October 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEPHEN HERNANDEZ, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 aggravating factors.
C) The sentencing court erred in imposing consecutive sentences.
We find insufficient merit in Points I, II and III to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding Points I and II, which require a brief summary of the evidence.
The evidence regarding what occurred between defendant and V.A., his victim, was disputed in a number of respects. The State offered evidence to show that V.A. and her friends went out for the evening in downtown Manhattan on March 7, 2009. They spent a good part of the night at a restaurant on Reade Street. When the restaurant closed at what was then 5:00 a.m. on March 8,*fn1 V.A. spoke on her cellphone to her boyfriend and decided to go to his residence on 179th Street in the Bronx.
V.A. and her three friends took a taxi from downtown Manhattan to a location in the Bronx preferred by two of V.A.'s friends; this location was on the other side of the borough from V.A.'s desired destination. V.A. and her remaining companion hailed another taxi but then disagreed about how they were going to pay the fare, resulting in V.A. alone exiting the taxi on 145th
Street in order to take the subway.
While standing on 145th Street, V.A. rested her large pocketbook on a parked car and began rummaging for money or her Metro card when a Volkswagen with New Jersey plates made a U-turn and stopped where V.A. stood. The driver -- defendant --expressed concern to V.A. because she was there alone late at night and offered to give her a lift to the Grand Concourse, which, he said, was on his way home. V.A. consented to his offer of a ride and entered defendant's car.
V.A. soon realized something was wrong when defendant passed 181st Street. She expressed concern but defendant told her "to relax" and drove onto the George Washington Bridge toward New Jersey. With this, V.A. contemplated jumping out of the car but was afraid of the surrounding traffic. When she saw the "Welcome to New Jersey" sign, V.A. screamed at defendant, asked why they were in New Jersey and demanded exit from the vehicle. Defendant again told her to relax and kept driving along streets with which V.A. was not familiar, while V.A. continued to demand that he return to New York. Eventually, defendant stopped the car in what appeared to be a park. He fondled V.A. and then drove to another grass-covered area.
Defendant then parked the car in a secluded spot and began to unbuckle his pants. V.A. opened the door to run out of the vehicle, but defendant grabbed her and said he only had to urinate. With defendant so preoccupied, V.A. tried to run away. She saw above their location a roadway with a traffic light and what looked to her to be a grocery store. While she sought to hide among trees or bushes, defendant ordered her to return to the car. She refused, and defendant got aggressive. V.A. tried to run away but defendant caught up with her and pushed her down hard on her back. When V.A. continued to resist, defendant warned her to "let it happen or I'll fucking bury you."
Concerned for her survival, V.A. began presenting reasons as to why defendant should stop. She suggested to defendant that they could return to her apartment or go to a hotel. This seemed to work, as defendant helped V.A. off the ground, apologized, and began cleaning the dirt off her clothes. They returned to defendant's car, but defendant did not start the car to drive elsewhere and made additional sexual overtures. V.A. refused and defendant again became aggressive. He ordered V.A. to masturbate and perform oral sex on him. Because V.A. could not stop crying, defendant became even more aggressive, exited his side of the vehicle and opened the passenger door, threatening to forcibly anally penetrate her. With that, V.A. pleaded with defendant to return to the car and she would perform oral sex on him. Defendant got back in the driver's seat but V.A. continued to cry, causing defendant to again get out of the vehicle, open the passenger door and forcibly anally penetrate V.A.
After, defendant returned to the driver's seat, he apologized and drove back across the George Washington Bridge. Defendant asked V.A. where she lived, and she told him 145th Street; he dropped her off on 149th Street. In order to obtain information to assist in defendant's apprehension, V.A. asked defendant for his name and telephone number. And, after exiting the car, V.A. wrote down defendant's license plate number, although she was unable to write the last number by the time defendant drove away.
V.A. had noticed a parked patrol car in the area where defendant let her out. She ran to it and sought assistance. The officers testified that V.A. told them that she accepted a ride from a stranger who took her over the bridge to a park in New Jersey where he forced her to perform oral sex and then anally raped her. V.A. also pointed out defendant's car, which was still in sight, to the officers.
The officers had V.A. get into their patrol car. They pursued defendant's vehicle, but defendant made several illegal turns and was able to get away. The officers broadcasted a description of the vehicle and the partial license plate provided by V.A., and the officers then drove V.A. to a nearby hospital.
At trial, the State provided evidence of V.A.'s physical condition consistent with her claims of rape. V.A. later identified defendant from a photograph shown to her by an investigating officer. The license plate numbers V.A. provided were consistent with those on defendant's vehicle. Defendant was arrested, and a search of the interior of his vehicle provided additional evidence that V.A. had been in the car and evidence that supported V.A.'s other assertions, such as dried mud and dirt on the floor mats and on the driver's side door. A videotape produced by a camera outside the building on 145th Street -- where V.A. was standing when defendant stopped to pick her up -- also confirmed V.A.'s claims.
Defendant testified on his own behalf, acknowledging he was in Manhattan early in the morning of March 8, trying to locate a friend, when he saw V.A. on the street looking through her pocketbook. He asked if she wanted to hang out with him, and she agreed and got into his car. He testified he told V.A. that he lived in New Jersey and that she agreed to accompany him there. He also testified that they parked in a "lover's lane" in the Hackensack area. Defendant denied sexually assaulting
V.A.; instead, he claimed that he promised to pay her and that their sexual encounter was consensual. Defendant testified that when he later dropped V.A. off in New York City, he gave her a $20 bill, and that V.A. responded incredulously and started yelling. Defendant also testified that he did not hear the siren of the patrol car that pursued him and that he was not trying to flee the police.
In Point I, defendant argues that the trial judge erred in denying his motion for a judgment of acquittal on the kidnapping charge. Such a motion must be denied when, in viewing the State's evidence in its entirety, and after giving the State the benefit of all reasonable inferences, a jury could find guilt beyond a reasonable doubt. State v. D.A., 191 N.J. 158, 163 (2007); State v. Reyes, 50 N.J. 454, 458-59 (1967). We apply the same standard in reviewing a trial judge's ruling on such a motion. State v. Spivey, 179 N.J. 229, 236 (2004); State v. Moffa, 42 N.J. 258, 263 (1964).
Defendant contends that the evidence indisputably showed that V.A. entered defendant's vehicle voluntarily. That fact does not require acquittal. A kidnapping occurs not just when the removal or confinement of the victim is by force or threat, but also when it occurs through deception. N.J.S.A. 2C:13-1(d). The evidence may suggest that V.A. willingly entered the vehicle but she did so because, according to her testimony, which the jury was entitled to credit, defendant offered her a ride to another location in the Bronx and not a trip to New Jersey for the purpose of rape. Moreover, even if V.A.'s entry into the vehicle was voluntary, her desire to remain in the vehicle quickly changed. V.A. complained as soon as defendant unexpectedly began driving to New Jersey and she made attempts to get out of the car while it was parked in New Jersey but was restrained against her will. The evidence supports the State's contention that V.A. was removed a substantial distance from where she was found and confined for a substantial period of time. N.J.S.A. 2C:13-1(b). In light of that evidence, the judge correctly rejected defendant's argument as to the sufficiency of the State's proofs and properly denied the motion to acquit.
For much the same reasons -- together with the fact that defendant never moved for a new trial, see R. 2:10-1; State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997) -- we reject defendant's argument that the kidnapping conviction was against the weight of the evidence.
We lastly consider defendant's Point IV and, in that regard, remand for reconsideration of the sentence. We initially observe that the judge did not exceed his discretion in imposing consecutive terms on the kidnapping and aggravated sexual assault convictions. Instead, we remand for reconsideration of the sentence in other respects. First, the judge expressly stated that he had considered the effect of NERA in fixing the length of the prison terms imposed; as defendant argues, and the State agrees, this was erroneous. State v. Bieniek, 200 N.J. 601, 610 n.1 (2010). We also conclude that the judge's findings regarding aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of the offense), and aggravating factor two, N.J.S.A. 2C:44-1(a)(2) (the gravity and seriousness of the harm inflicted on the victim), suggest an inappropriate double-counting because the lengthy prison terms authorized by the Legislature for the kidnapping and aggravated sexual assault offenses presupposed the severity of the offense and harm to the victim. These factors should be applied or only given weight in the analysis when the circumstances of the offense and the gravity of the harm were more serious than others of their class. State v. Kromphold, 162 N.J. 345, 353 (2000). The judge should reconsider the sentence imposed as a result of these limitations.
In addition, the judgment of conviction did not clearly specify whether the periods of parole supervision imposed on the kidnapping and aggravated sexual assault convictions were intended to run concurrently or consecutively. The trial judge should reconsider this circumstance in light of State v. Friedman, 209 N.J. 102, 120 (2012), and amend the judgment of conviction to reflect his determination on that point. Also, the trial judge was not clear about the penalties imposed and appears not to have considered whether some of these convictions should have merged for sentencing purposes; these matters should be revisited.
Affirmed in part, remanded in part for reconsideration of the sentence in conformity with this opinion. We do not retain jurisdiction.