On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-10-0134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2009
Before Judges Reisner and Yannotti.
Defendant Andres Sanabria appeals from an order entered by the trial court on April 7, 2008, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant was charged along with co-defendants Percy Selles (Selles) and Ariel Fernandez (Fernandez) with first-degree kidnapping, multiple counts of sexual assault, robbery, burglary weapons offenses, and other crimes. Defendant was tried separately before a jury.
At the trial, the State presented evidence which established that on June 6, 2000, Selles and Fernandez abducted a woman at gunpoint from a street in Elizabeth, New Jersey, and took her by force to a residential complex containing several bedrooms, a living room, kitchen and bathroom. Defendant rented one of the bedrooms and was present in the living room when Selles and Fernandez arrived with the victim.
Selles and Fernandez took the victim into a bedroom and brutally beat, vaginally raped and sodomized her. They took the victim's keys and left to steal items from her apartment, which was located nearby. While Selles and Fernandez were away, the victim asked defendant to let her leave but he refused. Selles and Fernandez returned and apparently were angry because the victim had so little of value to steal.
Selles and Fernandez again raped the victim, orally and anally. They sexually assaulted her with a stick that had a nail hammered into it. They told defendant to bring them a bottle and he complied. Selles and Fernandez sexually assaulted the victim with the bottle and threatened to kill her if she reported the incident to the police. Selles and Fernandez left to purchase some drugs.
The victim again asked defendant if she could leave. Defendant told her that she could leave but only after she had sex with him. The victim complied and performed oral sex upon defendant. Thereafter, defendant had vaginal intercourse with the victim. Defendant then let the victim leave.
The jury found defendant guilty of first degree kidnapping, N.J.S.A. 2C:13-1(b); eight counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); two counts of second degree sexual assault, N.J.S.A. 2C:14-2(c)(1); first degree robbery, N.J.S.A. 2C:15-1; second and third-degree burglary, N.J.S.A. 2C:18-2; fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second degree conspiracy to commit various offenses, N.J.S.A. 2C:5-2. The trial judge, Judge Stuart L. Peim, sentenced defendant to an aggregate twenty-two years of imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed and raised the following arguments:
THE JURY INSTRUCTION DID NOT ADEQUATELY CONVEY TO THE JURY THE ...