On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-08-1680.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Carchman and Ashrafi.
Following a jury trial, defendant was convicted of second- degree kidnapping, N.J.S.A. 2C:13-1b; six counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and N.J.S.A. 2C:14-2a(5); and six counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. Following imposition of sentence, defendant appealed. We affirmed the conviction but remanded for resentencing. State v. Marinez, 370 N.J. Super. 49 (App. Div.), certif. denied, 182 N.J. 142 (2004). On remand, defendant was sentenced to a prison term of fifteen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, with the sentences on the other counts to run concurrent. In addition, the judge imposed the mandated fines, penalties and Megan's Law restrictions. Thereafter, defendant filed a petition for post-conviction relief (PCR). In a comprehensive written opinion, Judge Carroll in the Law Division, denied the petition. Defendant appeals, and we affirm.
We quote the facts as set forth in Judge Carroll's opinion:
On October 1, 1999, the victim, a twenty-two year old female was working as a waitress at Jarolyn's Bar in Queens, NY. At the conclusion of her shift, approximately 5:45 a.m., the defendant asked the victim if she wanted a ride home so that she did not have to pay for a taxi. She accepted and entered the vehicle's front passenger seat. Two additional males got into the rear seats of the vehicle. Defendant drove one of the men home and the victim questioned when she would be taken home as they approached the George Washington Bridge. She began to yell and wave her arms at which time the male in the rear seat, later determined to be an individual named Forti, held her wrists from behind her to restrain her movement. The victim was taken to the Skyview Motel in Fort Lee, NJ. The defendant went to the office to register for a room while Forti secured the victim in the vehicle. The defendant provided his driver's license to the hotel clerk in order to obtain the room and a copy of his license was made before it was returned to him. The victim at this time was yelling and trying to get anyone's attention. Two cleaning persons were in the parking lot at some point. Thereafter, the victim was brought into the room and assaulted. Forti pulled off the victim's clothes, pushed her down onto the bed, and fondled her breasts and vagina while the defendant held her down. Forti then penetrated the victim's vagina with his penis. During this time, the defendant fondled her breasts and digitally penetrated her vagina. The victim continuously screamed and at one point people in the next room started to bang on the wall. Forti threatened the victim but the defendant stated that they should go because he registered for the room in his name and did not want to get caught. The victim got dressed and was led back to the vehicle. Forti threatened to kill the victim and the defendant offered her money and urged her not to call the police. Eventually, the victim was dropped off near her home.
When the victim got home, she showered and changed her clothes. At approximately 9:00 a.m., she called 911 and reported what happened. An officer of the NYPD responded to the victim's home to conduct an investigation. An EMS worker was summoned who performed a physical examination upon which bruising was discovered on the victim's wrists as well as a hematoma of the eye area. It was later learned that the incident actually occurred in Fort Lee, NJ at the Skyview Motel; thus Fort Lee police handled the remaining investigation.
Officers questioned the hotel clerk regarding the incident and the hotel clerk provided the copy of the defendant's identification. The victim gave a formal statement to police and identified defendant as Lingo, her boss at Jarolyn's Bar. The defendant was subsequently arrested and charged with kidnapping and aggravated sexual assault.
In his pro-se petition, defendant raised the following issues:
POINT I A. The Defendant, Morillo Marinez Was Denied His Right To Effective Assistance of Counsel Which Resulted In His Conviction And Severe Sentence When Trial Counsel failed to Call Any Witnesses, Failed To Challenge The Oral And Written Statements By Petitioner, All In Violation Of the Fifth, Sixth And Fourteenth Amendments To The State And Federal Constitutions, Requiring The Reversal Of The Conviction And An Order Granting Defendant A New Trial.
POINT II Petitioner Was Denied His Right To A Fair And Impartial Trial When The prosecutor Usurped Her Authority And Personally Attacked The Defenses' [sic] Only Witness, The Petitioner, Depriving Petitioner Of His Right To Testify In Violation Of The Fifth, Sixth and Fourteenth Amendments To Both The New Jersey And United States Constitutions, Requiring A Reversal Of His Convictions And A New Trial.
POINT III The Defendant, Morillo Marinez, Was Denied His Right To Trial By Jury When The Court Failed To Charge The Jury On N.J.S.A. 2C:2-3, Causation, Which Resulted In His ...