On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 99-11-1594.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2011
Before Judges Parrillo and Grall.
Tried in absentia by a jury, defendant Emilio R. Giron was found guilty of two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5), (Counts four and ten); two additional counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4), (Counts five and eleven); two counts of sexual assault, N.J.S.A. 2C:14-2(c)(1), (Counts six and twelve); two counts of kidnapping, N.J.S.A. 2C:13-1(b), (Counts seven and thirteen); two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), (Counts eight and fourteen); two counts of weapon possession under manifestly inappropriate circumstances, N.J.S.A. 2C:39-5(d), (Counts nine and fifteen); and two counts of robbery, N.J.S.A. 2C:15-1, (Counts sixteen and seventeen). At sentencing nine years later on March 24, 2009, the court imposed consecutive fifteen terms subject to eighty-five percent parole ineligibility on each of the kidnapping charges (Counts seven and thirteen). The court then merged count six with count four; counts eight and nine with count five; count twelve with count ten; counts fourteen and fifteen with count thirteen; and count seventeen with count sixteen; and imposed concurrent thirteen-year terms on counts four, five, ten, eleven and sixteen, subject to the eighty-five percent parole bar, for an aggregate sentence of thirty years subject to the eighty-five percent parole disqualifier. Defendant appeals. We affirm save for a limited remand to correct the judgment of conviction to reflect a fifteen-year sentence on the kidnapping conviction encompassed in count thirteen.
Together with the same three confederates, defendant participated in two separate episodes over a three-day period involving two different women whom they forced into their truck and proceeded to rape at knife point. According to the State's proofs, on August 28, 1998, at 12:30 a.m., S.J. was at Elmwood Gardens on the corner of Elmwood Place and West Second Street in Plainfield. At 1:00 a.m., she walked about a block away to a phone booth near a Getty gas station to call her boyfriend for a ride. A white, two-door truck pulled up and a man exited to ask her for directions. S.J. was then grabbed from behind, and the assailant put a knife to her neck.
S.J. was forced into the back seat area of the truck. There were four Hispanic men in the truck, two in the front seat, and two in the back. The man in the driver's seat, later identified as defendant, was heavy set, with short, curly hair, and he told S.J. that they were from Mexico. He drove the truck to a spot on Wiley Avenue, parked the car, then drove a few more blocks and parked again. Then the two men in the back seat began to undress S.J. One of the men in the back seat had a box cutter, and the man in the front passenger seat had a knife. While her clothes were being pulled off, the driver told S.J. to perform oral sex on one man in the back seat and allow the other to have sex with her. One of the men in the back seat brandished the knife while penetrating her.
The two men then switched places at the driver's instructions, with the men in the front seat. When the two men in the front got into the back, the driver asked her to "suck his dick," which she did while the other man "put his dick in [her] butt." Once each male ejaculated, they switched so that "the fat one, Mario, would put his dick in [her] butt[,]" while she performed fellatio on the skinnier man. They both ejaculated and, although the driver never had a knife, the skinnier male who had initially accosted her did so. S.J. recalled the driver spoke English well, and the others spoke only Spanish. Throughout the rapes, the other men spoke Spanish to the driver, who then gave S.J. instructions in English. S.J. recalled one man was called Edward, another Jose, and the driver, Mario.
After the rapes, the men gave S.J. her clothes, but refused to return her pocketbook. When she was ordered out of the vehicle, the skinnier male with the knife pushed her with his hands against her back for her to run, before he returned to the truck.
S.J. then called the police and was taken to the hospital where she spoke with Detective Jorge Jiminez and gave a description of the truck and four individuals. She described Mario, the driver, as heavy-set with short, curly hair and the front seat passenger, who had initially accosted her with the knife, as skinny and short. One of the backseat passengers was fat with long, curly hair, while the other male was short and skinny and had possessed a box cutter-type knife.
S.J. was treated at the hospital. Semen was found on her shirt, semen and blood was found on her shorts, and blood was found in her rectal and vaginal swabs.
The second incident involved a woman named J.B. and occurred two days later on August 30, 1998. J.B. worked as a prostitute and was walking on Richmond and East Front Streets in Plainfield at around 2:00 or 3:00 a.m. in search of drugs. A white Blazer truck pulled alongside her and she recognized the driver, described as fat with curly hair, as someone named Mario whom she went to junior-high school with. The men in the front seat propositioned her for prostitution. She agreed to have sex with both of them for $20.00.
When she entered the truck, J.B. found two more men in the back seat. As the truck drove off, she indicated she wanted more money for the other two men, and also asked for a cigarette. The driver then pulled into a nearby Shell gas station, exited the vehicle and entered the convenience store.
At this time, the short Spanish male whom she was sitting next to pulled out a knife, put it against her neck and told her he would kill her.
When they drove off, she begged them not to kill her but was told to shut up, mainly by the driver. The truck eventually stopped about four blocks away in a dark area, at which time the men in the back removed her clothes while holding the knife to her neck. J.B. was forced to perform oral sex on all of the men, and had vaginal sex with two of them. It was "one right after the other." The driver was one of the two individuals who vaginally penetrated her. J.B. specifically remembers seeing the driver's face very clearly, noting, "I can always remember his face." At some point, before he had sex with J.B., the driver took the knife from one of the other men and placed it on the dashboard, saying no one was going to hurt her.
J.B. was forced out of the van still naked and the men threw her clothes at her. They kept her bag, however, which contained a phone, camera, and Sega Genesis. J.B. walked to the Shell gas station and called the police. Detective David Carmen responded, interviewed J.B., and took her to the hospital.
Later that day, Detective Jimenez learned of the second sexual assault involving a similar-type vehicle and similar descriptions of the perpetrators. He also learned one of the individuals involved in the second assault had gone to the Shell gas station/mini mart and purchased condoms before entering the vehicle and leaving. Jimenez went to the gas station on August 31 and obtained the surveillance video which depicted defendant buying condoms.
About a week later, J.B. accompanied Detectives Carmen and Brown around town and pointed out a two-door white Chevy Blazer as being similar to the vehicle she was raped in. Detective Carmen stopped the vehicle and was given permission by its owners to photograph it. Detective Carmen then scanned the photograph and broadcast it to the other units in the Plainfield Police Department. A few days later, Detective Carmen was driving in Plainfield with another officer when J.B. approached the patrol car. J.B. told the officers that she had seen a truck similar to the one driven by the men who raped her and provided them with the license plate of that vehicle.
On September 13 or 14, Detective Wilson, aware of the cases Detectives Carmen and Jimenez were working on and knowing the description of the suspect vehicle, observed the vehicle and stopped it. It was occupied by a heavy-set, Hispanic male who provided Wilson with his driver's license in the name of Emilio Giron. Wilson also recorded the license plate of the vehicle and defendant's residence.
As a result, Detective Wilson went to defendant's residence, and requested that he come to police headquarters to have his photo taken. Defendant complied. His photograph was included in an array that was shown to J.B. on September 17, at which time she positively identified defendant as one of her assailants and the driver of the vehicle. When a similar array was shown to S.J. that same day, she also identified defendant as one of her assailants and the driver of the vehicle. Defendant was arrested that evening based on these identifications.
In his statement to the police the next morning following Miranda*fn1 warnings, defendant acknowledged being involved in both incidents. He explained that he and his friends were returning from a night at a dancing club when they told him to find a prostitute. When they saw a woman on the phone at the Getty gas station, defendant stopped the Chevrolet Blazer, which belonged to his wife, and the woman agreed to go for a ride. While negotiating over price, "Eric (Quintanilla) got crazy and he put a knife at her throat." He then told her she was going to have sex with all of them while he held the knife at her throat. Defendant told Eric not to cut her or do anything stupid. While he indicated "the other guys had sex with her[,]" he stated he did not have sex with her but rather "[s]he gave me a blow job." Thereafter, they told her to get out of the car, during which time Oseas (Pons) took her out of the car and told her to run, after which they left.
The second incident also began as a search for a prostitute after a night of clubbing. When the victim they eventually found suggested their offer was "too cheap[,]" "Eric (Quintanilla) got crazy again and put the knife in her throat." Defendant told him not to do anything stupid. She began screaming not to kill her, and he tried to assure the woman they were not going to do anything to her. Defendant then parked the car and, as Eric and Pons held knives, "we started having sex with her." They told her to get out of the car, keeping ...