On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 99-01-0064.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2008
Before Judges Carchman and Sabatino.
Defendant Kevin D. Smith was convicted after a March 2001 jury trial of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and a related disorderly persons offense. He appeals, on various grounds, the Law Division's order of May 18, 2004, denying his petition for post-conviction relief ("PCR"). We affirm the order in most respects, but remand to the Law Division to consider defendant's claims for relief solely relating to the State's trial proofs concerning a replica handgun seized by the police from the shared residence of defendant and the victim.
We have previously detailed the evidence at trial in our unpublished opinion affirming defendant's conviction on direct appeal. See State v. Kevin D. Smith, No. A-1533-01T4 (App. Div. June 4, 2003), certif. denied, 178 N.J. 30 (2003). Briefly stated, the sexual assault arose out of a long-term dating relationship between defendant and the victim, B.K., which began in the early 1990s. Although their intimate relationship had ended by the fall of 1998, defendant continued to reside with B.K. in her townhouse. Meanwhile, B.K. had become romantically involved with another man. B.K. told defendant in November 1998 about her new boyfriend, and she rejected defendant's entreaties to reconsider. She requested defendant to move out, but he was unable to do so immediately because he lacked a job and another place to live.
On November 15, 1998, B.K. returned to her townhouse from dinner. Defendant accosted her and pulled her upstairs to her bedroom. According to B.K.'s testimony, defendant then penetrated her anally with his fingers. B.K. broke free and ran downstairs. Defendant followed B.K. downstairs, and placed what appeared to be a handgun to the back of her head. After she screamed and told him to leave, defendant put the gun to his own head and threatened to pull the trigger. At that point, a policeman arrived in a squad car, having been alerted to the situation by a neighbor who had heard B.K.'s screams. The patrolman arrested defendant.
Defendant was subsequently charged in a single-count indictment with second-degree sexual assault. He was also separately charged with a disorderly persons offense of criminal mischief, N.J.S.A. 2C:17-3(a)(2). A related drug paraphernalia charge was dismissed by the court.
After a four-day jury trial, defendant was convicted of the sole count in the indictment. The trial judge separately found defendant guilty of the disorderly persons offense. Defendant was sentenced to eight years of imprisonment on the sexual assault, subject to an 85% period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. A six-month concurrent prison term was imposed for the disorderly persons offense.
Defendant filed a direct appeal of his conviction, in which he raised the following arguments:
THE ADMISSION OF DEFENDANT'S OTHER CRIMES OR WRONGDOINGS CONSTITUTES PLAIN ERROR. (NOT RAISED BELOW).
THE OMISSION OF A LIMITING INSTRUCTION AS TO THE OTHER CRIMES OR WRONGDOINGS CONSTITUES PLAIN ...