On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-05-0775.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011
Before Judges Grall, Alvarez and Skillman.
A jury found defendant John M. Gordet guilty of second-degree sexual assault involving the use of physical force or coercion, N.J.S.A. 2C:14-2c(1); third-degree terroristic threats, N.J.S.A. 2C:12-3b; and simple assault, N.J.S.A. 2C:12- 1a. The jury found him not guilty of first-degree kidnapping, N.J.S.A. 2C:13b(1)-(2), and two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3). The judge sentenced defendant to a nine-year term of imprisonment for sexual assault, which is subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, and to concurrent terms of three years for terroristic threats and six months for simple assault.
On appeal defendant challenges his conviction and his sentence. He argues:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PRECLUDING THE DEFENDANT FROM INTRODUCING EVIDENCE REGARDING STATEMENTS THE ALLEGED VICTIM MADE THAT COMPROMISED HER CREDIBILITY.
II. THE DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE HE DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.
III. THE TRIAL COURT FAILED TO APPLY THE APPROPRIATE MITIGATING FACTORS, AND MADE WRONGFUL FINDINGS REGARDING THE DEFENDANT'S PRIOR RECORD.
B.K. and defendant met on the night of December 5, 2007 at a party in an apartment in Brick, New Jersey. She was seventeen years old and defendant was twenty-seven. B.K. and her friends Corey, Traci, Annie and Bobby were invited to the party by Tony, a friend of Corey's whom they saw at a gas station. There were about fifteen people at the party, where there was dancing, card playing and drinking. B.K. had three or four beers and then a forty-ounce bottle of beer.
While Traci and B.K. were dancing together, defendant danced close to them. According to Traci when they first met defendant, B.K. had given her a "look" that Traci took to mean that B.K. was not "too fond of [defendant]." B.K. testified that she thought defendant was "skeevey."
The party broke up when the police arrived to deal with a couple arguing outside, but a friend of Bobby's, Michelle, invited the group to her apartment. B.K., Corey and Tony agreed to ride in defendant's car because, with the addition of Bobby's friend, there was no room for them in the other car and because Corey agreed to ride with B.K. in the backseat. After a short time, the four of them left Michelle's and went to the home of defendant's mother and stepfather.
Defendant's parents were not there. The visit was brief. Defendant stared at B.K. but did not speak much and suddenly told his guests he was going ...