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State v. Carey

April 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BARRY LORENZO CAREY, A/K/A LORENZO CAREY, A/K/A MALIK CAREY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-01905.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2009

Before Judges Fisher, Sapp-Peterson and Espinosa.

Defendant appeals from his convictions and sentence on charges of kidnapping and the aggravated sexual assault of one victim and his attempts to lure two other victims into a motor vehicle with the purpose of committing a crime against them. All of the victims were clients of Friendship House, a nonprofit vocational rehabilitation agency in Hackensack that serves clients who are developmentally, emotionally or physically disabled. We affirm.

On April 17, 2003, M.C.S. was walking to Friendship House when a man pulled up in a car and called for her to come over. Believing that the man was another Friendship House client, her boyfriend David, she ran to the car and opened the front passenger door. When she saw that it was not David, she told the man that she did not know him. He replied that he knew her and that she went to Friendship House. He told her that he was a staff member and offered her a ride, which she accepted. However, the man, later identified as defendant by M.C.S., did not drive toward Friendship House. When M.C.S. asked where he was going, defendant responded, "I'm going to take you where I want to get what I want[.]" M.C.S. asked to get out of the car but defendant responded, "[N]ot until I get what I want." Fearing for her life, M.C.S. began banging on the car window in a fruitless attempt to escape. After driving in circles, defendant pulled the car into a driveway and parked close to a cement wall that prevented M.C.S. from opening her door. He told her to stop trying to open the door because she would scratch the car door.

Defendant instructed M.C.S. to pull her pants down. After she refused twice, he threatened her by saying that he would only tell her to do so one more time. She complied at that point out of fear that he would hurt her. Defendant told M.C.S. to turn over on her stomach and, believing he would kill her if she refused, she did so. Defendant had sexual intercourse with her for approximately fifteen to twenty minutes, causing her to suffer pain. When he had finished, defendant told M.C.S. to pull her pants up. He drove around for a while, told her she was a "nice lady," and dropped her off.

M.C.S. found her way to Friendship House and entered, crying and shaking. The police were called. They took a statement from M.C.S. and transported her to Hackensack University Medical Center, where she was seen by a sexual assault nurse practitioner, Alexis Fitzsimmons. Very upset and angry, M.C.S. described the rape and complained of a lot of vaginal pain and pressure. Upon examination, areas of pain and redness were consistent with M.C.S.'s description of the rape. She also suffered a laceration. Fitzsimmons collected M.C.S.'s clothes and used a sexual assault evidence collection kit to obtain additional evidence.

After M.C.S. left the hospital, police drove her around Hackensack. She was eventually able to identify the location of the rape and assisted in the preparation of a composite sketch of her attacker.

Four months later, another Friendship House client, I.G., was walking to Friendship House when a man sitting in a parked, tan four-door 2003 or 2004 Toyota called out to her, stating that he was lost and claiming that he knew her. He asked her if she knew where a Blockbuster video store was. I.G. answered, "No." The man, later identified as defendant by I.G., told her that she was "hot" and asked her to get in the car and get some coffee with him. She refused and started to walk away. Defendant put his car into reverse and drove alongside her as she walked away. He opened the door to his car and asked her to get in but she continued to refuse.

I.G. was scared and hysterical when she ran into Friendship House. She told a counselor, Helene Sims, what had happened and pointed out the car. At that point, K.R., another Friendship House client was being approached by defendant in his car.

K.R. described a similar encounter. She was a few houses away from Friendship House when a Toyota pulled up on the opposite side of the street and the driver asked for help. K.R. later identified defendant as the driver. Defendant asked for directions to Teaneck but K.R. was unable to help. Defendant told her that he remembered who she was and asked her to get in the car but K.R. did not remember him and backed away from the car. Defendant then asked where he could find a good coffee shop and, after K.R. told him, he asked her to get in and show him. K.R. became frightened and began to walk away.

At that point, Sims arrived and wrote down the Toyota's license plate as it drove away. She told K.R. about I.G.'s experience and called the police. After the Toyota's registration was traced to his girlfriend's mother, defendant was identified as a driver of the car. When defendant was interviewed by police, he denied attacking any of the women. However, a DNA sample taken from defendant matched a sample taken from M.C.S. during her rape examination.

Defendant was indicted on the following charges: first-degree kidnapping of M.C.S., N.J.S.A. 2C:13-1(b) (count one); first-degree aggravated sexual assault of M.C.S., N.J.S.A. 2C:14-2(a)(3) (counts two and three); second-degree sexual assault of M.C.S., N.J.S.A. 2C:14-2(c)(1) (count four); second-degree attempted kidnapping of K.R., N.J.S.A. 2C:13-1(b) and N.J.S.A. 2C:5-1 (count five); second-degree attempted aggravated sexual assault of K.R., N.J.S.A. 2C:14-2(a)(3) and N.J.S.A. 2C:5-1 (count six); second-degree attempted sexual assault of K.R., N.J.S.A. 2C:14-2(c)(1) and N.J.S.A. 2C:5-1 (count seven); second-degree attempted kidnapping of I.G., N.J.S.A. 2C:13-1(b) and N.J.S.A. 2C:5-1 (count eight); second-degree attempted aggravated sexual assault of I.G., N.J.S.A. 2C:14-2(a)(3) and N.J.S.A. 2C:5-1 (count nine); and second-degree attempted sexual assault of I.G., N.J.S.A. 2C:14-2(c)(1) and N.J.S.A. 2C:5-1 (count ten). Count three was dismissed on the State's motion.

Defendant filed several pre-trial motions, including one to have a psychiatrist examine the victims. Another motion sought either a severance of the counts as to each of the victims or, in the alternative, to sever the charges regarding M.C.S. Both motions were denied.

During jury selection, the court asked all potential jurors if they or anyone in their family had either been arrested or convicted of a crime or had been the victim of a crime. The State asked the court to discharge an African-American juror, S.J., for cause based upon information it had obtained after she was seated that she had, in fact, been arrested and charged with assault. The State did not challenge S.J. when she was originally seated and, in fact, announced that the jury was acceptable on several occasions after S.J. was seated, including after other challenges were exercised by both the State and defendant. As part of her duties, the prosecutor had been screening all the cases that were referred to the prosecutor's office from the municipalities and S.J.'s name sounded familiar to her. Upon investigation, the prosecutor discovered that S.J. had been arrested and charged with assault in 2000. The basis for the State's request that she be excused for cause was that she had lied on the jury questionnaire and on voir dire and because the prosecutor was concerned as to how a peremptory challenge at that point might be perceived by the jury. Upon examination, S.J. acknowledged that she had been arrested and had filed criminal complaints against others but did not believe that information pertinent because the criminal charge against her had been dismissed. She maintained that she could be fair and impartial as a juror. The court denied the motion to excuse for cause; the State exercised a peremptory challenge. Defendant objected and moved for either a dismissal of the indictment or a new jury. The motion rested upon the arguments that the State's inquiries regarding S.J. violated Rule 1:16-1 and therefore constituted prosecutorial misconduct and further, that the State improperly exercised peremptory challenges to S.J. and T.W. on the basis of their race.*fn1 Defendant's motion was denied.

Defendant did not testify at trial. The defense presented was that the intercourse with M.C.S. was consensual; that his interactions with K.R. and I.G. were innocent conversations about locations and directions; and that he did not take any substantial step to kidnap or rape them by asking them to get in his car.

The jury convicted defendant of first-degree kidnapping of M.C.S., N.J.S.A. 2C:13-1(b) (count one); first-degree aggravated sexual assault of M.C.S., N.J.S.A. 2C:14-2(3) (count two); second-degree sexual assault of M.C.S., N.J.S.A. 2C:14-2(c)(1) (count four). On counts five and eight, the jury convicted defendant of the lesser-included offense of luring K.R. and I.G., N.J.S.A. 2C:13-7 and N.J.S.A. 2C:5-1. Defendant was acquitted on counts six, seven, nine and ten.

At sentencing, the court merged count four into count two. In addition to imposing appropriate fines and penalties, the court sentenced defendant as follows: on count one, twenty-five years, subject to the No Early Release Act (NERA), with 85% of the sentence to be served prior to parole eligibility; on count two, a term of seventeen years, subject to NERA, to be served concurrent to count one; on count five, a term of four years; on count eight, a term of four years. The sentences on counts five and eight were ordered to be served concurrent to each other but consecutive to the sentences imposed on counts one and two.

Defendant raises the following issues on appeal:

POINT I

THE DEFENDANT WAS DEPRIVED OF DUE PROCESS BY THE PROSECUTOR'S IMPROPER USE OF PEREMPTORY CHALLENGES TO EXCLUDE JURORS ON THE BASIS OF RACE IN VIOLATION OF STATE V. GILMORE, 103 N.J. 508, 511 (1986).

POINT II

THE DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE THE PROSECUTION IMPROPERLY CONDUCTED AN ...


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