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State v. Vasquez

August 24, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID VASQUEZ, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-1754.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 26, 2010

Before Judges Axelrad and Espinosa.

Defendant appeals from his sentence and convictions on three counts of second-degree sexual assault, N.J.S.A. 2C:14-2a(4). We affirm.

The victim in this case was seventeen year old J.P. On the evening of November 30, 2005, she went sightseeing and shopping with two friends in New York City. She returned to New Jersey by train. At approximately 12:30 a.m., she was waiting near a train station in Newark for a friend to pick her up when a man she subsequently identified as defendant pulled up and asked if she needed a ride. She declined. Defendant pulled out a gun, ordered her to get into the car and threatened to shoot her if she did not comply. J.P. got in the car.

Defendant ordered J.P. to bend down in the car so that she would not see anything and kept a gun to her head while he drove. He claimed that he only wanted her money. J.P. gave him her purse and told him to take everything she had and just leave her alone. She tried to lift her head once but defendant threatened, "Don't try to be super girl because you're going to be super dead."

When defendant stopped the car, the area appeared to be an abandoned industrial site that J.P. did not recognize. Defendant ordered J.P. to take off her boots and clothes and then to get into the back seat and lie down. J.P. testified that defendant got into the back seat, orally and vaginally penetrated her and touched her breasts. During the sexual assault, defendant asked J.P. numerous times if she liked it and to kiss and hug him. J.P. testified that defendant then ordered her out of the car and anally penetrated her in front of the car. Again, he asked her if she liked it and to kiss him while he was sexually assaulting her. Defendant then told J.P. to get back into the car and allowed her to put her clothes back on.

Defendant's mood changed in the car. He apologized to J.P. and asked her where she lived. But when J.P. asked him to drop her off on Washington Avenue, his mood changed again and he said, "You got to tell me where you live because, if you ever say anything to anyone, I'm going to kill you and your family. Where is your house?" J.P. then told defendant where she lived.

Defendant apologized again, saying, "I'm sorry. I've never done this before. I think the devil got inside of me." But, again, he threatened J.P., "But if you say something, I'm going to kill you and I'm going to kill your family. Don't say anything to nobody." J.P. said, "I forgive you. God forgives you." Defendant grabbed her purse and her cell phone and dialed his cell phone from her phone. Then he returned her things and watched her go into her house to confirm that he knew where she lived.

J.P. did not want to trouble her mother, S.R., but S.R. could tell that something was wrong. J.P. was crying and appeared very nervous and very scared. Her make-up was runny and her hair was undone. When S.R. questioned her, J.P. kept saying that nothing happened and she should not worry. But when J.P. took off her jacket, S.R. could see that she was not wearing a bra. S.R. questioned her further and J.P. finally told her, "Mom, I was raped."

S.R. asked who had raped her and J.P. replied that she did not know him; that he had gotten her in his car and that was why she was late. J.P. resisted when S.R. said they had to call the police, telling S.R. about defendant's threat to kill her. But S.R. went ahead and called the police.

Before the police arrived, J.P.'s cell phone rang. S.R. picked up the phone and J.P. said, "No, Mom. It's him." She explained that defendant had taken her phone and put its number into his phone. S.R. observed that the call was from an unpublished number. When she answered the call, the other party hung up.

Officers from Belleville and Newark responded to J.P.'s home. J.P. described her assailant as a white, Hispanic male between twenty and thirty years old, approximately 5'9" tall and 170 pounds. She described his car as an old, white, four-door Oldsmobile with two red boxing gloves by the mirror. The officers took both J.P. and S.R. to the hospital, where she was treated and submitted to a sexual assault examination.

After she was treated, Detectives Anthony Iemmello and Elizabeth Martinez of the Newark Police Department drove J.P. around to see if she could recognize the place where she had been attacked but she was unable to do so. As they were driving, J.P. received a phone call and told the police, "It's him." Detective Iemmello told her to answer the phone and ask defendant his name, what he was wearing and where he lived. Defendant replied that his name was Ricky; he lived in Kearny and was a truck driver. He apologized again, "I think the devil possessed me... I don't know what was wrong with me... I've never done it before." He asked J.P. if she had told anyone. She said, "No." Defendant then said that she was a very pretty girl; that he liked her and wanted to make it up to her and take her out on a date. Detective Iemmello coached J.P. on how to respond to defendant without arousing his suspicion that she had contacted the police. She asked defendant questions that Detective Iemmello wrote down for her and agreed to meet him. Defendant told her that the gun and the car he was driving belonged to his cousin.

When J.P. returned home, she received a voice mail message from defendant and additional calls. J.P. and S.R. returned to the police department, where S.R. authorized the consensual interception of phone conversations between J.P. and defendant. The recorded conversations were played for the jury at trial.

In the conversations, J.P. and defendant agreed to meet at Rita's Italian Ice in Belleville. Police officers arrested defendant when he arrived at that location. A police detective who went to defendant's home thereafter observed a white four-door Oldsmobile with red boxing gloves hanging from the rear view mirror parked in front ...


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