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State v. McKane

Superior Court of New Jersey, Appellate Division

December 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
MIKE MCKANE, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 21, 2013

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-07-1115.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Before Judges Harris and Kennedy.

PER CURIAM.

Defendant appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

Defendant was convicted following a jury trial of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); second-degree robbery, N.J.S.A. 2C:15-1; and second-degree burglary, N.J.S.A. 2C:18-2. At sentencing, the trial court granted the State's application to impose an extended term upon defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). On count three, which charged first-degree aggravated sexual assault, the judge sentenced defendant to a fifty-year term of incarceration, subject to an 85% term of parole ineligibility pursuant the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The remaining counts were merged with count three.

We recount the relevant facts of these crimes, as stated in our opinion, State v. McKane, No. A-1300-09 (App. Div. October 15, 2010) (slip op. at 3-6), affirming the convictions, [1]

In the early hours of December 17, 2005, after returning to her first-floor apartment in Jersey City from an office Christmas party and a very brief date, the victim, G.B., became immersed in online computer activities. Suddenly, an uninvited male emerged from the bedroom. The stranger -- clad in all black and wearing a ski mask or hood drawn close to his face --approached where G.B. was sitting. The individual made a gesture as if he were carrying a gun, and then demanded "something along the lines of where is the money." As the perpetrator grabbed G.B. by the throat and forced her into the kitchen, she gave defendant three hundred-dollar bills from a coffee cup. A struggle ensued as the man pushed G.B. back into the living room, all the while holding her throat, making it difficult for her to breathe and speak. The attacker then began to sexually assault G.B. She was able to convince him to put on a condom, after which he proceeded to rape G.B. for approximately forty minutes.
Once the assault concluded, the intruder attempted to have a conversation with G.B. to the point of apologizing for breaking into her apartment. He also went into the kitchen to help himself to some food and water. The victim was able to retain the Poland Spring bottle defendant drank out of for evidence, in addition to recovering the condom defendant used during the rape. Shortly thereafter, the assailant left the apartment through G.B.'s bedroom window.
Thirty minutes after the attack, the victim called 9-1-1. After the police arrived, she explained what had happened and was subsequently taken to the hospital where a medical examination was conducted and evidence -- using a rape kit -- was gathered. A nurse observed that there were marks on G.B.'s neck consistent with choking, and that there was redness and swelling of the vaginal area, consistent with traumatic sexual intercourse. G.B. was ...

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