Opinion
DOCKET NO. A-3659-14T1
01-23-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ARSENIO AMELCO, a/k/a ALEXIS AMELCO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-12-1631. Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
At the conclusion of a six-day trial, a jury found defendant Arsenio Amelco guilty of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6); one count of third-degree aggravated assault causing significant bodily injury, N.J.S.A. 2C:12-1(b)(7); three counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); one count of third-degree criminal restraint, N.J.S.A. 2C:13-2; one count of third-degree terroristic threats, N.J.S.A. 2C:12-3(b); and one count of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2). The trial court sentenced defendant to an aggregate prison term of forty-six years, with a 32.9-year parole disqualifier.
Defendant now appeals from the Law Division judgment of conviction entered on February 24, 2015, arguing:
POINT I
THE CONVICTIONS FOR AGGRAVATED SEXUAL ASSAULT AND AGGRAVATED CRIMINAL SEXUAL CONTACT MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ESSENTIAL ELEMENT THAT THE COMPLAINANT INCURRED "SEVERE PERSONAL INJURY."
A. The State Utterly Failed To Prove Physical Injury Rising To The Level of Severe Personal Injury.
B. The State Presented No Evidence of Incapacitating Mental Anguish.
C. The Evidence Was Legally Insufficient, Requiring Reversal.
POINT II
THE TRIAL JUDGE FAILED TO PROVIDE THE JURY WITH ADEQUATE GUIDANCE ON THE ESSENTIAL ELEMENT OF "SEVERE PERSONAL INJURY," MANDATING REVERSAL OF THE AGGRAVATED SEXUAL ASSAULT AND AGGRAVATED CRIMINAL SEXUAL CONTACT CONVICTIONS. (Not Raised Below).
POINT III
REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR URGED THE JURY TO CONSIDER SUBSTANTIVELY PORTIONS OF THE DEFENDANT'S SUPPRESSED STATEMENT, FLOUTING THE JUDGE'S EXPRESS RULING TO THE CONTRARY; AND REPEATEDLY INFLAMED THE JURY BY COMPARING THE INCIDENT TO A GORY MASSACRE AND EMPHASIZED COMPLAINANT'S VIRGINITY AND TIMIDITY WHILE DISPARAGING THE DEFENDANT AS "SICK," "CREEPY," AND "OBSESSIVE." (Not Raised Below).
POINT IV
THE DEFENDANT'S STATEMENT WAS PROPERLY SUPPRESSED, BUT THE STATE USED IT NONETHELESS TO IMPEACH HIM ON CROSS-EXAMINATION BECAUSE THE COURT DEEMED IT VOLUNTARY. THE COURT'S RULING WAS INCORRECT AND DENIED THE DEFENDANT A FAIR TRIAL; ALTERNATIVELY, THE SUPREME COURT RECENTLY GRANTED CERTIFICATION ON THE ISSUE OF WHETHER A SUPPRESSED STATEMENT CAN EVER BE USED FOR IMPEACHMENT PURPOSES, AND A FAVORABLE DECISION WOULD DEMAND REVERSAL.
POINT V
THE JUDGE ERRED IN RUNNING FOUR SETS OF SENTENCES CONSECUTIVELY, RESULTING IN A MANIFESTLY EXCESSIVE 46-YEAR SENTENCE, WITH A NEARLY 33-YEAR PAROLE DISQUALIFIER.
We have reviewed each of these issues, in light of the record and the applicable law. We affirm defendant's convictions, but vacate his sentence. We remand for resentencing consistent with this opinion.
I.
The State presented its case in chief over three days. In addition to the alleged victim, Melissa, the State called detectives Brett Rothenburger and Jennifer Rueda. Other witnesses included forensic witnesses Christina Molnar and Kimberly Michalik, Dr. Adam Bogomol, and Nurse Vecchione. Defendant called two nurses, Sandra Palin and Erica Rodriguez, along with Edgewater Police Officer James Dalton, T-Mobile representative Susan Johnson, and private investigator Gerard Robbins. Further, defendant testified on his own behalf. Various documents and photographs were admitted into evidence, along with several pieces of clothing.
We refer to the victim using a pseudonym to protect her privacy.
A.
We first summarize the testimony and evidence presented by the State. Melissa testified she and defendant dated for a seven-month period, which ended one year before the events under review. She said she was approximately twenty-five years old when they dated, and defendant was then twenty-two years old.
On the morning of July 20, 2013, defendant invited Melissa to celebrate his birthday, and she accepted. Notably, although they had dated in the past, Melissa testified that when defendant was her boyfriend, "maybe I allow him to touch me, but he never penetrate me . . . because I never allowed him to do that." At around 8:40 p.m., defendant arrived in a private taxi. Melissa became upset when she realized defendant was wearing a shirt and jeans, rather than the suit he wore in a picture he had sent her earlier. The taxi took them to Pier 115 Bar & Grill, a restaurant in Edgewater they had visited a week earlier. Melissa said they continued to argue on the outside boardwalk for approximately two hours, with defendant, at one point, picking her up and dangling her over the water.
Defendant's actual birthday was the previous day, Friday, July 19.
Eventually, they decided to go into the bar area, but defendant was turned away because he did not have his I.D. Melissa contacted her cousin — who owned a taxi — to drive them to defendant's home, so he could obtain his I.D. The two arrived back at the bar at approximately 11 p.m. They each drank two glasses of wine and a shot of tequila. Melissa then went to the bathroom, and defendant followed her. Melissa told him to leave, but he refused.
They subsequently exited the bar to wait in an enclosure outside near the parking lot. Melissa testified defendant grabbed her hand and walked her to the area to "tell [her] something." Instead, he pulled her into a dark part of the enclosure and took her cell phone. He then took his belt off and asked her why she never trusted him or gave him a second chance. Melissa feared defendant would choke her with his belt. He started calling her an idiot and demanded she undress. He started undressing, but she refused. When she continued to refuse, he started undressing her himself. After he took her dress off, he pushed her to the ground and started trying to remove her underwear.
Melissa heard a car, so she screamed. Defendant then choked her with both hands until she stopped screaming. When she screamed again, he resumed choking her. She stopped screaming because she thought he would kill her if she continued. Defendant then grabbed and tossed Melissa's cell phone. They were both naked at this point. Defendant began kissing Melissa's mouth, neck, and breasts. When defendant started performing cunnilingus, she said "no, please;" he then threatened to kill her three times. Eventually, he laid back with his eyes closed and arms open, and said, "Devil, show me . . . how to work with you. Show me what to do now." Melissa thought he was going to strangle her. She looked for her phone but could not find it. In order to calm him down, she asked him whether they were going to get married. He said yes, and "we're going to have kids."
Defendant climbed back on top of Melissa, held her down with his arm, kissed her everywhere, and started trying to penetrate her with his penis. She felt painful pressure in her vagina. She tried to push defendant back and put her hand in front of her vagina, but defendant persisted. She reiterated they were going to get married and tried to explain it was not the right moment, but defendant said, "[T]he only way that you will get out of my hands right now [is] if you allow me to penetrate you."
Melissa still refused to let defendant penetrate her. He reiterated his ultimatum, so she pushed him with her feet. When he noticed she was looking for her phone, he asked her whether she thought he was stupid enough to let her get it. She asked him to let her go because her mom was worrying about her. He said, "I don't care. I'm going to kill you 'cause you never give me a second chance." Melissa started to look around for help, and defendant told her not to bother because no one ever came near this area.
By this point, the sun began to rise. Melissa repeated her request for defendant to let her go, so she could call her mom. He said, "[N]o. I'm going to kill you and your Mom is going to feel the pain." She asked to get dressed, and he again refused. When she screamed, he jumped onto her and choked her with both hands. She kicked him and tried to take his hands off her neck without success. She stopped screaming, so he stopped choking her.
Eventually, they both got dressed. At this point, Melissa pleaded with defendant,
please, let me call my [M]om because she's worried. He said no.
Then he says yes. He grabs his cell phone and he calls my Mom[,] and before calling her[,] he told me you're going to tell her that we got drunk, that we went to a friend's house. Then we had some beers, that we drink too much. And I say, okay. Just let me talk to her.
After allowing Melissa to call her mother, defendant told her, "[Y]ou're not going to go anywhere. You're going to die. And maybe I'm gonna kill myself." Defendant next forced Melissa to bend her knees. Melissa tried to use her cellphone and defendant started choking her. Then he punched her in the face with his right fist, giving her a bloody nose. When Melissa saw defendant pick up a piece of wood from the ground, she pleaded with him to give her his hand. She thought he would refrain from hitting her if they were holding hands.
At around 5:30 a.m., defendant called a friend to come get them. Defendant told his friend, "I almost killed [Melissa]. Can you come and pick us up?" The friend only agreed after Melissa begged him: "[P]lease, please, come and pick me up. If not, he's going to kill me." When the friend arrived, Melissa said her "dress [was] full of blood, my knees were bleeding, my arms, my elbows." After seeing Melissa, the friend told defendant, "[W]hat did you do? She has to go to the hospital. You're going to have big trouble." The friend then drove Melissa home.
After arriving home, Melissa told her family what happened, and they accompanied her to the West New York Police station. A police officer drove her to the Edgewater Police Department to report the crime. The Edgewater police took her to Englewood Hospital and contacted the Special Victims' Unit (SVU) of the Bergen County Prosecutor's Office. When given the options available to her — a police investigation, an examination for biological evidence, and counseling — Melissa requested all three. The police then took Melissa to Hackensack University Medical Center (HUMC) for further evaluation, where Nurse Vecchione, a sexual assault nurse examiner (SANE) and rape crisis advocate, examined her.
After taking a history from Melissa, Nurse Vecchione completed an external assessment, which revealed a swollen and bruised eye, an abrasion to the right side of the forehead, a bruise to the forehead, abrasions to the nose and above the upper lip, an abrasion under the eye and chin, bruising under the chin, multiple abrasions to the back, scattered abrasions to both knees, a large scratch to the right arm, abrasions near the feet, and dried blood on the feet. Nurse Vecchione's gynecological examination revealed "frank" red blood, indicating active bleeding. After further investigation, she discovered one-centimeter abrasions at the "three," "six," and "nine" positions. The area under the "six" position was swollen and bruised. She applied silver nitrate to the injured areas.
SVU Detective Rueda and her partner initially had difficulty locating defendant. On July 22, 2013, after analyzing telephone records, they were eventually led to a home in West New York. A woman answered the door and invited them into her home, where they saw defendant on a roof in the back of the building. Detective Rueda drew her weapon and told defendant to surrender himself. Defendant did not immediately comply, although he eventually did. In the bedroom of the home, the police found defendant's laundry and travel bags, which contained a pair of bloody jeans and a bloody shirt. Defendant was charged with the crimes against Melissa as well as resisting arrest.
The following day, defendant was brought to the Edgewater Police Department for Sergeant Cecilia Love and Detective Rueda to interview. During the initial stages of the interview, defendant requested an attorney several times and then changed his mind and decided he wanted to speak to the officers. The detectives terminated the interview when defendant changed his mind again and decided he wanted an attorney. The police were going to transfer defendant to the Bergen County Jail, when he stated he wanted to speak to the detectives but also wanted an attorney. Defendant reiterated he wanted to speak, but the police told him if he mentioned counsel again, the interview would stop.
The trial court ultimately suppressed Defendant's subsequent statement. After reviewing the videotaped interview in camera, the judge concluded:
Now, there's 100 pages after that and this Court finds clearly based upon that statement, "I want to speak with an attorney" whatever happens after that for purposes of [Miranda] is irrelevant. That this statement is not admissible; that the defendant did not waive his rights to remain silent under [Miranda], and, therefore, the statement may not be used in the case — in the State's case in chief.
At Englewood Hospital, Melissa told a nurse that defendant had not penetrated her. In her trial testimony, Melissa explained that at the time she said this to the nurse, she had believed "penetrating means when you allow the men's penis to go all the way into your vagina."
At the conclusion of direct examination, the prosecutor asked Melissa, "How has . . . [w]hat occurred to you . . . impacted you physically?" Over objection, Melissa replied,
I feel amputee, because when I look at my vagina and my body and those scars that I still have it hurts, everything. The way I was before and the way I am now. I am a completely different person. It hurt[s], because I didn't — I didn't have to go through that — through that pain. I didn't.The State also introduced photos of Melissa and her clothes from shortly after the attack.
Dr. Bogomol, a board-certified radiologist, testified regarding his review of Melissa's facial x-rays and his conclusion she had suffered a broken nose, consistent with a punch to the face.
B.
The defense presented a far different account. Defendant testified he and Melissa exchanged "more than a hundred" text messages on a daily basis, describing them as "always romantic." He also testified he was eighteen years old when they first dated, instead of twenty-two years old, as Melissa claimed in her testimony. He produced and identified his Mexican birth certificate to corroborate his testimony on this point.
Defendant also disputed Melissa's claim that he picked her up against her will and dangled her over the water; instead, defendant testified he lifted her up at her request, so they could kiss over the water.
Defendant agreed that after they left the bar, they went to an enclosure outside near the parking lot. According to defendant, the two had consensual sex at this enclosure six days earlier, and Melissa suggested they return there. Defendant testified they laid down and removed their clothes, as they kissed and Melissa caressed his genitals. Defendant kissed Melissa's legs and vagina at her request. She asked defendant if he wanted to put his penis in her a little bit, but he declined because he did not have a condom and was not very erect, so she asked him to put his finger inside her. Afterwards, they lay kissing for a while and discussed their desire to marry and have children. At around 5:00 a.m., they dressed and defendant called Melissa's mother. Melissa got angry at this, so they began to argue. After Melissa smacked him three times across the face, defendant punched her twice. Defendant then called his friend, who picked them up.
After defendant's direct testimony, the prosecutor cross-examined defendant and confronted him with several instances when his trial testimony differed from the statement he gave to police following his arrest. The prior inconsistent statements included his date of birth, whether his penis was erect, whether he was a virgin, and whether the victim hit him first. At this point, the judge provided the jury with the following instruction:
This statement has been introduced by the prosecution not as evidence of defendant's guilt on the crime charged, but to [a]ffect his credibility on condition that the jury obviously determine[s] that the statement was made.The judge explained defendant gave the statement while in custody following his arrest.
So, if he made the statement, you may consider it solely to determine defendant's credibility if you believe it does, in fact, affect such credibility, but you cannot consider it as evidence of his guilt.
In this regard, in all fairness, you'll want to consider the circumstances under which the statement or the prior statement occurred, the extent and importance or lack of importance of the . . . inconsistency on the overall testimony, including such factors as where and when that prior statement occurred, and the reasons, if any, therefore.
After deliberating, the jury convicted defendant of fourth-degree resisting arrest and all other charges. At defendant's sentencing hearing, the judge found aggravating factors one (nature of offense), N.J.S.A. 2C:44-1(a)(1); three (recidivism), N.J.S.A. 2C:44-1(a)(3); and nine (deterrence), N.J.S.A. 2C:44-1(a)(9). The judge found mitigating factor seven (no criminal record), N.J.S.A. 2C:44-1(b)(7). The judge then sentenced defendant to consecutive seventeen-year terms on counts one and two (aggravated sexual assault), and consecutive four-year terms on counts three (third-degree aggravated assault), seven (third-degree criminal restraint), and nine (fourth-degree resisting arrest), for an aggregate sentence of forty-six years. The State concedes the sentence on count nine (resisting arrest) cannot exceed eighteen months and requests a remand to amend the judgment of conviction. On the aggravated criminal sexual contact counts (four, five, and six) and the terroristic threat count (eight), the judge sentenced defendant to concurrent four-year terms, concurrent to all other sentences. The judge further ordered defendant to serve eighty-five percent of his sentence without parole, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the judge ordered defendant to pay miscellaneous fines and sentenced him to Megan's Law and parole supervision for life.
The indictment charged defendant with third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(b), but the jury found him guilty of the lesser-included offense of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2). --------
II.
On appeal, defendant challenges (A) the State's proof of "severe personal injury," (B) the judge's jury instructions on "severe personal injury," (C) the State's summation, (D) the judge's admission of defendant's statement for impeachment, and (E) the judge's sentence. We consider each argument in turn.
A. Proof of Severe Personal Injury
A person "is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person . . . [using] physical force or coercion and severe personal injury is sustained by the victim." N.J.S.A. 2C:14-2(a)(6). "'Severe personal injury' means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain." N.J.S.A. 2C:14-1(f). The Legislature's term differs from and is broader than serious bodily injury. See State v. Mosley, 335 N.J. Super. 144, 153 (App. Div. 2000) (recognizing the legislation defined "severe personal injury" more broadly than "serious bodily injury"), certif. denied, 167 N.J. 633 (2001).
In State v. Walker, 216 N.J. Super. 39, 44 (App. Div.), certif. denied, 108 N.J. 179 (1987), we defined incapacitating mental anguish as
severe emotional distress or suffering which results in a temporary or permanent inability of the victim to function in some significant aspect of her life, such as in her employment, her ability to care for herself or in her capacity as spouse, homemaker or mother. In this context, temporary incapacity means more than a mere fleeting, short-lived or brief incapacity.We recognized "most rapes cause the victim to suffer emotional distress[,]" so the victim's incapacitation corroborates "the victim's distress is severe, and it justifies greater punishment." Ibid.
[Ibid.]
In this case, defense counsel objected to Melissa testifying about her injuries. The judge correctly overruled the objection. Melissa described herself as "a completely different person," as a result of defendant's assaults, now feeling like an "amputee." When she looks at her body and the scars she still has, "it hurts." Such emotional distress is "within the common experience and knowledge of the average juror" and need not be the subject of expert testimony. Id. at 45. We find the Melissa's testimony and the testimony of the SANE nurse sufficient to support the jury's determination that Melissa sustained severe personal injury as the result of defendant's aggravated sexual assaults.
B. Jury Instructions on "Severe Personal Injury"
As noted, "severe personal injury" is defined as "severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain." N.J.S.A. 2C:14-1(f). However, the Model Jury Charge does not clarify the definition of "severe personal injury" any further because "[n]o reported cases have yet construed it." Cannel, New Jersey Criminal Code Annotated, comment 6 on N.J.S.A. 2C:14-1 (2016). "In the absence of statutory definition, words are to be given their ordinary and well understood meaning." Walker, supra, 216 N.J. Super. at 42.
The term "severe" is not particularly esoteric. It has been commonly defined with respect to a wound or injury as "grievous" and "inflicting pain or distress." Webster's New Collegiate Dictionary 1054 (1981). Given the nature and extent of Melissa's injuries, the court did not need to give the jury a more specific explanation to assess the meaning of "severe personal injury."
C. The State's Summation
When a defendant raises an issue for the first time on appeal, this court reviews the issue for plain error, which "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. The error must have been "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div.) (alteration in original) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011). Additionally, "[t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action." State v. Frost, 158 N.J. 76, 84 (1999).
Defendant points to multiple portions of the assistant prosecutor's summation where she acted inappropriately. Examples outlined in defendant's brief include emphasizing Melissa's virginity:
The defense would have you believe that this was the area that [Melissa] chose to have her first sexual intercourse. This remote, desolate, dark construction area, under a truck where you can't even stand, with a construction ground of gravel, dirt, darkness. This is where the defense would have you believe that [Melissa's] first sexual intercourse encounter — that she chose to have it here.Also, analogizing these events to an episode of Game of Thrones:
Well, much like in Game of Thrones, there's a particular scene that is somewhat analogous, somewhat applicable, with regards to the events of July 20th to July 21st, 2013. This is the red wedding, ladies and gentlemen. Much like in Game of Thrones, when the character, Rob Stark, thought that he was
amongst friends that night, and we all know how that turned into a bloody brutal massacre.In addition, defendant contends the prosecutor improperly emphasized certain traits of Melissa, which were indicative of her truthfulness:
[Melissa] thought she was amongst a friend that night. Her ex-boyfriend, someone who she cared enough to remain friends with. She thought she was amongst a friend and we all know how that turned out. A brutal, bloody sexual assault and beating on her.
[Melissa], who was so soft spoken on the stand, so quiet, telling you about a little bit of discussion or an argument that she and defendant had at the restaurant . . . .
. . . .
And you heard [Melissa], who testified to you that she hid her tears in the restaurant, is now laying on an exam table with her hands folded, nervous and crying, undergoing a genital inspection with a speculum, with instruments, without any lubrication. You think she wanted to have that done?
But defense would have you believe that this was consensual sex and, I guess, apparently all of this was made up. You think she would want to voluntarily lay on that table and have that exam performed on her? I submit to you all of the evidence shows and corroborates how credible the victim is.
Finally, defendant asserts the assistant prosecutor made additional statements describing defendant as "strange," "sick," and "creepy" as well as urging the jury to misuse defendant's statement for substantive, rather than impeachment, purposes.
Ultimately, we see no plain error. Defendant's theory of the case was two persons engaged in consensual sex, whereas the State's theory was a frustrated former boyfriend sexually assaulted a former girlfriend. The prosecutor posed the obvious question: Why would Melissa go through the trauma of a police investigation and hospital examination after consensual sex? While the analogy to Game of Thrones may have been objectionable, the prosecutor qualified her remarks by noting many of the jurors indicated during jury selection they watched Game of Thrones. See State v. Wakefield, 190 N.J. 397, 467 (2007) (noting the prosecution's "single metaphor . . . simply does not rise to the level where defendant's right to a fair trial is implicated"), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). It is ordinarily "fair to infer from the failure to object" that "in the context of the trial the error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (citations omitted).
Nor does the record show the prosecutor misused defendant's suppressed statement; she only contrasted defendant's testimony with his previous statement for impeachment purposes. We further see no error in the prosecutor commenting about defendant's demeanor during trial. See Frost, supra, 158 N.J. at 83 (holding generally, "remarks will not be deemed prejudicial" if no objection was made at trial).
D. Admission of Defendant's Statement for Impeachment
We summarily reject defendant's fourth argument that the trial court should not have admitted his prior statement to impeach his testimony. R. 2:11-3(e)(2). Our Supreme Court long ago held statements suppressed under Miranda are nevertheless admissible to impeach a defendant's credibility. State v. Burris, 145 N.J. 509, 524 (1996).
E. Defendant's sentence
Regarding the two counts of aggravated sexual assault, the court concluded the acts of cunnilingus and vaginal penetration were for different purposes and resulted in different physical injuries. As the judge noted:
While one could reasonably consider this a [] single act of sexual violence, this Court finds that there are two separate purposes. That the act of cunnilingus, the act of oral sexual assault is different and is markedly different from penile/vaginal penetration, both in its physical attack and in the consequences. Physically, obviously, in this case, we had a [] physical injury, a tear, and also emotionally, psychologically and the consequences that could occur from the act of coitus.The judge further concluded the aggravated assault (count three) constituted a separate incident apart from the aggravated sexual assaults and occurred after defendant telephoned Melissa's mother, warranting a consecutive sentence. The judge reasoned,
[O]ne could reasonably say that this was part of [] a violent sexual assault. But in this regard, I look to defendant's statements, his testimony at trial, as well as [] his statement to Avenel where he clearly acknowledged that he punched the victim, broke her nose, because he was angry with her.The judge next determined defendant's criminal restraint conviction should run consecutive because "he took her cell phone from her, prevented her from contacting anybody." Finally, the judge determined the resisting arrest conviction was a completely separate incident, with a separate victim, and occurring two days later, and thus should run consecutively.
Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). Our review focuses on (1) whether the trial court followed the sentencing guidelines, (2) whether the trial court's aggravating and mitigating factors are based upon competent, credible evidence in the record, and (3) whether even though the court sentenced in accordance with applicable sentencing guidelines, the trial court's application of the guidelines to the facts of the case is so clearly unreasonable as to "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
N.J.S.A. 2C:44-5(a) states, "[M]ultiple sentences shall run concurrently or consecutively as the court determines at the time of sentence . . . ." To provide trial courts with guidance in determining whether to impose consecutive or concurrent sentences, our Supreme Court has articulated the following criteria:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
[State v. Yarbough, 100 N.J. 627, 643-44 (1985) (footnotes omitted), certif. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).]
In State v. Rogers, 124 N.J. 113, 119 (1991), our Supreme Court emphasized, "[W]e did not intend nor did the Legislature require that under the Code every additional crime in a series carry its own increment of punishment (else there would have been no provision made in the Code for concurrent sentencing in the first place)." Rather, "the focus of the court should be on the fairness of the overall sentence." State v. Sutton, 132 N.J. 471, 485 (1993).
We do not find the judge's explanation for imposing consecutive sentences for the first-degree aggravated assault convictions persuasive. Our review of the record and the Yarbough factors convinces us that for sentencing purposes, the court should have treated defendant's course of conduct as a single act of sexual violence. We conclude the trial judge mistakenly exercised his discretion when imposing consecutive sentences for his convictions for first-degree aggravated sexual assault. The sexual assaults were committed so closely in time and place as to be a single period of aberrant behavior. Perhaps the judge's emphasis upon "no free crimes" led to the mistaken imposition of what we find is an excessive sentence. The forty-six-year term imposed shocks our judicial conscience and must be vacated, noting the term even exceeds the minimum sentence for first-degree murder, which is thirty years. See N.J.S.A. 2C:11-3(b)(1). We also agree the sentence of four years for resisting arrest was erroneous as it exceeds the statutory maximum of eighteen months. See N.J.S.A. 2C:29-2(a)(2), :43-6(a)(4).
Affirmed as to defendant's convictions, but remanded for resentencing consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Despite the statement violating Miranda, the court ruled it was voluntary and thus available for impeachment purposes:
I find, on balance, on the totality of the evidence, listening to, viewing the tape, the demeanor of the witness, the demeanor of Detective Rueda. . . I don't find that there was any overbearing and unbalance. I find that the statement is voluntary, the statement is trustworthy, and it was . . . the product of a rational intellect of a young adult and his free will.The judge also found the prejudicial impact did not outweigh the probative value of the statement for the limited purpose of impeachment.