM -- i.e., AFTER HE HAD ALREADY PARKED THE VAN IN WHICH HE AND THE VICTIM HAD TRAVELED, SHORTLY BEFORE THAT POINT, OR AT AN EARLIER TIME DURING THE ENCOUNTER --WAS A CRITICAL MATTER WHICH BORE DIRECTLY ON WHETHER A KIDNAPPING HAD BEEN COMMITTED; AND
B) PARTIALLY CHARGED A THEORY OF "SUBSTANTIAL CONFINEMENT" KIDNAPPING TO THE JURY DESPITE THE FACT THAT THAT THEORY WAS NOT IN THE INDICTMENT.
THE ISSUE OF TERRITORIAL JURISDICTION SHOULD HAVE BEEN CHARGED TO THE JURY. (Not Raised Below)
THE JURY INSTRUCTION ON ATTEMPTED AGGRAVATED SEXUAL ASSAULT WAS CONFUSING AND ERRONEOUSLY CHARGED THE JURORS THAT A "KNOWING" STATE OF MIND WOULD SUFFICE FOR THAT CRIME. (Not Raised Below)
THE CONVICTION FOR COUNT THREE SHOULD MERGE WITH THE CONVICTION FOR COUNT TWO.
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
Defendant's first contentions revolve around the jury charge the trial court delivered. We thus set forth the fundamental principles which must guide our analysis of his arguments.
Jury instructions must be understandable to jurors but also comprehensive enough to explain the law fully and correctly. State v. Koskovich, 168 N.J. 448, 507 (2001). Generally, errors in an instruction to the jury "are poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979). When an appellate court reviews a court's charge to the jury, it must read the charge as a whole, and not focus only on the portions which are challenged. State v. Wilbely, 63 N.J. 420, 422 (1973). When a defendant has not objected to the charge at the time it was given, an appellate court must determine whether the charge as given constitutes plain error, that is, whether there is a "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
Defendant's first claim of error with respect to the charge is that it failed to explain to the jury that a critical element in determining whether defendant had committed the crime of kidnapping was a determination of when defendant formed his intent to sexually assault O.S. Defendant was charged with kidnapping under N.J.S.A. 2C:13-1b(1), which creates two alternate theories of the crime.
A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:
(1) To facilitate commission of any crime or flight thereafter;
(2) To inflict bodily injury on or to terrorize the victim or ...