On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1400.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2009
Before Judges Grall and Messano.
Defendant Jamie Guaman appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree conspiracy to commit aggravated sexual assault, N.J.S.A. 2C:5-2 and 2C:14-2(a)(3); first-degree aggravated sexual assault through the use of force or coercion while aided or abetted by another, N.J.S.A. 2C:14-2(a)(5); first-degree aggravated sexual assault during the commission of a kidnapping, N.J.S.A. 2C:14-2(a)(3); first-degree kidnapping with the purpose to facilitate a sexual assault, N.J.S.A. 2C:13-1(b)(1); and third-degree criminal restraint, N.J.S.A. 2C:13-2. At sentencing, the conspiracy conviction was merged with one of the aggravated sexual assault convictions, and the criminal restraint conviction was merged with the kidnapping conviction. The judge imposed two concurrent, fifteen-year sentences on the aggravated sexual assault convictions, and a consecutive, twenty-year term of imprisonment on the kidnapping conviction. Each sentence included an 85% period of parole ineligibility pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2.
Defendant raises the following arguments on appeal:
THE INTRODUCTION OF INADMISSIBLE EXPERT TESTIMONY DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., ART. I, ¶¶ 1, 9, AND 10. (Not Raised Below)
THE IMPOSITION OF CONSECUTIVE SENTENCES ON THE KIDNAPPING AND AGGRAVATED SEXUAL ASSAULT COUNTS WAS NOT JUSTIFIED AND LED TO AN OVERALL SENTENCE THAT WAS MANIFESTLY EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction. As to defendant's sentence however, we remand the matter to the trial court for further proceedings consistent with this opinion.
We briefly recount the salient testimony at trial. Shortly after midnight on February 24, 2003, T.S. was walking from Penn Station in Newark to her home on Lafayette Street. She observed a van moving slowly and apparently following her. Growing increasingly concerned for her safety, T.S. attempted to dial 911 on her cell phone. As she did, a man forcefully lifted her into the van, and she was driven to a secluded street.
T.S. realized there was more than one other individual in the van; she attempted to fight off her assailants, but was unable to do so. Because of the lack of lighting, she could not identify her attackers. At least two individuals sexually penetrated her vaginally; one additionally penetrated her anally. A third man attempted to force T.S. to perform oral sex upon ...