On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-08-3322.
The opinion of the court was delivered by: Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2011
Before Judges Reisner, Sabatino and Alvarez.
The opinion of the court was delivered by REISNER, J.A.D.
Defendant Christopher Kornberger appeals from his convictions for: second-degree sexual assault, N.J.S.A. 2C:5-1, 2C:14-2a(4); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1, 2C:14-2a(6); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and first-degree attempted kidnapping, N.J.S.A. 2C:5-1a(3), 2C:13-1b(1); for which he was sentenced to an aggregate term of fifteen years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirm.
These consolidated appeals concern defendant's conviction by a jury in Camden County for attacking N.D. with a tire iron and attempting to sexually assault her, and his later guilty plea to first-degree attempted kidnapping of R.W. for the intended purpose of sexually assaulting her. Defendant gave a lengthy confession concerning both incidents, as well as several crimes he committed in Burlington County.*fn1 His motion to suppress the confession was denied following a Miranda*fn2 hearing. The judge then severed the two cases for trial, and the N.D. trial was held first.
At that trial, N.D. testified that as she was walking home at about 4:30 a.m. on March 29, 2003, she encountered a man who, without warning, began hitting her over the head with a tire iron. He also broke one of her hands as she was trying to ward off the blows to her head. As she lay on the ground, injured, the assailant pulled her legs straight, straddled her body, unbuttoned his pants and attempted to remove her pants. During the assault, she had a clear view of the assailant's face as he was sitting on her legs facing her. N.D. was able to escape after the attacker put down the tire iron and she grabbed it and started swinging it at him. N.D. initially told the police that the attacker had blonde hair. At the trial, N.D. identified defendant as the attacker, although he had dark hair.
After defendant's confession was redacted with the agreement of both counsel, to remove irrelevant or prejudicial material, the confession was presented to the jury.*fn3 In his confession, defendant described in detail how he chose his victim, came up behind her, and repeatedly hit her with the tire iron. He admitted that he attempted to rape her, but gave up after she resisted.
The State also presented evidence concerning the tire iron, which the police found after defendant told them its location during his confession. Expert testimony confirmed that blood found on the tire iron matched a DNA sample taken from N.D. Although the expert could not say with absolute certainty that the DNA on the tire iron was from N.D., he testified to a reasonable degree of scientific certainty, in the legal sense, that it was a "match."
After he was convicted and sentenced in the N.D. case, defendant pled guilty to the attempted kidnapping of R.W., reserving his right to appeal from the denial of the Miranda motion.*fn4
On this appeal, defendant raises the following points for our consideration:
POINT I: SINCE THE STATE FAILED TO SATISFY ITS BURDEN OF DEMONSTRATING THAT DEFENDANT'S CONFESSION WAS VOLUNTARY, ADMISSION OF THIS STATEMENT INTO EVIDENCE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS.
POINT II: THE REDACTION OF THE TRANSCRIPT OF DEFENDANT'S STATEMENT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY ELIMINATING REFERENCES RELEVANT TO DEFENDANT'S ABILITY TO FORM THE REQUISITE INTENT. (Not Raised Below)
POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEETH AMENDMENT OF THE UNITED STATES CONSTITUTION AND N.J. CONST., ART. I, ¶. 1 WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, INAPPROPRIATE AND PREJUDICIAL INSTRUCTION TO THE JURORS ON THE LAW OF ATTEMPTED AGGRAVATED SEXUAL ASSAULT. (Not Raised Below)
POINT IV: THE TRIAL COURT ERRED IN PERMITTING THE STATE'S EXPERT TO TESTIFY CONCERNING THE RESULTS OF THE STR METHOD OF DNA TESTING. (Partially Raised Below).
POINT V: DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE DENIED BY THE PROSECUTOR'S MISCONDUCT IN MAKING IMPROPER SUMMATION COMMENTS. (Not Raised Below)
For the reasons that follow, we are satisfied that none of these arguments provide a basis for reversal.
We first consider the arguments defendant raises in Point III: that the judge should not have instructed the jurors on the law of attempt before instructing them on the substantive crime of aggravated sexual assault, and that the judge gave an incorrect instruction on attempt. We consider these arguments under the plain error rule, which requires defendant to establish that, considered in the context of the entire charge and the evidence presented at trial, the error had "a clear capacity to produce an unjust result." R. 2:10-2; see R. 1:7-2. "The standard for assessing the soundness of a jury instruction is 'how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole.'" State v. Savage, 172 N.J. 374, 387 (2002)(citation omitted).
Plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." The charge must be read as a whole in determining whether there was any error.
Even so, if the error is in a jury instruction that is "crucial to the jury's deliberations on the guilt of a criminal defendant[,]" it is a "'poor candidate for rehabilitation' under the plain error theory." [State v. Torres, 183 N.J. 554, 564 (2005)(citations omitted).]
We find no error, plain or otherwise, in the judge's decision to explain to the jury the law of attempt, before explaining the elements of the substantive crime of aggravated sexual assault. With respect to the sexual assault on N.D., defendant was only charged with attempt, and therefore it made logical sense to explain the law of attempt first. Defendant cites no case law to support his argument concerning the organizational structure of the charge, and we find nothing in the order of the charge that would have confused the jury.
Defendant next contends, and the State essentially concedes, that in addition to giving the jury the correct charge on attempt, the judge also included instructions on types of attempt that did not apply to this case. We begin by considering the statutory definition of the three types of criminal attempt:
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
b. . . . Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose. [N.J.S.A. 2C:5-1a to -1b.]
Type a(1) concerns a completed crime which fails of its purpose because the facts are not as defendant believes them to be. See State v. Condon, 391 N.J. Super. 609, 616 (App. Div.) (citing as an example, performing an illegal abortion on a woman who turns out not to be pregnant), certif. denied, 192 N.J. 74 (2007). Type a(2) involves a situation "'where the criminal act is very nearly complete and requires one more step either beyond the actor's control or not requiring his control for completion.'" Id. at 615-16 (quoting Cannel, New Jersey Criminal Code Annotated, comment 2 on ...