On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-07-1115.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges R. B. Coleman and J. N. Harris.
Defendant Mike Mc Kane was indicted by a Hudson County Grand Jury for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (counts one, two, and three); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (counts six, seven, and eight); first-degree robbery, N.J.S.A. 2C:15-1 (count four); and second-degree burglary, N.J.S.A. 2C:18-2 (count five). Defendant was tried before Judge Frederick J. Theemling, Jr. and a jury, which resulted in the conviction of defendant on all counts except count four, of which defendant was convicted of the lesser-included offense of second-degree robbery, N.J.S.A. 2C:15-1.
At sentencing, the trial court granted the State's application to impose an extended term upon defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). On count three, the judge sentenced defendant to a fifty-year term of incarceration, subject to an 85% term of parole ineligibility pursuant the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The remaining counts were merged with count three.
Defendant raises the following issues on appeal:
POINT 1: THE TRIAL COURT DENIED DEFENDANT'S RIGHT TO CONFRONT THE STATE'S CASE AGAINST HIM AND PRODUCE IMPEACHING EVIDENCE AT TRIAL.
POINT 2: DECLINING TO CHARGE THE JURY ON HOW TO EVALUATE DEFENDANT'S ALLEGED ORAL STATEMENTS WAS PREJUDICIAL ERROR.
POINT 3: THE TRIAL COURT ERRED IN RULING DEFENDANT'S PRIOR CONVICTIONS ADMISSIBLE AS IMPEACHMENT EVIDENCE.
POINT 4: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
We have reviewed completely the trial record under the lens of the arguments raised by defendant, and the relevant law. For the reasons that follow, we affirm defendant's conviction and the sentence imposed.
These were the facts presented at trial. In the early hours of December 17, 2005, after returning to her first-floor apartment in Jersey City from an office Christmas party and a very brief date, the victim, G.B., became immersed in online computer activities. Suddenly, an uninvited male emerged from the bedroom. The stranger -- clad in all black and wearing a ski mask or hood drawn close to his face -- approached where G.B. was sitting. The individual made a gesture as if he were carrying a gun, and then demanded "something along the lines of where is the money." As the perpetrator grabbed G.B. by the throat and forced her into the kitchen, she gave defendant three hundred-dollar bills from a coffee cup. A struggle ensued as the man pushed G.B. back into the living room, all the while holding her throat, making it difficult for her to breathe and speak. The attacker then began to sexually assault G.B. She was able to convince him to put on a condom, after which he proceeded to rape G.B. for approximately forty minutes.
Once the assault concluded, the intruder attempted to have a conversation with G.B. to the point of apologizing for breaking into her apartment. He also went into the kitchen to help himself to some food and water. The victim was able to retain the Poland Spring bottle defendant drank out of for evidence, in addition to recovering the condom defendant used during the rape. Shortly thereafter, the assailant left the apartment through G.B.'s bedroom window.
Thirty minutes after the attack, the victim called 9-1-1. After the police arrived, she explained what had happened and was subsequently taken to the hospital where a medical examination was conducted and evidence -- using a rape kit -- was gathered. A nurse observed that there were marks on G.B.'s neck consistent with choking, and that there was redness and swelling of the vaginal area, consistent with traumatic sexual intercourse. G.B. was ...