On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
Defendant was charged with various offenses as a result of having been found to have entered into the female victim's home without consent. The evidence also revealed that following his entry into the home, defendant punched, sexually molested, threatened, and stole from the victim.
At the conclusion of a trial, defendant was convicted of: second-degree burglary, N.J.S.A. 2C:18-2b(1); third-degree criminal restraint, N.J.S.A. 2C:13-2a; two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3b; third-degree theft, N.J.S.A. 2C:20-3a; and third-degree terroristic threats, N.J.S.A. 2C:12-3a. The trial judge sentenced defendant to a seven-year prison term on the burglary conviction, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, and concurrent four-year terms on all other convictions, except to the fourth-degree theft conviction, as to which the judge imposed a concurrent eighteen-month term.
Defendant appealed, posing the following arguments for our consideration:
I. THE COURT ERRED IN PERMITTING OFFICER VARGAS TO TESTIFY TO HIS "CONCLUSION" THAT ANY SEXUAL CONTACT BETWEEN [THE VICTIM] AND THE INTRUDER HAD NOT BEEN CONSENSUAL.
II. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE COURT REPEATEDLY AND IMPROPERLY ADVISED THE JURY THAT THE CASE WAS "UNCOMPLICATED," THUS BLURRING THE LINE OF DEMARCATION BETWEEN THE VARIOUS CHARGES.
III. THE COURT ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE CRIMINAL RESTRAINT CHARGE. IN THE ALTERNATIVE, THAT CHARGE SHOULD HAVE MERGED INTO THE SEXUAL CONTACT CHARGES FOR SENTENCING PURPOSES.
We find insufficient merit in any of these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding Points I and III.
In Point I, defendant argues that it was improper for the State to elicit from an investigating police officer that the sexual contact between defendant and the victim was not consensual. Specifically, defendant complains of the following testimony given by the police officer:
Q: . . . Based upon the nature of your questions and what was in your investigation, were you able to ascertain ...