On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-04-0871.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Wefing and Grall.
Defendant was indicted for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7); second-degree sexual assault, N.J.S.A. 2C:14-2c(1); and third-degree criminal restraint, N.J.S.A. 2C:13-2. A jury acquitted defendant of the first offense but convicted him of the remaining two. The trial court sentenced defendant to an aggregate eight-year term in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for reconsideration of his sentence.
It was undisputed at trial that defendant engaged in sexual intercourse with L.F. on November 23, 2002; defendant freely admitted doing so. He maintained, however, that their encounter was consensual.
L.F. was twenty-three years old at the time, and mildly retarded. She worked at a QuikChek store on Springfield Avenue in Maplewood, taking care of the coffee area in the store. At approximately 7:00 a.m. on November 23, 2002, she was standing on Springfield Avenue in Irvington waiting for her bus to come to take her to her job. Defendant, driving a Nissan Pathfinder, was stopped for a red light. L.F. testified that defendant rolled down his car window and asked if she wanted a ride, and she said she did as she was cold. Defendant testified that she asked him for a ride. He drove up Springfield Avenue for some distance and then pulled off the road and behind a car wash that was closed. He said he did so because she had reached out and touched his leg, which he interpreted as a sexual advance. He said he asked if she wanted "to get into it" and she said yes.
L.F. gave an entirely different version of what occurred. She denied ever touching defendant's leg, said she had repeatedly told defendant, "No," but that he had persisted and penetrated her vaginally.
Both the prosecution and the defense presented expert testimony with respect to L.F.'s mental limitations and her ability to understand the concept of consenting to sexual activity. By its verdict, the jury rejected the prosecution's theory that L.F. was mentally defective but also rejected defendant's testimony that she consented to the act.
Defendant raises two arguments on appeal:
DEFENDANT'S CONVICTIONS SHOULD BE VACATED BECAUSE THESE VERDICTS WERE AGAINST THE ...