On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1277.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Ashrafi.
In State v. Betancourt, No. A-2981-07 (App. Div. Nov. 30, 2009), certif. denied, 201 N.J. 446 (2010), we affirmed defendant's conviction for third-degree aggravated assault of his estranged wife in a severe incident of domestic violence,
but we reversed his conviction on first-degree kidnapping because of incomplete jury instructions. Tried a second time before a jury and found guilty again of kidnapping, defendant, now using the name Paul Rodgers,*fn1 appeals from his conviction on retrial and from his sentence of forty years imprisonment. We affirm.
On May 9, 2006, defendant beat and injured his wife, from whom he was separated, and then he confined her in her own apartment until she was able to escape to the street. The amount of time that the victim was confined was hotly disputed at both trials. The defense argued that it lasted only a minute or two. The victim testified that it was "about an hour, maybe two hours," including a period of time during which she was unconscious from the initial beating. After her escape from the apartment with a bloody nose and contusions to her face and body, the victim was aided by an off-duty police officer who called emergency medical personnel.
The circumstances of the beating and confinement are narrated in greater detail in our previous opinion, and we adopt that statement of facts for purposes of this opinion since the evidence at the second trial was essentially identical to that at the first trial. Betancourt, supra, slip op. at 2-4.
The jury at the first trial found defendant guilty of first-degree kidnapping, N.J.S.A. 2C:13-1b, and third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and it acquitted him of two other charges. Betancourt, supra, slip op. at 5. We affirmed defendant's conviction and five-year sentence on the aggravated assault charge, but we reversed and granted defendant a new trial on the kidnapping charge because we found plain error in the failure of the attorneys to request and the trial court to give jury instructions that would have permitted consideration of a lesser-included third-degree offense of criminal restraint, N.J.S.A. 2C:13-2. Betancourt, supra, slip op. at 16-20, 29.
At the retrial on the kidnapping charge, the court instructed the jury on the lesser-included crime of criminal restraint as well as a lesser-included disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3. The jury found defendant guilty of kidnapping as charged in the indictment, and the court again imposed an extended term sentence, pursuant to N.J.S.A. 2C:44-3a and 2C:43-7a(1), of forty years imprisonment with eighty-five percent of the sentence to be served before eligibility for parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appeals his kidnapping conviction and sentence, raising the following arguments:
THE EVIDENCE PRESENTED WAS LEGALLY INSUFFICIENT TO CONVICT DEFENDANT OF KIDNAPPING.
THE NEED FOR A LESSER-INCLUDED OFFENSE INSTRUCTION ON ATTEMPTED KIDNAPPING WAS CLEARLY INDICATED BY THE RECORD (NOT RAISED BELOW).
PURSUANT TO STATE V. CASILLA, THE COURT SHOULD CORRECT THE JUDGMENT OF CONVICTION TO INDICATE A JURY VERDICT FOR SECOND-DEGREE KIDNAPPING BECAUSE THE JURY WAS NEVER INSTRUCTED ON, AND NEVER FOUND, THE ELEMENT WHICH ELEVATES A SECOND-DEGREE KIDNAPPING TO FIRST-DEGREE ...