On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0147.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Messano and Yannotti.
Following a jury trial, defendant Pedro Soler was convicted of two counts of second-degree sexual assault upon M.R., N.J.S.A. 2C:14-2(c)(1), and N.J.S.A. 2C:14-2(c)(3)(b) (Counts Two and Three). The jury acquitted defendant of first-degree aggravated sexual assault. N.J.S.A. 2C:14-2(a) (Count One).*fn1
The trial judge granted the State's motion for an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6.4(e), and N.J.S.A. 2C:44-3(a), merged the two convictions, and sentenced defendant to eighteen years in prison, with an eighteen-year period of parole ineligibility.
Defendant raises the following points on appeal:
SINCE THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO PROCEED PRO SE, DEFENDANT'S CONVICTION SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL. POINT II
THE TOTALITY OF THE TRIAL COURT'S INSTRUCTION ON "PHYSICAL FORCE" IMPROPERLY SHIFTED THE BURDEN ONTO DEFENDANT TO PROVE A HEIGHTENED DEFINITION OF CONSENT, THEREBY MANDATING THE REVERSAL OF THE SEXUAL ASSAULT CONVICTION. (Not Raised Below)
THE TRIAL COURT'S INSTRUCTION REGARDING "SUPERVISORY OR DISCIPLINARY POWER" PURSUANT TO THE SEXUAL ASSAULT PROVISION OF N.J.S.A. 2C:14-2[(c)(3)(b)] UNDULY FAVORED THE STATE AND WAS INADEQUATE, THEREBY REQUIRING THE REVERSAL OF DEFENDANT'S SEXUAL ASSAULT CONVICTION (COUNT THREE) AND A NEW TRIAL. (Not Raised Below)
THE IMPOSITION OF AN EXTENDED 18-YEAR SENTENCE OF IMPRISONMENT WAS EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We affirm but remand the matter for entry of an amended judgment of conviction.
In the fall 2005, sixteen-year-old M.R., a high school senior, met Javier Romero in a bank. Romero told her of a potential job opening at his company, Point Management Group, and the two exchanged phone numbers. In December, Romero called M.R. at home and left a message that a secretarial position was open. M.R. returned the call, spoke to an individual known as "Peter," and arranged to go to the office for an interview on December 15.*fn2
When she arrived at Point Management's offices, M.R. was greeted by defendant, who "looked very professional" and "seemed to be very approachable." He told M.R. to come back the next day, which she did. Defendant administered a typing test, conducted a further interview and offered M.R. a job beginning the following Monday, December 19.
M.R. arrived at the office on Monday afternoon after finishing school. After she was there for approximately forty minutes, defendant called her into his office. He asked "if [she] ever stepped outside the box." Defendant then asked M.R. if she would "mind going out to lunch with [him]?" She agreed, and defendant told M.R. to tell the office manager that she had to leave "to do something for school."
M.R. did as defendant asked and returned to defendant's office. He told her to leave first, and that he would follow and meet her outside. When M.R. left the office, defendant was already outside waiting in his car. M.R. got into the car and defendant drove to a building on Route 22 and parked. M.R. noticed the building "had no sign," but she saw other cars parked outside.
Once inside, M.R. realized the establishment was a "go-go bar." Several of the scantily-clad dancers addressed defendant by name, and M.R. concluded that defendant was "a regular." Defendant ordered drinks for himself and M.R. After approximately an hour, M.R. felt dizzy and nauseous, went to the bathroom and vomited. Several of the dancers came into the bathroom to make sure she was alright, and one warned her "to be careful." When M.R. returned to the bar, defendant took her to a back room that was dark and designated for private "lap dances." He sat her in a chair, began kissing her and removed her pants and underwear.
Defendant performed oral sex on M.R. and penetrated her vagina with his fingers and penis. She explained:
I didn't know what to think. It just felt, kind of, like it was a blur at that moment. . . . I didn't know what was going on, and on top of that I see him doing these things, but then I can't, I can't seem to respond with my body to what is going on.
M.R. told defendant "no," but could not "physically resist." Defendant ignored her pleas, picked her up from the chair and ...