May 6, 2019
appeal from Superior Court of New Jersey, Law Division,
Passaic County, Indictment No. 14-11-0932.
Yael Lerer, Assistant Deputy Public Defender, argued the
cause for appellant (Joseph E. Krakora, Public Defender,
attorney; Joshua David Sanders, Assistant Deputy Public
Defender, of counsel and on the brief).
Valeria Dominguez, Deputy Attorney General, argued the cause
for respondent (Gurbir S. Grewal, Attorney General, attorney;
Sarah Lichter, Deputy Attorney General, of counsel and on the
Judges Haas, Sumners and Susswein.
case arises from a violent criminal episode during which
defendant Juan Cruz-Pena subjected his victim to four to five
hours of uninterrupted sexual abuse. Defendant was acquitted
at trial of the most serious sexual offense with which he was
charged - first-degree aggravated sexual assault - but was
found guilty of first-degree kidnapping, third-degree
aggravated criminal sexual contact, and third-degree
aggravated assault. He appeals only from his kidnapping
conviction, claiming that the victim's confinement was
merely incidental to the underlying sex crime and, therefore,
the kidnapping charge should not have been submitted to the
jury. We agree.
record clearly shows that the victim's confinement was
inherent in the sexual abuse defendant inflicted upon her.
The force and threat of force defendant used to restrain the
victim were the same force and threats he used to accomplish
the sex crime with which he was separately charged.
Furthermore, the risk of harm the victim faced throughout her
hours-long ordeal, while substantial, was not independent of
the danger posed by defendant's continuous sexual attack.
We therefore conclude that in accordance with authoritative
precedent interpreting the New Jersey Code of Criminal
Justice, N.J.S.A. 2C:13-1(b), the kidnapping charge should
not have been submitted to the jury.
derive the following facts from the evidence presented by the
State at trial. In the early morning hours of May 22, 2014,
was walking along Van Houten Street in Paterson, New Jersey,
when she saw her friend, Lillian, on a covered porch of an
abandoned house. Lillian was talking to two men that C.M. did
not recognize. They were later identified as defendant and
co-defendant Daniel Ortiz. C.M. voluntarily came up on the porch
and joined the three individuals in conversation. At some
point, C.M. gave Lillian sixteen dollars and dispatched her
to purchase heroin and crack cocaine. While waiting for
Lillian to return with the drugs, C.M. and defendant
negotiated a deal for C.M. to provide oral sex in exchange
for twenty dollars. When Lillian returned, C.M. and Lillian
ingested the drugs. Soon after, Lillian left a second time to
purchase more drugs, this time with money supplied by
defendant. She never returned.
C.M. realized that Lillian was not coming back, she attempted
to leave the porch. Defendant told her that she could not
leave. He demanded that she reimburse him for the money he
had given to Lillian to purchase drugs, and he punched C.M.
in the face, causing her head to slam violently into the
wall. Defendant then forced C.M. to perform fellatio on him,
sodomized her, and vaginally penetrated her with his
penis. Throughout the extended encounter, the
sexual attack alternated between oral sex and vaginal/anal
penetration. C.M., who weighs less than 100 pounds,
repeatedly pleaded for defendant to stop as she tried to
squirm and dodge his advances. She testified that he held a
box cutter knife to her back, forcing her to comply out of
fear. At one point, defendant became irritated
because C.M. was bleeding on him, and he punched her in the
face a second time. He also directed Ortiz to join him in
sodomizing C.M. for about five minutes.
sexual abuse continued unabated until one of C.M.'s
friends walked by the abandoned house and saw the victim on
the porch engaged in sexual activity with defendant. C.M.
mouthed the words "help me" to her friend, who then
intervened, affording C.M. an opportunity to flee from the
porch. C.M. went to a nearby gas station where she called the
November 2014, a grand jury returned an indictment against
defendant concerning this incident. The indictment charged
defendant with first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(6) (count one); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three);
third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (count four); fourth-degree possession of
a weapon, N.J.S.A. 2C:39-5(d) (count five); first-degree
kidnapping, N.J.S.A. 2C:13-1(b)(1) and N.J.S.A. 2C:13-1(b)(2)
(count six); and first-degree robbery, N.J.S.A. 2C:15-1(a)(1)
and N.J.S.A. 2C:15-1(a)(2) (count seven).
was held in the summer of 2016, after which the jury
convicted defendant of first-degree kidnapping. He was
acquitted of first-degree aggravated sexual assault, but was
found guilty of the lesser-included offense of third-degree
aggravated criminal sexual contact. He also was acquitted of
second-degree aggravated assault, but was found guilty of the
lesser-included offense of third-degree aggravated assault.
The jury acquitted defendant of the first-degree robbery
charge, the aggravated assault charge in count three, and
both weapons offenses.
February 13, 2017, defendant appeared for sentencing before
the judge who presided over the trial. The court found
aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the nature
and circumstances of the offense and the actor's role
therein, including whether it was committed in an especially
heinous, cruel, or depraved manner); two, N.J.S.A.
2C:44-1(a)(2) (the gravity and seriousness of the harm
inflicted on the victim, including whether the defendant knew
or reasonably should have known that the victim was
particularly vulnerable or incapable of exercising normal
physical or mental power of resistance); three, N.J.S.A.
2C:44-1(a)(3) (the risk of committing another offense); six,
N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior
record); and nine, N.J.S.A. 2C:44-1(1)(9) (the need for
deterring the defendant and others). The court found no
mitigating factors. The trial judge sentenced defendant on
the kidnapping conviction to a twenty-three year prison term,
subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. The court imposed five-year "flat"
prison terms on both the aggravated criminal sexual contact
and aggravated assault convictions. All three prison terms
were ordered to be served concurrently. The court also
ordered defendant to a term of parole supervision for life,
and ordered defendant to register under Megan's Law as a
appeal, defendant now raises the following contentions:
POINT I: THE CRIME OF KIDNAPPING WAS NOT SUPPORTED
BY SUFFICIENT EVIDENCE BECAUSE THE CONFINEMENT WAS INCIDENTAL
TO THE OTHER CRIMES; THEREFORE, THE TRIAL COURT SHOULD HAVE
GRANTED THE MOTION FOR A ...