On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 09-09-1606 and 06-01-0089.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2012
Before Judges Fisher, Alvarez and St. John.
In this appeal, defendant argues the trial judge erred in denying his motion for acquittal on the kidnapping charge, there was insufficient evidence to convict him of kidnapping, the prosecutor made inappropriate statements during his summation, the trial judge improperly imposed consecutive terms, and the sentence was otherwise excessive. We find no merit in the arguments impacting defendant's conviction but we remand for reconsideration of the sentence due to errors and uncertainties.
Defendant was charged with and, at the conclusion of a trial in August 2010, convicted of: first-degree kidnapping, N.J.S.A. 2C:13-1; two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1).
Defendant had previously been convicted in 2008 of fourth-degree criminal sexual contact and simple assault that occurred in 2005. At the sentencing proceeding in December 2010, defendant pleaded guilty to violating the terms of probation imposed on the 2008 conviction. At that time, defendant was also sentenced in this matter to: a twenty-five year prison term, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree kidnapping conviction; a consecutive fifteen-year prison term, also subject to an 85% NERA period of parole ineligibility, on one of the first-degree aggravated sexual assault convictions; and a consecutive eighteen-month term on the probation violation. Concurrent terms were imposed on the other convictions.
Defendant appeals, arguing:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION OF ACQUITTAL ON THE KIDNAPPING CHARGE AT THE CONCLUSION OF THE STATE'S CASE.
II. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE CONVICTION FOR KIDNAPPING MUST THEREFORE BE REVERSED.
III. THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE SUMMATION, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL, AND THE CONVICTIONS MUST THEREFORE BE REVERSED.
IV. THE SENTENCE SHOULD BE VACATED AND THIS MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCE IMPOSED IS EXCESSIVE.
A) The sentencing court improperly based the length of the sentence on the NERA team.
B) The sentencing court failed to properly weigh the mitigating and ...