On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-08-1362.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2012
Before Judges Sabatino and Ashrafi.
Defendant Christopher Gonzalez stood trial twice before two juries, both of which found him guilty of criminal offenses. He appeals from the resulting judgment of conviction and a sentence of imprisonment for kidnapping, armed robbery, aggravated assault, and weapons offenses. We affirm.
In 2007, a Middlesex County grand jury indicted defendant and three others, Sammy Santiago, Vanessa Santana, and Cruz DeJesus, on the following charges: (count one) second-degree conspiracy to commit armed robbery, kidnapping, and burglary, N.J.S.A. 2C:5-2; (count two) first-degree armed robbery, N.J.S.A. 2C:15-1; (counts three and twelve) second-degree kidnapping, N.J.S.A. 2C:13-1b; (count four) fourth-degree criminal restraint, N.J.S.A. 2C:13-2; (count five) second-degree burglary while armed, N.J.S.A. 2C:18-2; (count six) third-degree theft, N.J.S.A. 2C:20-3; (count seven) fourth-degree unlawful theft of a credit card, N.J.S.A. 2C:21-6c; (count eight) second-degree possession of a weapon for an unlawful purposes, N.J.S.A. 2C:39-4a; (count nine) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; (count ten) fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and (count eleven) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2.
Defendant and his co-defendants were tried two times because the first jury only reached a verdict on some counts of the indictment. At the first trial in January and February 2008, the jury found defendant guilty of eight counts but was unable to reach a unanimous decision on the two kidnapping counts, the aggravated sexual assault count, and part of the conspiracy count. The first jury also found Vanessa Santana guilty of two counts related to theft and use of a debit card at an ATM machine, but it was unable to reach a unanimous verdict as to any other counts against the three co-defendants.
At the second trial in May and June 2008, the jury found defendant Gonzalez guilty of both kidnapping counts and conspiracy to commit kidnapping and burglary, but it found him not guilty of aggravated sexual assault. The second jury was again unable to reach a unanimous verdict on any counts as to co-defendant Santiago, and it acquitted Vanessa Santana and Cruz DeJesus of all charges they were facing in the second trial.
In September 2008, the court imposed on defendant terms of imprisonment aggregating a total of thirty-two years in prison, with eighty-five percent of the term to be served before eligibility for parole in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In this appeal, defendant raises the following arguments:
THE JURY'S VERDICTS WITH RESPECT TO BOTH KIDNAPPING CHARGES EMBODIED IN COUNTS III AND XII AS WELL AS THE CRIMINAL RESTRAINT CHARGE EMBODIED IN COUNT IV WERE AGAINST THE WEIGHT OF THE EVIDENCE.
A. THERE WAS INSUFFICIENT CREDIBLE EVIDENCE ELICITED AT TRIAL TO ESTABLISH THE REQUISITE ELEMENTS OF SECOND DEGREE KIDNAPPING OF EITHER CRUZ DeJESUS OR [M.G.].
B. THERE WAS INSUFFICIENT CREDIBLE EVIDENCE ELICITED AT TRIAL TO ESTABLISH THE REQUISITE ELEMENTS OF CRIMINAL RESTRAINT OF EITHER VICTIM EMBODIED IN COUNT IV OF THE INDICTMENT.
THE PROSECUTOR'S SUMMATION IN THE FIRST TRIAL EXCEEDED THE BOUNDS OF PROPRIETY.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL DURING THE SECOND TRIAL AS A RESULT OF THE PROSECUTOR'S CROSS-EXAMINATION OF THE DEFENDANT WHICH IMPROPERLY REFERENCED A PORTION OF CO-DEFENDANT SANTIAGO'S STATEMENT TO THE POLICE WHICH HAD BEEN REDACTED, AND WHICH INFRINGED UPON THE DEFENDANT'S RIGHT OF CONFRONTATION AS WELL AS INFERENTIALLY ESTABLISHING HIS CRIMINAL CULPABILITY.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AT THE FIRST TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER ESSENTIALLY EXPRESSING HIS OPINION REGARDING THE DEFENDANT'S GUILT (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AT THE FIRST TRIAL ARISING OUT OF TESTIMONY ELICITED FROM A STATE'S EXPERT WITNESS WHICH IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF TO THE DEFENSE.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Before addressing these arguments, we will recount the pertinent evidence presented at the trials.
The crimes were committed on July 21, 2006, at the Woodbridge
apartment of M.G., who was pregnant, and her boyfriend Cruz DeJesus,
who is the father of the co-defendant with the same name.*fn1
At approximately 10:45 a.m. on that date, M.G. left the
apartment to drive a relative to work. She saw a man outside whom she
later identified as defendant. Most significant for purposes of
identification, her description of the man to the police accurately
included reference to a scar over the eye, which defendant had.
When M.G. returned to the apartment about forty minutes later that morning, defendant was in the hallway and spoke to her in English, but she could not understand him because she only speaks Spanish. Another man stepped forward holding a small silver gun. He announced a robbery in Spanish and ordered her to open the apartment door. M.G. could not open the door because it was secured by a door chain. At the trials, M.G. did not identify the second man. She had given the police a description that was both consistent and inconsistent with co-defendant Santiago's features.
DeJesus testified that he was alone in the apartment that morning and had just gotten out of the shower. Wearing only a towel, he unlatched the chain for M.G., and two men pushed her through the door onto the floor. He said one of the men pointed a small, silver-plated revolver at him. The men then pulled his towel off, covered his head with the towel, threw him on the floor, and demanded money, jewelry, and bank cards. DeJesus later told the police he saw the men only briefly and was not able to identify them. At the first trial, he made no identification. At the second trial, he testified he could identify Santiago.
At the time of the incident, DeJesus was on parole for a 2005 conviction for drug offenses, and he had an extensive criminal record for selling drugs. At the trials, he denied the men were looking for drugs. He claimed he no longer sold drugs and had none in the apartment. M.G. also testified that the men did not ask for drugs and claimed she had never seen cocaine or marijuana in the apartment.
The men ordered DeJesus into his bedroom. He crawled on his hands and knees and lay on the floor while the men searched the bedroom. At some point, the men tied DeJesus's hands behind his back with a plastic tie. One of the men placed a gun to DeJesus's head and threatened to "kick the baby out of [M.G.]" if he did not reveal the pin number for his ATM card. DeJesus complied with the demand. The men then put DeJesus in a closet and tied his feet together with a plastic tie.
M.G. testified that the men also tied her hands behind her back with a plastic zip tie, and they put her in a separate closet in the bedroom after removing her jewelry. According to M.G., while the Spanish-speaking man ransacked the apartment, defendant took her out of the closet and brought her to another bedroom where he sexually assaulted her.
The Spanish-speaking man took DeJesus's credit and debit cards and left the apartment. He was gone less than fifteen minutes. A bank statement admitted in evidence showed that at 12:45 p.m. that day a person later determined by photographic evidence to be co-defendant Vanessa Santana withdrew $1,000 from DeJesus's account at a bank ATM machine located about one mile from the Woodbridge apartment.
According to M.G.'s testimony, while the Spanish-speaking man was gone, defendant took her out of the closet and brought her to a bedroom where he sexually assaulted her again. M.G. testified that she screamed during the assault. DeJesus, who was still tied up in a closet, testified that he heard M.G. scream and called out to her.
The two intruders left the apartment shortly after the Spanish-speaking man returned from the bank. About fifteen minutes to an hour later, DeJesus freed his hands and used scissors to cut the tie binding his feet. He found M.G. lying on her stomach on a bed, fully clothed, her hands and feet bound, and crying hysterically. M.G. told DeJesus she had been raped. After being untied, she immediately used the toilet, showered, brushed her teeth, and changed her clothes.
DeJesus spent some time looking for his cell phone. When he found it, he first called the bank to see if he could stop access to his account. He was informed that $1,000 had already been withdrawn. At 2:08 p.m., he made a 911 call to the police.
Later that afternoon, Peter Gozsa, a crime scene investigator with the prosecutor's office, arrived at the scene and began photographing the apartment and collecting evidence for DNA and fingerprint analysis, including sheets, pillows, clothes, plastic zip ties, cigarette butts found on the floor, and a mask found on the coffee table. Gozsa found no drugs or drug paraphernalia in the apartment. Although he dusted almost the entire apartment for fingerprints, he found only one identifiable set of prints, and they belonged to M.G. Gozsa also ...