April 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAWRENCE E. BENNETT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-10-01318.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 23, 2011
Before Judges Axelrad and R. B. Coleman.
Tried to a jury, defendant Lawrence Bennett was convicted of the disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3, a lesser-included offense of second-degree criminal attempted kidnapping. At the close of the State's case, the court granted defendant's motion for a judgment of acquittal on the charge of third-degree terroristic threats. The court imposed a fine along with mandatory assessments and penalties.
Defendant appeals his conviction. Through counsel he argues:
THE DEFENDANT DID NOT UNLAWFULLY OR SUBSTANTIALLY INTERFERE WITH MS. JOHNSON'S LIBERTIES, AS STATUTORILY REQUIRED FOR A FINDING OF FALSE IMPRISONMENT.
THERE WAS NO RESTRAINT THAT TOOK PLACE THAT WAS AGAINST MS. JOHNSON'S WILL NOR WAS IT THE INTENT OF THE DEFENDANT TO CONFINE MS. JOHNSON.
In a pro se supplementary brief, defendant argues:
THE COURT BELOW ERRED WHEN IT ALLOWED A SECOND CRIMINAL TRIAL TO BE HELD WITH DEFENDANT AS DEFENDANT, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT.
UNDER SETTLED PRECEDENTS OF THIS COURT, A STATUTE WHICH DISCRIMINATES AGAINST CITIZENS MUST BE FOUND UNCONSTITUTIONAL. ONLY ANOTHER SOVEREIGN MAY TRY SOMEONE FOR A CRIME BASED ON THE SAME COMMON NUCLEUS OF OPERATIVE FACTS FOR ANOTHER CRIME.
NEW JERSEY LAW DOES NOT ALLOW FALSE IMPRISONMENT TO BE A LESSER-INCLUDED OFFENSE WHEN THE INITIAL CHARGE IS ATTEMPTED KIDNAPPING, AND THE STATUTE OF LIMITATIONS FOR FALSE IMPRISONMENT HAS EXPIRED.
THE ASSIGNED COUNSELS AT BOTH THE TRIAL AND THE APPELLATE LEVELS ACT INADEQUATELY IN FAILING TO PROTECT APPELLANT'S CONSTITUTIONAL RIGHTS RESULTING IN INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND STANDARD.
Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments. We affirm.
The following facts were adduced at trial. The State presented the testimony of the victim, Tiffany Johnson, her father, Thomas Johnson, three eyewitnesses, and the investigating officer. Defendant testified on his own behalf. The incident occurred on June 27, 2004, at which time Johnson and defendant were sixteen and eighteen years of age, respectively. Johnson was working at a Super G as a bagger. According to Johnson, shortly after arriving at work she received approximately ten phone calls from defendant in rapid succession. Johnson eventually answered her phone and defendant stated his need to speak with her. When Johnson responded she could not talk because she was at work, defendant became angry.
Defendant then came into the store, bought something and paid for it a register near where Johnson was working. After seeing defendant, Johnson became visibly upset and, at the advice of the cashier for whom she was bagging - a witness at trial - she took a break. During her break, Johnson phoned her father and told him defendant had been calling her with annoying persistence. At her father's request, she gave him defendant's number.
Mr. Johnson testified that he called defendant and told him he was not allowed to date his daughter anymore because she was too young. Defendant responded that he was "going to do something."
Defendant re-entered the store, expressed his displeasure with Johnson for calling her father, grabbed her arm and "made [her] go out of the store." As defendant led Johnson out of the store, she started to resist and grabbed onto a railing and called for help. Unable to hold onto the railing any longer, Johnson was pulled outside, past the sidewalk and onto the parking lot. Johnson testified that she "didn't want to do something that [she] was being forced to do" and she was "really, really scared." Hearing Johnson's cries for help, other employees came outside the store to assist, after which defendant released his hold on Johnson, ran to his car, and sped off.
Approximately twenty minutes later, defendant called Johnson's phone. The investigating officer answered the phone and directed defendant to return to the supermarket, which he did.
Defendant testified that he initially approached Johnson and asked if he could talk to her in private. According to defendant, Johnson agreed, told her co-worker she would return shortly, and proceeded to walk outside with him. Defendant said he "grabbed her hand" and they were "holding hands" when they walked out of the door. Defendant testified that Johnson walked out of the store on her own accord, but acknowledged "she looked like she had mixed feelings about it, like she wanted to go but didn't want to go." He further acknowledged "leading her" but claimed he was not "pulling her." According to defendant, Johnson "didn't resist till [they] got outside, till employees started banging on windows." Johnson then started crying and said she could not go with defendant and defendant left her in the parking lot.
The gist of the arguments advanced by defense counsel is that the conviction is against the weight of the evidence. We first note that defendant failed to make a motion for a new trial based on that ground as required by Rule 2:10-1, and thus failed to preserve that issue for appeal. State v. Marinez, 370 N.J. Super. 49, 56 (App. Div.), certif. denied, 182 N.J. 142 (2004). Nevertheless, we are convinced this claim has no merit.
A person commits false imprisonment "if he [or she] knowingly restrains another unlawfully so as to interfere substantially with his [or her] liberty." N.J.S.A. 2C:13-3. Restraint "means confinement, abridgment or limitation. Restraint involves hindrance, confinement or restriction of liberty." Model Jury Charge (Criminal), "False Imprisonment-Lesser Included" (2005). "'Liberty' means the state or fact of being free. It is freedom from external restraint or compulsion of power, to do as one pleases." Ibid. The restraint is considered unlawful if the perpetrator uses force, threat or deception. N.J.S.A. 2C:13-1(d).
The credible evidence in the record clearly supports a conviction on this charge. Defendant's restraint of Johnson substantially interfered with her liberty. Johnson and witnesses testified that defendant forcibly dragged her out of the Super G. According to Johnson, she held onto a railing and stopped moving her legs to prevent defendant from taking her outside, a place she did not want to go. The cashier for whom Johnson was working testified she saw defendant grab Johnson by the arm and drag her out of the store. Another employee testified that it appeared defendant was dragging Johnson by the back of her hair. A security guard testified Johnson was screaming for defendant to let her go and he would not do so until confronted by other employees. Faced with that overwhelming evidence, the jury was apparently unconvinced by defendant's version of the incident and found him guilty. The judgment of the jury "is entitled to very considerable respect." Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977).
We similarly find unpersuasive the issues raised in defendant's pro se brief. According to the appendix, it appears Johnson obtained a temporary restraining order against defendant for conduct arising out of the same instance, which was subsequently dismissed by the court.*fn1 We have held that a complaint brought under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and criminal proceedings based on the same conduct are "separate and distinct matters." State v. Brown, 394 N.J. Super. 492, 504 (App. Div. 2007). We explained:
As the Prevention of Domestic Violence Act demonstrates, the purpose of an action in the Family Part, designed to protect an individual victim, is quite different than a criminal case in which the State prosecutes a defendant on behalf of the public interest. The Act was enacted "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. . . . The Act further states that "[a] victim shall not be prohibited from applying for, and a court shall not be prohibited from issuing, temporary restraints pursuant to this act because the victim has charged any person with commission of a criminal act." N.J.S.A. 2C:25-26(f). [Ibid.]
A prosecutor does not participate in domestic violence proceedings other than a contempt matter and, for the most part, testimony given by either party in a domestic violence hearing "shall not be used in the simultaneous or subsequent criminal proceeding against the defendant." N.J.S.A. 2C:25-29(a). We explained that application of the collateral estoppel doctrine, which is embodied within the double jeopardy clause, "would be inconsistent with the State policy underlying the handling of [domestic violence] cases and is not warranted as a matter of constitutional law." Id. at 501, 505. We elaborated:
Given the legislative policy embodied in the [Prevention of Domestic Violence] Act and the Victims' Rights Amendment to our Constitution, N.J. Const., art. I, ¶ 22, the doctrine of fundamental fairness cannot preclude the State from prosecuting a defendant indicted for a charge that formed the basis of an unsuccessful domestic violence complaint. [Id. at 507.]
Accordingly, there was no constitutional violation in defendant being prosecuted for charges that formed the basis of Johnson's unsuccessful domestic violence complaint.
Contrary to defendant's assertion, the trial court properly charged false imprisonment as a lesser-included offense of attempted kidnapping. Both criminal restraint and false imprisonment fit within the Criminal Code's definition of lesser-included offenses of kidnapping. State v. Savage, 172 N.J. 374, 398, 401 (2002); State v. La France, 117 N.J. 583, 590-91 (1990). Although defendant could not have been charged with attempted false imprisonment because "[a]n attempt to commit a disorderly persons offense is not itself an offense," State v. Clarke, 198 N.J. Super. 219, 225 (App. Div. 1985), attempted indictable crimes do have lesser-included offenses. Id. at 225-26.
False imprisonment is established by less than all of the elements required for kidnapping. La France, supra, 117 N.J. at 590-91; State v. Bragg, 295 N.J. Super. 459, 470 (App. Div. 1996). See also Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:13-3 (2010) ("In the right case, false imprisonment may have to be charged as a lesser included offense to kidnapping."). It is clear there is "a rational basis in the evidence" in this case on which the jury could acquit defendant of the greater charge of attempted kidnapping and convict him of the lesser-included offense of false imprisonment. See State v. Cassady, 198 N.J. 165, 178 (2009); State v. Brent, 137 N.J. 107, 117 (1994). As the trial court reasoned, a jury could easily not find kidnapping here but could find the following elements included in false imprisonment: "[defendant] restrained Ms. Johnson;  the restraint was unlawful; that . . . restraint substantially interfered with Ms. Johnson's liberty; and  [defendant] acted knowingly."
It is of no moment that the statute of limitations for false imprisonment expired prior to trial. See N.J.S.A. 2C:1-6(b)(2) (providing that a prosecution for a disorderly persons offense "must be commenced within one year after it is committed"). This deadline, however, does not apply to a disorderly persons offense resulting from the downgrading of an indictable offense commenced within the statute of limitations. N.J.S.A. 2C:1-6(d). As required by N.J.S.A. 2C:1-6(b)(1), the prosecution of the greater offense - attempted kidnapping - did commence within five years after it was committed. Accordingly, the lesser-included offense of false imprisonment was not procedurally barred.
We summarily reject defendant's last argument as without any basis in fact or law. R. 2:11-3(e)(2). Trial and appellate counsel rendered more than adequate legal assistance to defendant and there was no evidence of prosecutorial misconduct in this matter.