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State v. Cruz-Pena

Superior Court of New Jersey, Appellate Division

June 21, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JUAN E. CRUZ-PENA, Defendant-Appellant.

          Argued May 6, 2019

          On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 14-11-0932.

          Tamar 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 brief).

          Before Judges Haas, Sumners and Susswein.

          OPINION

          SUSSWEIN, J.S.C.

         This 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.

         The 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.

         I.

         We derive the following facts from the evidence presented by the State at trial. In the early morning hours of May 22, 2014, C.M.[1] 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.[2] 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.

         When 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[3] her with his penis.[4] 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.[5] 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.

         The 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 police.

         In 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).

         A trial 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.

         On 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 sex offender.

         On 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 ...

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