On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-09-0888.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2009
Before Judges Lisa, Baxter and Alvarez.
Following a trial by jury, defendant James Pinnock was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1b(1) (count one); first-degree robbery, N.J.S.A. 2C:15-1a(2) and N.J.S.A. 2C:15-1a(3) (counts three and four); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), N.J.S.A. 2C:14-2a(5), and N.J.S.A. 2C:14-2a(4) (counts five, seven and eight); third-degree terroristic threats, N.J.S.A. 2C:12-3b (count nine); third-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count ten); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b (count eleven).*fn1
The trial judge imposed a sentence of thirty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one, first-degree kidnapping. He also imposed a fifteen-year NERA term on count three, concurrent to count one. Count four was merged into count three. On count five, the trial judge imposed a ten-year NERA sentence consecutive to counts one and three. Counts seven and eight were merged into count five. On count nine, the trial judge imposed a five-year term concurrent to count one. On count ten, the court imposed an eight-year sentence, subject to three years of Graves Act parole ineligibility, N.J.S.A. 2C:43-6(c), to run concurrent with count one. A five-year sentence was imposed on count eleven, to run concurrent with count one. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm the judgment of conviction, but remand for a statement of reasons and reconsideration of sentence, and the issuance thereafter of an accurate judgment of conviction.
The facts developed at trial are as follows. At approximately 10:30 p.m. on August 7, 2003, S.M., a college student, began her walk home from a friend's house while listening to her CD player. She decided to take 9th Avenue in Paterson, rather than 10th Avenue, because it was quieter. Her mother called her cell phone to offer her a ride home; she declined because she was so near her destination. Immediately after this conversation, S.M. noticed someone behind her. She looked up and saw a second man in front of her pointing a gun at her face. The man with the gun was approximately five-foot-four in height, while the man behind her was approximately six feet tall. S.M. later identified the taller man as defendant.
The shorter individual, co-defendant Andrew Morgan, demanded that S.M. surrender her money. As she began to go through her pockets, defendant took S.M.'s book bag and began to rummage through it. S.M. handed the men her cash, but defendant motioned to Morgan to take S.M. behind a nearby house. They walked her the length of the driveway from the sidewalk into a dark backyard.
Once there, the men instructed S.M. to leave her CD player near the porch steps and to lie down on the ground. She was forced to pull down her pants while Morgan continued to hold the gun. Defendant "bent down and tried to have sex with" S.M. As she described it, defendant's penis "touched my -- like my --lips down there." When asked by the prosecutor if defendant was able to engage in full intercourse with her, S.M. said no. Once defendant was finished, Morgan, who had forced S.M. to perform fellatio, unsuccessfully attempted to engage in vaginal intercourse with S.M. He then turned her around, and penetrated her anally, as S.M. put it, "he put it in a little bit." During the entire episode the gun was held either by Morgan or by defendant.
Finally, defendant told Morgan to get up because they were going to take S.M. to another location. Defendant ran ahead down the driveway towards the sidewalk as Morgan followed, holding onto S.M.'s arm. S.M. asked Morgan if they were going to kill her; he told her to talk to his friend. He called out to defendant, who said, "[w]e're going to go back to the rest and, after I f--k you, then I'm going to kill you." As they approached the sidewalk, defendant insisted that S.M. hold hands with him, at which time she began to plan her escape. She testified at trial:
I was just thinking that I was going to die. And I . . . thought to myself that if I was going to die, I'd rather have him shoot me while I was running away rather than my mother have to find me in some ditch somewhere like raped and dead. So, I just started thinking that I was going to die anyway, so I might as well think of a way to get out of it.
S.M. told defendant that she needed to wipe her eyes because since it was raining she could not see. He assented, and as she lifted up her arm, she pulled away and ran into the street. Cars swerved to avoid striking her and she began to scream. Meanwhile, defendant and Morgan fled. S.M. arrived at a nearby friend's home, rang the doorbell, yelled for help, and hid in the shrubbery. S.M.'s mother and step-father arrived immediately after she called them, and they took her to one hospital emergency room and then a second, as the first facility did not have a rape kit.
Two days later, when defendant and Morgan were arrested on an unrelated matter, a revolver was found in Morgan's possession. Defendant waived his Miranda*fn2 rights and admitted his involvement in the incident with S.M., asserting that the victim had performed fellatio upon him and upon Morgan. He claimed he thought the sexual encounter was consensual because at some point during the incident, S.M. told Morgan that he could put away the gun.
After their arrests, S.M. identified both defendant and Morgan from a photo array. The scant DNA samples taken during the administration of the rape kit indicated defendant could not be positively excluded as a contributor of the DNA, although Morgan was excluded.
During the charge conference, the trial judge advised that he would not instruct the jury as to attempted aggravated sexual assault but would charge as to the lesser-included offense of sexual assault, N.J.S.A. 2C:14-2c, and aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. He considered S.M.'s testimony unequivocal that Morgan's sexual assaults resulted in penetration. Additionally, defendant had admitted in his statement to police that he had engaged in fellatio with the victim. Defense counsel concurred with the decision not to charge attempted aggravated sexual assault, as he planned to argue in summation that the State had failed to prove penetration, and therefore the "failure to instruct attempt in a way might be actually beneficial to my client." In addition to the Model Jury Charge for aggravated sexual assault, sexual assault and criminal sexual contact, the judge instructed the jury as to accomplice liability. On the verdict sheet, the jury indicated as to each count whether their decision was based on liability as a principal or an accomplice or both.
Count one of the indictment charged that defendant and Morgan committed "an act of kidnapping by unlawfully removing S.M. a substantial distance from the vicinity where she was found to facilitate the commission of aggravated sexual assault or flight thereafter, and the defendants did not release S.M. unharmed and in a safe place prior to apprehension." The trial judge said, in accord with the Model Jury Charge, that:
A person is guilty of kidnapping if he unlawfully removes another a substantial distance from the vicinity where she is found or if he unlawfully confines another for a substantial period with any of the following purposes: one, to facilitate the commission of any crime or flight thereafter; or two, to inflict bodily injury on or terrorize the victim.
In order for you to find the Defendant guilty of kidnapping, the State is required to prove each of the following two elements beyond a reasonable doubt: that the Defendant . . . unlawfully removed [S.M.], a substantial distance from the vicinity where she was found or; (b) unlawfully confined [S.M.] for a substantial period. So, it's A or B is the first element.
And the second element is that the removal or confinement was with the purpose to (a) facilitate the commission of any crime or the flight thereafter; or (b) to ...