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November 30, 2010


On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0146.

Per curiam.



Submitted November 9, 2010 - Decided Before Judges Payne and Baxter.

Following a trial by jury, defendant was convicted of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), for which the judge sentenced him to a four-year term of imprisonment with no eligibility for parole.*fn1 We reject defendant's contention that: the trial judge erred when he permitted the State to impeach defendant's credibility with his prior convictions from 1993 and 1997; the prosecutor's comments in summation denied him a fair trial; and the sentence imposed by the court was excessive. We affirm defendant's conviction and sentence.

I. On December 6, 2004, C.A., age twenty-one, arrived for a job interview in Elizabeth at a company known as Point Management. In the second-floor office, C.A. completed the job application and was met by defendant, who introduced himself and escorted her to his office. Although the interview began with defendant asking C.A. routine questions about her education and prior employment, defendant's questions soon veered off into areas that made C.A. uncomfortable. Defendant began telling C.A. "about himself and . . . his background [and] his lifestyle . . . ." He told C.A. there were "certain things he didn't want his wife to even know about, and that as his office assistant, his right-hand man [sic], [she] would have to . . . hold certain things" and keep them private. He also asked her several intrusive personal questions.

A few minutes later, after commenting that it was "unprofessional" for C.A. to keep her overcoat on during the interview, defendant asked her to remove her coat and hang it on the coat rack. After hanging her coat on the rack, C.A. turned around to walk back to the chair, only to find defendant "face-to-face" with her, six inches away. Defendant grabbed C.A. in a "bear hug," which pinned her arms at her side. Defendant began to grind his penis against her body while saying, "say you like it. You know you like it." He then kissed her forcibly on her lips and neck.

Eventually C.A., who was only five feet tall and weighed only 110 pounds, was able to break free and run to the stairwell. Defendant followed her and caught up with her on the landing between the first and second floors. After telling C.A. she "had the job," defendant forcibly pushed her against the wall and, while holding her against the wall, put his hands inside her pants and touched her vagina. He then exposed himself and ejaculated onto her pants and the floor.

The next day, at the urging of her mother, C.A. reported defendant's conduct to police. A DNA analysis of the semen stains on C.A.'s pants established that the semen was defendant's.

At a hearing held prior to jury selection, the judge ruled that if defendant took the stand and testified, the State would be permitted to impeach his credibility with two 1993 Florida convictions for receiving stolen property and with a December 1997 New Jersey conviction for sexual assault. At the time of sentencing on the sexual assault conviction, defendant was sentenced to a three-year term of probation; however, when he violated that probation (VOP) he was resentenced in July 1999 to a four-year term of imprisonment. The judge authorized the State to confront defendant with all three of his convictions.*fn2

In concluding that the probative value of the 1993 and 1997 convictions for impeachment purposes was not outweighed by the potential prejudice to defendant, the judge observed that the 1997 conviction was for a crime so "serious" that it "drag[ged] with it the [1993] Florida conviction[s]." The judge commented that although defendant's sexual assault conviction in New Jersey occurred in 1997, defendant was resentenced in 1999 to a four-year term of imprisonment when he was found guilty of violating probation. Therefore, according to the judge, the amount of time that elapsed between defendant's release from prison on the VOP and his commission of the instant offenses in December 2004 was not so great as to render the sexual assault conviction "remote" for purposes of analysis under State v. Sands, 76 N.J. 127, 144-45 (1978).

Ultimately, defendant chose not to testify. Instead, he presented various documents, including C.A.'s resume, a copy of her employment record from her prior employment at Furniture King, and portions of the civil complaint she had filed against him seeking monetary damages as a result of the incident of December 6, 2004.

In his summation, the prosecutor discussed defense counsel's argument that the sexual activity between defendant and C.A. on December 6, 2004 was entirely consensual. The prosecutor stated, "Ladies and gentlemen, excuse my sarcasm, but I just find this so ridiculously unbelievable that you could believe any of that."

After the prosecutor completed his summation, defendant objected, arguing that the prosecutor's summation "disparag[ed] the defense" by arguing that in light of the incriminating DNA evidence, defendant had no choice other than to argue that C.A. consented to defendant's sexual advances. Defendant maintained that the prosecutor had, in effect, suggested to the jury that the defense presented merely a "manipulative defense." Last, defendant maintained that when the prosecutor asked the jury to "pardon his sarcasm" the prosecutor "overstepped," because such a remark impermissibly reflected the prosecutor's personal opinion of defendant's guilt. The judge sustained defendant's objection and agreed to give the jury a curative instruction. At the beginning of his charge to the jury, the judge stated: And before I proceed any further there are a few comments and a few instructions I want to give you regarding some comments that were made by the prosecutor during his summation. First of all, to the extent that his comments can be taken as disparaging [defense counsel] and the defense, those comments were inappropriate. Second ...

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