On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-03-00366.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Waugh.
By leave granted, we review an order granting defendant Raul D. Lopez's petition for post-conviction relief (PCR) which vacated his conviction of first degree kidnapping and third degree aggravated criminal sexual contact and ordered a new trial on these charges. The judge entered an order staying the new trial pending appeal.*fn1
The facts of the case are set forth in our opinion addressing defendant's direct appeal. State v. Lopez, 395 N.J. Super. 98, 104-06 (App. Div.), certif. denied, 192 N.J. 596 (2007). Briefly, defendant, then twenty-four years old, drove from the hotel in which he was staying in Edison to pick up thirteen-year-old M.B., a friend of another minor with whom he was chatting on line. Id. at 104. M.B. got in his car and they drove to Edison making two stops along the way. Ibid. M.B. and defendant entered his hotel room at about 1:00 a.m. and departed together the next morning at about 11:00 a.m. Ibid. The trial testimony centered on the different versions of what occurred in the hotel room. Ibid. M.B. provided a detailed description of sexual activity, including intercourse. Id. at 105. Defendant described hugging, kissing, and "touching her bare breasts under her clothing." Ibid.
The jury convicted defendant of first degree kidnapping during the
course of a crime, contrary to N.J.S.A. 2C:13-1c(2) (Count One); third
degree aggravated criminal sexual contact,
contrary to N.J.S.A. 2C:14-3a, as a lesser included offense of second
degree sexual assault (Count Three); and third degree endangering the
welfare of a child, contrary to N.J.S.A. 2C:24-4a (Count Four). The
trial judge imposed an aggregate seven-year term of imprisonment
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.*fn2
The State invoked the ten-day stay provision of Rule
3:21-4(i) and appealed the sentence. It contended the judge imposed an
illegal sentence. Defendant filed a cross-appeal raising eight
arguments, including an argument that the trial judge failed to
provide a legally adequate instruction on kidnapping and that his
sentence was manifestly excessive.
On appeal, we affirmed the conviction but vacated the sentence as illegal and remanded for entry of a twenty-five-year term on the kidnapping charge subject to a twenty-five-year mandatory minimum term. Lopez, supra, 395 N.J. Super. at 108-09. Judge Nieves re-sentenced defendant as instructed.
On March 9, 2009, defendant filed a pro se "Petition to Correct an Illegal Sentence" in which he argued that the trial judge failed to instruct the jury on all elements of aggravated criminal sexual contact and this omission tainted the kidnapping conviction. Defense counsel asserted defendant had never been informed of a pre-trial plea offer extended by the prosecutor. Judge Nieves conducted an evidentiary hearing. Two further hearings occurred and defendant obtained new counsel in Spring 2011. Treating defendant's petition as one for PCR, the judge denied the ineffective assistance of counsel claim based on the failure of defense counsel to communicate a plea offer of three years with no mandatory minimum term. The judge found the assistant prosecutor's testimony credible. She testified she communicated a "three years flat" offer but defendant rejected it. The judge also found defendant's testimony credible. He testified that he refused to enter a guilty plea to any sexual offense. The judge held this admission by defendant prevented PCR because he could not satisfy the two-prong Strickland*fn3 /Fritz*fn4 standard.
Addressing the contention that the trial judge delivered an erroneous instruction on the first degree kidnapping charge, Judge Nieves held the instruction on aggravated criminal sexual contact omitted critical elements. He held the omission undermined both the kidnapping and aggravated criminal sexual contact convictions. The judge also held that aggravated criminal sexual contact is not a lesser included offense of sexual assault, although it is a lesser included offense of aggravated sexual assault. The judge stated:
[The trial judge] failed to give a complete jury instruction on aggravated sexual assault. He charged the jury as follows . . .: "So for you to find Mr. Lopez guilty of aggravated criminal sexual contact upon [M.B.][,] the State must prove beyond a reasonable doubt each of the following elements: First, that Mr. Lopez committed an act of criminal sexual contact upon [M.B.]. And, second, that [M.B.] was at least 13 years of age but less than 16 years old at that time." Although he properly charged the elements of the other crimes, the jury could not have known to apply the relevant element from aggravated sexual assault which instructed that it must have occurred during the course of a kidnapping to aggravated sexual contact.
During the charge on kidnapping, he charged the jury with determining whether aggravated sexual assault, sexual assault, or aggravated criminal sexual contact occurred during the kidnapping, but in failing to properly charge the jury with respect to aggravated criminal sexual contact[,] it is likely that the deliberative process was tainted with confusion. Certainly, [the trial judge] asked the jury to consider if aggravated sexual contact occurred during the kidnapping charge but considering he should have never charged aggravated sexual contact as a lesser included of sexual assault[,] it can hardly be considered sufficient to cure the possibility of confusion.
The judge also held that the bar of issues that were raised or could have been raised on direct appeal, Rule 3:22-4 and-5, did not apply. The judge reasoned that the errors in the charge undermined the integrity of the process and required a new trial.
On appeal, the State raises the following arguments:
POINT I SINCE THE GUILTY VERDICT IN 2004,
JUDICIAL BIAS HAS BESET THIS CASE AND JUDGE NIEVES' ANIMUS AGAINST THE MANDATORY SENTENCE DEFENDANT MUST SERVE FOR HIS FIRST DEGREE KIDNAPPING CONVICTION ADVERSELY INFLUENCED HIS DECISION MAKING IN THIS CASE.
POINT II THE PROCEDURAL BARS OF R. 3:22-5 AND R.
3:22-4 APPLY HERE AND DEFENDANT'S CLAIM CONCERNING THE INEFFECTIVENESS OF APPELLATE COUNSEL FOR FAILURE TO ADDRESS THE AGGRAVATED CRIMINAL SEXUAL CONTACT CHARGE IS PROCEDURALLY ...