On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-02-0511.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 18, 2011 -
Before Judges Fisher, Baxter and Nugent.
In this appeal, defendant argues his conviction of second-degree sexual assault, N.J.S.A. 2C:14-2c(1), should be reversed because, among other things, the trial judge failed to charge the lesser-included offense of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. We recognize that defendant did not object to the absence of this instruction. We nonetheless conclude that the judge committed plain error in failing to instruct the lesser-included offense, an error exacerbated when the deliberating jury asked about the availability of a lesser-included offense and the judge responded that the jury could only consider second-degree sexual assault. For these reasons, we reverse and remand for a new trial.
Three individuals testified at a one-day trial in this matter. N.A. testified that at around 11:00 a.m., on November 11, 2007, she was doing laundry at the apartment complex where she lived in Gloucester Township when defendant entered the laundry room. N.A. knew defendant because he lived directly across from her and she had seen him around the apartment complex. Defendant approached N.A. and began speaking in Spanish, which N.A. did not understand. As he approached, N.A. stepped back into an area between a washer and dryer and, according to N.A., defendant started kissing and licking her face and pushed her further into a corner. N.A. told him "No," but was unable to get defendant to stop despite telling him she "had a husband to make him go away." N.A. asserted that defendant continued kissing her, touched her breasts and buttocks under her clothing, and put his hand in her pants and inserted his finger into her vagina. She said his hands were "all over [her] like an octopus," and he only stopped upon hearing someone rustling at the top of the laundry room stairs. According to N.A., defendant's demeanor then changed, and he became "friendly" and talkative as Mary Williams entered the laundry room. After defendant left, N.A. told Williams that she "sav[ed] her life" and that defendant was a "creep."
N.A. left the laundry room and returned to her apartment. She told her
boyfriend and sixteen-year old daughter what had occurred.*fn1
N.A. testified she was "crying hysterically" and went into
the shower and began scrubbing herself while sitting under hot running
Around 5:00 p.m., N.A. called the police to report the incident. After police questioned N.A., they went to defendant's apartment. They brought defendant outside, and N.A. identified defendant as the person she said had accosted her in the laundry room.
N.A. was also permitted to testify about previous encounters with defendant. She said she first met defendant in May 2006, and thought he was "friendly" because he was one of the first people from the apartment complex to speak with her. One day, when she said hello to him, he began telling her that she was "in his heart," "he loved [her]," and she was a "momasita" [sic]. N.A. claimed that during the summer of 2006, defendant "was always hanging out" at his apartment window "staring over" at her apartment or "if he would see me, he would climb out [his] first-floor window to follow me." N.A. also testified that on one occasion during that same summer, defendant followed her daughter up the stairs to her apartment and when N.A. closed the door, defendant remained there for about an hour banging on the door seeking to be let inside.
Mary Williams was also called by the State to testify. Williams said that on the day in question she walked down the steps and heard a mumbled voice but could not clearly understand what was said; Williams admitted she has difficulty hearing. Williams testified that she entered the laundry room and saw defendant and N.A. but did not see defendant touch N.A. Williams briefly spoke with defendant and, after he left, N.A. said to Williams, "I'm glad you came down here because I thought he was going to attack me." Williams replied to N.A., that it was "just [defendant;] [h]e won't do anything like that."
On cross-examination, Williams said she knew N.A. from around the apartment complex, and had seen her a few times before and knew where she lived. She testified that while in the laundry room, N.A. was neither upset nor crying, and it did not appear anything had happened between her and defendant.
The State rested and defendant moved for dismissal, which the trial judge denied.
Defendant then testified. According to defendant, he started doing his laundry early that day and when he went back to check on his clothes, he saw N.A. in the laundry room. Defendant asked N.A. if his clothes were finished and claimed he did not bother N.A. but instead merely did his own laundry. Williams then entered, and defendant spoke with Williams briefly before leaving and eventually taking the bus to get a prescription filled. After returning around 4:00 p.m., he went back to the laundry room and finished drying his clothing. Later, defendant returned to his apartment and started hanging his clothes in a closet when the police arrived. Defendant denied touching N.A., and testified he did not touch her breasts or buttocks, nor did he insert his finger into her vagina.
After closing arguments, the trial judge provided counsel with copies of the charge and jury verdict sheet and then, off the record, discussed the charge with ...