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State v. Schuster

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 6, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALLAN SCHUSTER, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. 06-01-0091.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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:

POINT I

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.

(Not Raised Below)

POINT II

THE ISSUE OF TERRITORIAL JURISDICTION SHOULD HAVE BEEN CHARGED TO THE JURY. (Not Raised Below)

POINT III

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)

POINT IV

THE CONVICTION FOR COUNT THREE SHOULD MERGE WITH THE CONVICTION FOR COUNT TWO.

POINT V

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

II.

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)).

III.

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.

The statute provides:

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 another; [Ibid.]

Thus, one may be guilty of kidnapping either by way of asportation, i.e., removal, or by way of confinement. Defendant's indictment recited that he had "remove[d] O.S. a substantial distance from the vicinity where she was found, with purpose to facilitate the commission of a crime or flight thereafter and/or inflict bodily injury on or to terrorize O.S. or another, and did fail to release [her] unharmed and/or in a safe place prior to apprehension . . . ." He was thus charged with asportation kidnapping.

Defendant contends that if the jury were to determine, based upon his testimony, that he only formed the intent to sexually assault O.S. when he parked the van in Ramsey, he would not have satisfied the asportation element of kidnapping. He argues it was prejudicial error on the part of the trial court not to make this clear to the jury.

The court originally instructed the jury on this issue in the following manner:

In order for you to find the defendant guilty of kidnapping, the State is required to prove each of the following two elements to you beyond a reasonable doubt: One, that the defendant, Allan Schuster, unlawfully removed O.S. a substantial distance from the vicinity where she was found, and B, that the removal was with the purpose to inflict bodily injury on or to terrorize the victim or another; or that the removal was with the purpose to facilitate commission of any crime or flight thereafter.

In relation to the first element you will note that I have used the term "unlawfully removed".

A removal is "unlawful" if it is accomplished by force, threat or deception.

When the removal of a victim is from a place other than the victim's residence or place of business, the removal must be to another place which is a substantial distance from the vicinity from which the victim was removed. However, for this purpose a "substantial distance" is not measured in feet, yards or miles, nor by any other standard of linear measurement. Rather, a "substantial distance" is one that is significant, in that it is more than incidental to the underlying crime and substantially increases the risk of harm to the victim.

That increased risk of harm must not be trivial. If the victim is removed only a slight distance from the vicinity from which he or she was removed and such movement does not create the isolation and increased risk of harm that are at the heart of the kidnapping statute, then you should not convict the defendant of the kidnapping charge.

Defendant made no objection to this portion of the charge.

During the course of its deliberations, the jury posed the following question to the trial court: "Is criminal intent required at the time of removal or can it occur over time?" Defense counsel requested that the trial court tell the jury that the criminal intent had to be formed at the time of removal for defendant to be guilty of kidnapping. The trial court disagreed and refused to do so. It told the jury that "criminal intent can occur over time. Can. But it's a fact based determination that you as members of the jury have to determine individually and collectively." The jury returned its guilty verdict approximately one and one-half hours after receiving this answer. Although we find the trial court's brief response not particularly illuminating and not directly responsive to the jury's question, we have concluded, after a careful review of the trial record, that it did not constitute reversible error in the context of this case.

It is clear from the transcript of the oral argument as to how to reply to the jury's question that the court's answer was based upon State v. Arp, 274 N.J. Super. 379 (Law Div. 1994). Defendant in that case was charged with kidnapping, aggravated sexual assault, and aggravated criminal sexual contact and moved to dismiss the indictment. Id. at 380. The record before the grand jury indicated that the victim had voluntarily met with defendant, and the two spent several hours together. He drove her near her home, and she resisted the sexual advances he made in the car; he began to choke her and drove off, refusing to let her leave his car. Id. at 381. He sexually assaulted her over the next several hours, but she eventually managed to break loose. Ibid. Defendant argued that the victim had voluntarily entered his car and that there was no asportation apart from the underlying crimes that were charged. Id. at 382. The trial court denied his motion, finding that the act of refusing to let the victim leave the car and driving off was sufficient to satisfy the element of asportation.

It is clear that there is not a defined measure of distance that a victim must be transported for purposes of the kidnapping statute. State v. Masino, 94 N.J. 436, 446-47 (1983). In that case, defendant removed the victim from her car and dragged her across the street, where he sexually assaulted her. The Supreme Court found that this was sufficient to support his conviction for kidnapping.

It would certainly be convenient to fix a linear distance for asportation. It would also be arbitrary and irrational . . . .

We hold that one is transported a "substantial distance" if that asportation is criminally significant in the sense of being more than merely incidental to the underlying crime. That determination is made with reference not only to the distance travelled [sic] but also to the enhanced risk of harm resulting from the asportation and isolation of the victim. That enhanced risk must not be trivial. [Ibid.]

State v. Purnell, 394 N.J. Super. 28 (App. Div. 2007), is illustrative. In that case, defendant instructed his victim to go up one flight of stairs in an apartment building and assaulted her on the landing. Id. at 34. That constituted a "substantial distance" for purposes of the kidnapping statute because it exposed the victim to an increased risk of harm. Id. at 53.

Having carefully reviewed the trial record in this matter, we have concluded that the court's instructions to the jury, and its response to the jury's question, do not constitute plain error under the facts of this matter. We reach this conclusion for several reasons.

Defendant testified to the jury, outlining his version of what transpired. By its verdict, the jury rejected his contention that what had occurred was no more than his having misunderstood the conversation which had taken place between O.S. and himself.

He clearly told the jury, moreover, that while searching for the train station he pulled his van off the main road to a street with no traffic. He said he did this for two reasons: to check his notes on directions but also to "talk to O[] in the back." When asked what he wanted to discuss with her, he responded, "I basically wanted to proposition her and from the conversations we had I thought that this was something that she would want to do." Thus defendant's testimony established that he drove the van to a quiet location with the intent to approach O.S. sexually. Doing so increased her potential risk of harm and thus satisfied the element of asportation.

IV.

Defendant raises a second point of error with respect to the jury's charge on kidnapping. As we have noted, defendant was charged with kidnapping under the removal prong of the statute. He was not charged with kidnapping under the confinement prong of the statute. The trial court proceeded nonetheless to charge the jury both with respect to removal and with respect to confinement. Counsel made no objection to this charge when it was given.

Undoubtedly, the trial court should not have included that material in its charge. Our review of the record convinces us, however, that its inclusion does not constitute plain error. We reach this conclusion because of the detailed question which was submitted to the jury on the verdict sheet. The first question asked the jury:

How do you find as to Count One of the Indictment charging that the defendant, ALLAN SCHUSTER, on or about September 15, 2005, in the Borough of Ramsey, in the County of Bergen, and within the jurisdiction of this court, or in some other municipality and county within the jurisdiction of this court, did unlawfully remove O.S. a substantial distance from the vicinity where she was found, with purpose to facilitate the commission of a crime or flight thereafter and/or inflict bodily injury on or to terrorize O.S. or another.

To this, the jury responded, "Guilty."

If the verdict sheet had merely asked whether the jury found defendant guilty or not guilty of the crime of kidnapping, we would be compelled to reverse this conviction because it would be impossible to determine the basis of the jury's finding. Here, however, the only option provided to them on the verdict sheet was kidnapping through asportation. The trial court's discussion of kidnapping through confinement was surplusage and harmless error.

V.

Defendant's next contention with respect to the trial court's charge is that it was deficient for not including an instruction on the question of territorial jurisdiction. Again, defendant made no objection to the charge and raises this question as plain error.

A state can only enforce its criminal laws when it has territorial jurisdiction, i.e., the charged crime occurred within its borders. State v. Denofa, 187 N.J. 24, 36 (2006). New Jersey has territorial jurisdiction in either of the following instances:

(1) Either the conduct which is an element of the offense or the result which is such an element occurs within this State;

(2) Conduct occurring outside the State is sufficient under the law of this State to constitute an attempt to commit a crime within the State[.]

[N.J.S.A. 2C:1-3a(1)-(2).]

Territorial jurisdiction, however, is not a material element of a crime. Denofa, supra, 187 N.J. at 40. If a defendant fails to request a territorial jurisdiction charge, as occurred here, a trial court is obligated to include the charge sua sponte only "if the record clearly indicates a charge is warranted." Id. at 42 (citations omitted).

Here, the record does not clearly indicate a dispute about territorial jurisdiction. If defendant formed the intent in New York to transport O.S. for purposes of sexually assaulting her, that intent carried through during his travels in New Jersey. New Jersey would have jurisdiction. If he formed the intent after entering New Jersey, New Jersey would still have jurisdiction. We are satisfied the location of the crime was not a material element, and the trial court was not obliged to charge the jury on territorial jurisdiction.

VI.

Defendant also contends that the court's charge on attempted aggravated sexual assault was prejudicially erroneous. As with his previous arguments, he made no objection to the charge at the time of trial and thus must establish plain error. Here, defendant has succeeded, in our judgment.

The State, in its brief, concedes that the court's charge was "not a paragon of clarity." A review of the charge convinces us that it had the clear capacity to confuse the jury.

After reading the second count of the indictment to the jury, the trial court read to the jury the statutory definition of aggravated sexual assault. It then told the jury that to convict defendant of this charge, the State had to prove that defendant attempted to commit an act of sexual penetration with another and acted knowingly. It outlined for the jury the mental state of knowingly. The trial court told the jury that if it found that the State had proved beyond a reasonable doubt that defendant knowingly committed an act of sexual penetration during the commission of a kidnapping, it should find defendant guilty of aggravated sexual assault. Defendant, however, was not charged with aggravated sexual assault.

The trial court then proceeded to give the following instruction:

The indictment charges that the defendant attempted to commit the crime of aggravated sexual assault.

Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act of omission constituting a substantial step in the course of conduct planned to culminate in his commission of the crime.

Thus, in order to find the defendant guilty of a criminal attempt, the State must prove two elements beyond a reasonable doubt.

First, that the defendant had the purpose to commit the crime of aggravated sexual assault. A defendant acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.

The second element is that the defendant purposely did or omitted to do anything, which, under the circumstances as a reasonable person would believe them to be, is an act or omission that is a substantial step in the course of conduct planned to culminate in his commission of the crime.

However, the step taken must strongly show the defendant's criminal purpose. That is, the step taken must be substantial and not just a very remote preparatory act, and must show that the accused has a firmness of criminal purpose.

If you find that the State has proven each of these elements beyond a reasonable doubt, then you must find the defendant guilty of an attempt to commit aggravated sexual assault. However, if you find that the State failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of an attempt to commit aggravated sexual assault.

I have previously charged you on the law of attempt. Please consider the definition of attempt with this charge.

This instruction did not clearly set out for the jury that the court had now taken up the crime with which defendant was charged, attempted aggravated sexual assault. It contained no explanation of the distinction between a completed act, which the trial court had just finished outlining, and an attempt to perform that act. It did not point out to the jury the distinction between the required mental state of purposeful conduct for attempt and a lesser mental state for the underlying crime.

The model jury charge on attempt contains the following directive:

[If "knowing" or lesser culpability would have sufficed for the completed crime, add the following.]

Before I explain the definition of an attempt, let me explain an important difference between an attempt and the crime of ______. Although it is possible to commit the crime of _____ with [knowledge,/recklessness], to be guilty of an attempt the defendant must act with purpose. In other words, the defendant must have the purpose to commit the crime of ____, in order to be guilty of attempting it.

While the trial court was not required to use those precise words, it should have made sure the jury was aware of this critical distinction. The charge, however, is silent on this distinction.

Further, the model jury charge on attempt sets out three scenarios which would support a conviction for attempt: 1) that a defendant purposely engaged "in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be"; 2) that a defendant did or "omit[ted] to do anything with the purpose of causing [result] without further conduct" on defendant's part; or 3) that a defendant purposely did or "omit[ted] to do anything which, under the circumstances as a reasonable person would believe them to be, [would be] an act of omission constituting a substantial step in the course of conduct planned to culminate" in the crime. The model jury charge instructs the trial court to select one of those three alternatives. Here, however, the trial court lumped the three together, without regard to the factual record created at trial. It is, for instance, not immediately clear to us why the concept of "omitting to do anything" was included in this charge on attempted aggravated sexual assault.

We can have no confidence from this instruction that the jury had an accurate understanding of the elements of attempted aggravated sexual assault, how it was to be distinguished from aggravated sexual assault, and what the State had to prove beyond a reasonable doubt to find defendant guilty.

We recognize, as the State points out in its responding brief, that the verdict sheet did include a reference to purposeful conduct. And we are cognizant that we rejected one of defendant's claims of error with respect to the charge on kidnapping because of the precision of the verdict sheet. We do not consider the issues to be comparable, however. Here, the charge contains manifest confusion about the required elements of the crime; we cannot consider one word on a verdict sheet sufficient to remove that confusion and correctly clarify the issue for the jury. We are constrained to reverse defendant's conviction for attempted aggravated sexual assault.

VII.

Defendant raises no question with respect to his conviction for aggravated criminal sexual contact. Our reversal of his conviction for attempted aggravated sexual assault, however, makes it unnecessary for us to address his contention that his conviction for aggravated criminal sexual contact should merge into his conviction for attempted aggravated sexual assault.

VIII.

The final issue counsel raised on defendant's behalf is that the sentence imposed by the trial court was manifestly excessive. An appellate court reviewing a sentence should determine if the proper sentencing guidelines were followed by the court. State v. Natale, 184 N.J. 458, 489 (2005); State v. Roth, 95 N.J. 334, 364-65 (1984). As long as a sentence is supported by the proper balance of aggravating and mitigating factors, which in turn are supported by the evidence, "[a]n appellate court is bound to affirm a sentence . . . ." State v. O'Donnell, 117 N.J. 210, 215 (1989). Here, we can find no basis to interfere with the quantum of the sentence imposed by the trial court for kidnapping and aggravated criminal sexual contact.

The State has noted, however, that certain of the fines imposed by the trial court must be adjusted. The trial court imposed a $2,400 Sexual Assault Nurse Examiner penalty under N.J.S.A. 2C:43-3.6. That statute imposes an $800 penalty for each conviction for a sex offense. Kidnapping, however, is not a predicate offense under the statute. If defendant is retried and convicted of attempted aggravated sexual assault, he is subject to a $1,600 penalty under N.J.S.A. 2C:43-3.6. Otherwise, he is subject to a penalty of $800.

Further, the trial court assessed a penalty of $1,000 for the Sex Crime Victim Treatment Fund under N.J.S.A. 2C:14-10. That statute imposes a $1,000 penalty for a conviction for a second-degree sex offense and a $750 penalty for a third-degree sex offense. If defendant is retried and convicted of attempted aggravated sexual assault, he is subject to a penalty of $1,750 under this statute. Otherwise, he is subject to a penalty of $750.

Finally, the trial court imposed a $200 surcharge under N.J.S.A. 2C:43-3.7. Attempted aggravated sexual assault is not a predicate offense under that statute; defendant is subject only to a $100 surcharge.

IX.

Defendant has filed a pro se supplemental brief in which he raises the following additional arguments:

POINT I

DEFENDANT'S CONVICTIONS FOR FIRST-DEGREE KIDNAPPING AND ATTEMPTED AGGRAVATED SEXUAL ASSAULT WERE CONTRARY TO THE SUFFICIENCY OF EVIDENCE AS PRESENTED BY THE STATE.

POINT II

THE INCONSISTENT AND ERRONEOUS KIDNAPPING JURY INSTRUCTIONS IMPROPERLY RELIEVED THE STATE OF THE BURDEN OF PROVING BOTH ELEMENTS NECESSARY TO OBTAIN A FIRST DEGREE CONVICTION.

POINT III

THE FIRST DEGREE KIDNAPPING CHARGE WAS DEFICIENT IN THAT IT DID NOT INSTRUCT THE JURY THAT THE STATE WAS REQUIRED TO PROVE DEFENDANT KNOWINGLY CAUSED PHYSICAL, EMOTIONAL, OR PSYCHOLOGICAL HARM TO VICTIM OR KNOWINGLY RELEASED VICTIM IN AN UNSAFE PLACE.

POINT IV

PROSECUTOR'S DEROGATORY REMARKS ABOUT DEFENDANT PERSONALLY AND THE INTERJECTION OF FACTS INCONSISTENT WITH THE TRIAL EVIDENCE DURING SUMMATION DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS.

POINT VI

INEFFECTIVE ASSISTANCE BY THE COURT-APPOINTED COUNSEL DURING PLEA NEGOTIATIONS DEPRIVED THIS DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO BE INFORMED OF THE NATURE OF THE ACCUSATIONS AGAINST HIM, AND DENIED HIM THE OPPORTUNITY TO TAKE ADVANTAGE OF A FAVORABLE PLEA AGREEMENT.

POINT VII

OTHER ERRORS AND/OR OMISSIONS BY COURT-APPOINTED DEFENSE COUNSEL WAS SO DEFICIENT THAT PREJUDICE TO THE DEFENDANT MUST BE PRESUMED.

POINT VIII

CONSECUTIVE SENTENCE FOR COUNT TWO WAS IMPROPER.

Defendant's first point is barred because he did not make a motion for a new trial on the ground that there was insufficient evidence to support a conviction. R. 2:10-1. Even if we were to consider the argument, we would reject it. The jury was presented with a clear factual dispute as to what transpired. If it accepted the State's proofs, as it did, there was ample evidence of defendant's guilt.

Defendant in his pro se supplemental brief also complains of two portions of the court's charge on kidnapping.

He first complains that the charge was incorrect by not explaining to the jury that defendant could only be convicted of first-degree kidnapping if he both harmed the victim and released her in an unsafe place. Kidnapping is generally a crime of the first degree; N.J.S.A. 2C:13-1c provides that it is a crime of the second degree if the "actor releases the victim unharmed and in a safe place prior to apprehension . . . ." We reject defendant's argument. The Supreme Court has clearly stated that either harming the victim or releasing the victim in an unsafe place is sufficient to support a conviction for first-degree kidnapping. State v. Federico, 103 N.J. 169, 174 (1986).

Defendant also contends the trial court committed plain error when it did not instruct the jury that it had to find that defendant acted "knowingly" in harming O.S. and in releasing her in an unsafe place. Defendant posits his argument on our opinion in State v. Sherman, 367 N.J. Super. 324 (App. Div.), certif. denied, 180 N.J. 356 (2004). We find no error in the factual complex of this matter. The jury found defendant guilty of aggravated criminal sexual contact; perforce it must have concluded that defendant knowingly harmed O.S.

The next argument defendant asserts in his pro se supplemental brief is that the prosecutor's summation contained prejudicial remarks that deprived him of a fair trial. We disagree. "Prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). A prosecutor's first obligation, however, is to pursue justice and not obtain a conviction through improper methods. State v. Goode, 278 N.J. Super. 85, 91-92 (App. Div. 1994). A prosecutor "may strike hard blows, [but not] foul ones." State v. Feaster, 156 N.J. 1, 59 (1998), cert. denied, Kenney v. State, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935)).

We have reviewed carefully the prosecutor's summation. We find nothing that would warrant reversing defendant's convictions. The prosecutor's comments were grounded in the evidence and were aimed at convincing the jury that the evidence demonstrated defendant's guilt.

We reject as well defendant's next contention in his pro se supplemental brief of cumulative error. We have identified the error which, in our judgment, mandates reversal of defendant's conviction for attempted aggravated sexual assault. Nothing within that error tainted the remainder of defendant's trial. State v. Orecchio, 16 N.J. 125, 129 (1954).

Defendant's next two points revolve around his contention that he was deprived of the effective assistance of counsel. We decline to address the merits of his assertions. Claims of ineffective assistance of counsel are generally best addressed through petitions for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).

Defendant's final point is that the trial court erred when it imposed a consecutive sentence for his conviction for attempted aggravated sexual assault. We decline to address that contention as well in light of our reversal of that conviction.

Affirmed in part, reversed in part, and remanded for further proceedings.

20081106

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