On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-0496.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2010
Before Judges Sabatino and J. N. Harris.
After a jury trial, defendant Angel Gaud was found guilty of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b; third-degree burglary, N.J.S.A. 2C:18-2; and simple assault, N.J.S.A. 2C:12-1a. Defendant was acquitted of certain more severe offenses that had been charged in the indictment, including first-degree aggravated sexual assault, and several second-degree offenses. At sentencing, the trial court merged the burglary and fourth-degree sexual contact conviction into the conviction for third-degree aggravated criminal sexual contact. It imposed a three-year prison term, along with Megan's Law registration obligations and parole supervision for life, pursuant to N.J.S.A. 2C:7-2 and N.J.S.A. 2C:43-6.4, plus various fines and penalties.
Defendant now appeals, alleging that the trial judge erred in precluding his trial counsel from cross-examining the victim about certain accusations that she had made about him to the police after the wrongful sexual contact and burglary had occurred. Defendant also argues that his sentence was excessive and that the judge should have applied a presumption of nonincarceration. For the reasons stated in this opinion, defendant's arguments are unpersuasive and we accordingly sustain his convictions and sentence.
According to the State's proofs at trial, the underlying offenses arose out of defendant's retaliatory acts as a jealous ex-lover. The testimony reflects that defendant and the victim, Z.N., had an eleven-year dating relationship and two children together. At the time of the charged offenses, they were separated and Z.N. apparently had an outstanding domestic violence restraining order against defendant.
On the morning in question, December 23, 2006, Z.N. received a telephone call at her apartment at approximately 7:30 a.m., with the caller ID indicating that the call was coming from defendant. When Z.N. answered the call, she did not receive an audible response from the caller. Z.N. hung up and immediately called the defendant's cell phone number. According to her testimony, he picked up the call but did not speak. Z.N. had gone to dinner with her new boyfriend the previous night, and the two of them had spent the night together at her apartment.
About five or ten minutes after the telephone call, defendant arrived at Z.N.'s apartment door. He broke the security chain on the door to get inside. Z.N.'s new boyfriend had left earlier and she was alone in the apartment. At that point, defendant grabbed Z.N.'s wrists and dragged her into the bedroom. He then accused her of having sex with another man, inserting his finger into her vagina to try to confirm his allegations. Defendant then started to suffocate Z.N. but a neighbor from across the hall interceded, knocking on Z.N.'s door and holding a knife. Z.N. escaped into the neighbor's apartment and defendant left the scene.
Z.N. was taken to the hospital but declined to have the police have her tested for rape later that day. She returned to the hospital the next day and was treated for injuries to her lower back and a contusion on her lip.
Defendant was subsequently indicted and charged with the previously-noted offenses. The case was tried before a jury for three days in February 2008.
The State presented three witnesses in its case-in-chief: one of the two Elizabeth Police Department officers dispatched to the scene on the day in question; Z.N., the victim; and the neighbor who intervened to stop the attack. The police officer testified as to the condition of the apartment after he and his partner were called to the scene. He noted the broken chain lock on the door of Z.N.'s apartment and Z.N.'s distraught attitude. Z.N. recounted the events leading up to and including defendant's forced entry into her apartment and the physical attack.
The State also presented testimony from Z.N.'s next-door neighbor, who stated that she had heard Z.N.'s door slam, followed by the sounds of people inside her apartment "dragging furniture" and fighting. The neighbor specifically heard Z.N. "begging someone to leave her alone," and muffled screams. The neighbor knocked on Z.N.'s door, but returned to her apartment after no one answered the door. When the screaming and sounds of apparent begging continued a few minutes later, the neighbor grabbed a kitchen knife and again knocked on Z.N.'s door. When the door opened, Z.N. escaped from defendant and ran into the neighbor's apartment. According to the neighbor, defendant ...