On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0463.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2010
Before Judges Graves and Waugh.
Defendant William Quinonez appeals his conviction for first-degree kidnapping under N.J.S.A. 2C:13-1(b)(2), as well as the resulting sentence of twenty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We reverse.
We discern the following facts and procedural history from the record on appeal, including the testimony at the trial.
Rita Gutierrez testified that, on May 22, 2007, she was baby-sitting Ida, her four-year old granddaughter, while the child's mother was at work.*fn1 Rita took Ida to the park and then shopping along Elizabeth Avenue in Elizabeth. While they were shopping, Rita saw her other daughter Sandra Gutierrez, Quinonez, and another woman in front of a bakery. Sandra was holding one-year old Jill, Sandra and Quinonez's daughter. Rita noticed that Sandra and Quinonez, who had ended their relationship six months earlier, were arguing.
At that point, Ida asked Rita for some of the candy they had just purchased. As Rita let go of Ida's hand to unwrap the lollipop, they continued walking. When Rita told Ida to hold her hand again, she realized Ida was gone. Rita looked in several businesses and asked whether anyone had seen the child. She then went into Amigo Chicken Restaurant (Amigo Chicken) and asked someone to call the police.
When the police arrived, Rita described the child to a police officer who spoke Spanish. About a half-hour later, Rita's other daughter, Elsa Solorzano, who was Ida's mother, arrived at Amigo Chicken in tears. She told Rita that Quinonez had Ida.
According to Elsa, Rita watched Ida three times a week. On May 22, she arrived at her mother's house at approximately 6:45 p.m. to pick up Ida. She did not find anyone at home, but testified that this was not unusual. While Elsa was waiting, Sandra arrived home. A few minutes later, Sandra's cellphone "chirped" and she answered it. After listening briefly, Sandra told Elsa that Quinonez, who was on the phone, had Ida. Elsa took the phone and told Quinonez that she wanted her daughter returned. According to Elsa, Quinonez said he would not return Ida, that she would never see her again, and that he was far away.
Elsa told Quinonez that she was calling the police, to which Quinonez replied he did not care. When Elsa called 9-1-1 and described Ida, the dispatcher told her that the police were already aware that Ida was missing. The dispatcher directed Elsa to the area on Elizabeth Street where the police were with Rita.
Lisa Lopez testified that she had known Quinonez for four or five years. On the evening of May 22, she was driving on Marshall Street when she saw Quinonez with a little girl. She stopped to ask whether Quinonez had seen someone she knew. He replied that he had not, and then asked for a ride. He got in the front seat of her car, and had Ida stand between his legs.
Quinonez made several phone calls while driving with Lopez. She heard him mention the name Jessica, and also ask about tickets to go to North Carolina. Quinonez asked Lopez to stop at his house. He went into the house and returned with $10 to pay for gas. She then drove to Chilton Towers, where Quinonez and Ida got out. According to Lopez, Ida cried the entire time they were in the car, which was about thirty minutes.
As Lopez drove home on Elizabeth Avenue, she saw the police and heard a lady screaming about a little girl. She stopped her car, and told a police officer where she had just dropped Quinonez and Ida.
Elizabeth Police Officer Yoan Belon responded to the call about the missing child on Elizabeth Avenue. Belon spoke to Rita in Spanish, and relayed Ida's description to headquarters. After learning that Ida was with Quinonez, he went to Quinonez's residence, but did not find either Quinonez or Ida there.
Belon then went to the Gutierrez residence on Elizabeth Avenue, where he spoke with Sandra. Belon instructed Sandra to use her cellphone to call Quinonez, and to keep trying to reach him until she got through. After ten to fifteen calls, at approximately 8:30 p.m., she succeeded in contacting Quinonez. Belon spoke to Quinonez for about twenty minutes. Quinonez told Belon that he was at Chilton Towers, but would not give an exact location. He told Belon to go to the apartment building and call when he arrived. Quinonez said that he would release Ida to him. Just before heading to Chilton Towers, however, Belon learned that Quinonez and Ida had been found by other police officers.
Elizabeth Police Officer Sergio Alexandre was dispatched to Chilton Towers. He was told that Quinonez might be in an apartment on the fourteenth floor. An occupant of the apartment told Alexandre that Quinonez had been there and requested help to go somewhere. She had refused because she did not want to get involved.
Alexandre and another police officer conducted a floor by floor search. Shortly after 10:00 p.m., they found Quinonez in a basement corridor. He was sitting on the floor with his back to the wall, with Ida on his lap. Alexandre carried Ida ...