On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-10-2303.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Fuentes, Gilroy and Chambers.
Defendant Marty Ross was tried before a jury and convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(d) (counts two and nine); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts three and ten); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count four); third-degree criminal restraint N.J.S.A. 2C:13-2(a) (count five); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3, 4) (counts six and seven); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count eight); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count eleven); third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count twelve); third degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3) (count thirteen); and fourth-degree failure to register as a convicted sex offender, N.J.S.A. 2C:7-2(a) (count fourteen).
At sentencing, the court granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a. After merging count two with three, counts four and five with count one, and counts eight through ten with count six, the court sentenced defendant to a term of seventy years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the conviction for first-degree kidnapping; to concurrent terms of twenty years on the two convictions for second-degree sexual assault, counts six and seven, a concurrent term of five years on drug-related convictions, counts twelve and thirteen.*fn1
Finally, the court granted the State's motion to dismiss count fourteen, fourth-degree failure to register as a convicted sex offender.
Defendant now appeals raising the following arguments.
THE INDICTMENT WAS DEFECTIVE BECAUSE IT OMITTED THE THREE ELEMENTS THAT RAISE KIDNAPPING FROM A SECOND TO A FIRST DEGREE CRIME. THE TRIAL COURT'S CHARGE TO THE JURY ON FIRST DEGREE KIDNAPPING WAS DEFECTIVE BECAUSE IT OMITTED THE CULPABILITY REQUIREMENT AS REQUIRED BY THIS COURT'S DECISION IN STATE V. SHERMAN, 367 N.J. Super. 324 (APP. DIV.) CERTIF. DENIED, 180 N.J. 356 (2004). DUE TO THE TWO ERRORS THE PROPER REMEDY IS TO VACATE THE KIDNAPPING CONVICTION AND DISMISS COUNT ONE OF THE INDICTMENT. (Not Raised Below)
IN LIGHT OF THE FACT THAT THE COMPLAINANT IMMEDIATELY DIVULGED THAT SHE HAD BEEN SEXUALLY ASSAULTED, THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE PROSECUTOR TO INTRODUCE MULTIPLE INSTANCES OF "FRESH COMPLAINT" EVIDENCE; ...