Opinion
DOCKET NO. A-0464-09T2
09-29-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EVERETT HOLLOWAY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William K. Meighan, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-12-2004.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William K. Meighan, Assistant Prosecutor, on the brief). PER CURIAM
Following a trial by jury, defendant Everett Holloway appeals from his conviction on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7) (count one); another count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count four); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count five). At the time of sentencing, the judge imposed extended-term sentences on both counts one and two, sentencing defendant to concurrent terms of life imprisonment on each count, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. Counts three, four and five were merged with count two.
On appeal, defendant raises the following claims:
I. THE ADMISSION OF HEARSAY STATEMENTS VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AT TRIAL.We reject the claims advanced in Points I through V, and affirm defendant's conviction. We defer consideration of Point VI to defendant's petition for post-conviction relief (PCR). As to Point VII, we conclude the judge erred by imposing two extended-term sentences, and remand for resentencing. In all other respects, we reject the sentencing arguments advanced in Point VII.
II. THE EXPERT TESTIMONY INTRODUCED BY THE STATE WAS IMPROPER AND, COMBINED WITH THE INSUFFICIENT JURY INSTRUCTIONS ON THE SUBJECT GIVEN BELOW, CAUSED AN UNFAIR TRIAL (plain error).
III. DEFENDANT'S MOTION FOR ACQUITTAL SHOULD HAVE BEEN GRANTED.
IV. THE PROSECUTOR EXCEEDED FAIR COMMENT AND DEPRIVED DEFENDANT OF A FAIR TRIAL (plain error).
V. DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY WAS VIOLATED.
VI. REMAND SHOULD BE ORDERED SO DEFENDANT CAN HAVE AN OPPORTUNITY TO PRESENT HIS CLAIM
OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL NOTED BELOW.
VII. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
I.
On October 3, 2007, E.H. moved into the Atlantic Motel in Seaside Heights, planning to remain there only until she could find a job and move to "a better location[.]" She immediately met defendant, who introduced himself as "Ed" and told her he lived in the adjacent room. Upon learning that E.H. would not be receiving food stamps for another two weeks, and that she had little money to buy food, defendant provided her with food and cigarettes. Because defendant was blind, E.H. agreed to open his mail and read it to him.
After a few days, E.H. decided to avoid defendant because of his tendency to turn the conversation toward sexual topics, which E.H. believed was "kind of weird[.]" Despite E.H.'s attempts to avoid him, defendant pursued her, often waiting for her when she returned from school and offering her cigarettes, even though she told him she would buy her own.
On the night of October 11, 2007, E.H. drove to the home of her best friend, Nancy Nunn, whom she had known since the two were five years old. E.H. testified that she went to visit Nunn that night because she was "upset" by defendant's conduct. E.H. told Nunn that "it is just very creepy. I was afraid of him."
The next morning, October 12, 2007, defendant knocked on E.H.'s door, stating he had brought a replacement part for her refrigerator, which was in need of repair. She accepted the part and asked defendant to leave, but before leaving, he asked her for a hug. E.H. complied, giving him "half a hug," believing it would "get him out of [her] place[.]"
With E.H. now in his grasp, defendant swung her around, and forced his arm around her neck, lifting her off the ground, all the while choking her. Unable to breathe, E.H. tried to kick defendant, and soon lost consciousness. She awoke, face down on the carpet, with defendant behind her performing vaginal intercourse. He ordered her to remove her clothes, and after she did so, he penetrated her again.
A little while later, even though defendant's leg was wrapped around hers, E.H. broke free and "ran out of th[e] room stark naked screaming from the top of [her] lungs." A neighbor, Susan Dougherty, was watching television when she heard E.H. screaming, "Dear God, please help me." Looking out her window, Dougherty was able to see E.H. running naked down the street while trying to cover herself. Dougherty also observed blood running down the front of E.H.'s leg. Dougherty immediately called the police, and ran outside, where she wrapped E.H. in a towel that she had grabbed as she rushed outside to assist E.H. As soon as Dougherty reached her, E.H. blurted out that she had been "raped" by "Ed[.]"
Dougherty described E.H.'s appearance and emotional reaction in the following terms:
I could really say that if fear or trauma were a verb, I was seeing it in action. I knew this woman was hurt or violated in some way. I knew that -- she was trembling to such a degree, I feared that her legs would not hold her up.While Dougherty was in the process of reassuring E.H. that no one was going to hurt her and that she, Dougherty, "knew who [E.H.] was talking about," a patrolman arrived.
The officer, Edward Pasieka, testified that he arrived at the intersection of Central Avenue and Hancock Street less than thirty seconds after he heard the dispatch. At the time he arrived, E.H. "was with another female." As soon as he approached E.H., she immediately blurted out that "[t]he blind guy had just raped her." When asked to describe E.H.'s demeanor, Pasieka testified:
When I came up to her, her hair was all messed up. I also noticed, besides her emotional state, which was frightened, she was gasping for air, she had shortness of breath. Hysterical. And I also noticed that she had red marks around her neck.
. . . .
[S]he was upset. She kept crying. It was hard to really get out what was going on with the whole situation. But when she did calm down a little, that's when she told me. But at the whole time [sic] she really couldn't catch her breath, like she was hyperventilating, like she was traumatized and in shock.
Pasieka arranged for E.H. to be transported to Community Medical Center in Toms River, where she was examined by Valerie Johnson-Green, a nurse trained in the procedures for collecting DNA and other specimens from sexual assault victims. Before Johnson-Green testified, the judge provided the following instruction to the jury:
Ladies and gentlemen of the jury, the Court is going to give you a limiting instruction regarding an expert witness.
An expert witness is a witness who has some special knowledge, skill, experience and training that is not possessed by the ordinary juror, and thus may be able to assist the jury in understanding the evidence presented and determining the facts in this case.
You are not bound by such expert's opinion, but you should consider each opinion and give it the weight to which . . . you deem it is entitled, whether it is great or slight or you may reject it. In examining each opinion you may consider the reasons given for it, if any, and you may also consider the qualifications and credibility of the expert.
Johnson-Green testified that E.H. had a "rug burn" under her chin, her tongue was swollen, she had petechiae (pinpoint broken blood vessels) around her left eye, a reddened area around her neck, a laceration on her left chin and a "dime-sized abrasion" on her left ankle. After Johnson-Green described E.H.'s injuries, the prosecutor asked Johnson-Green whether she had formed an opinion about whether E.H.'s injuries were "consistent with what [E.H.] reported to [her] on that date," to which Johnson-Green answered "[y]es." She responded that the petechiae around E.H.'s left eye, the reddened area around her neck, and her swollen tongue were all "indicative of being strangled and choked until unconsciousness"; the bump on her tongue and the burn under her chin would have been sustained "when [she] passed out and hit the floor;" and "the friction from the rug would cause the rug burn under her chin." Defendant interposed no objection to any of that testimony.
The State also presented the testimony of Rita O'Connor, who assisted Johnson-Green by taking photographs. The judge informed the jury that the limiting instruction he had given them concerning Johnson-Green's testimony also applied to O'Connor's. O'Connor described for the jury the petechiae that were depicted in the photographs of E.H.'s left eye. When asked why the petechiae were of significance, O'Connor responded that "[p]etechiae around the eyes and on the face are a sign of increased pressure in the veins in the head, and that's caused by asphyxia or the inability to breathe normally." O'Connor was asked on direct examination whether, based upon her expertise in forensic sexual assault nursing, she had an opinion as to whether or not the petechiae she observed "were consistent" with E.H.'s statement that defendant had choked her. She responded:
In my opinion, E.H.'s disclosure . . . of the events that took place corresponds with her presenting to the emergency room with petechiae present around her eyes. The petechiae . . . is a significant founding [sic] in a patient that reveals that they have been strangled or choked.
The State additionally presented the testimony of Nunn, who described her conversation with E.H. on the night of October 11, 2007. Nunn testified that E.H. "told [her] that she had a gentleman that lived next door to her that she was friends with, but she was beginning to feel uncomfortable with. And he was beginning to -- like, she felt creepy around him." At an earlier pretrial hearing, the judge had granted the State's motion to admit Nunn's hearsay testimony describing her conversation with E.H. the night before the events in question. Relying on N.J.R.E. 803(c)(3) and State v. Baldwin, 47 N.J. 379 (1996), the judge ruled that Nunn's hearsay testimony was admissible as a description of E.H.'s then-existing state of mind.
The State's final witness, Dolores Coniglio, a forensic scientist employed by the New Jersey State Police, testified that she had performed DNA testing on the semen collected from E.H. by Johnson-Green, and opined that the DNA was that of defendant.
After the State rested, defendant moved for a judgment of acquittal. The judge denied the motion, reasoning that the evidence produced by the State was sufficient to enable a reasonable jury to find guilt on all five counts of the indictment. The defense rested without calling any witnesses.
During her summation, the assistant prosecutor argued, without objection from defendant, that there was no evidence before the jury even remotely suggesting that E.H. had given her consent to sexual intercourse with defendant. The prosecutor stated:
Ladies and gentlemen, there is not even a scintilla, not even a tiny bit of a hint that she had given her freely, given permission to this act. Listen closely as
[the] [j]udge . . . reviews the law. Listen closely and he will tell you that the victim bears no burden to have said no, to have announced, Mr. Holloway, I hereby declare this is against my consent.
. . . .
Now, whoever should be the foreman or forelady, I implore you to turn to the women on the jury and say, ladies, what would it take, short of your house burning down while you're in the shower, to get you to run naked out in public? It's not going to happen.
II.
We turn to Point I, in which defendant argues that the admission of hearsay testimony from Dougherty, Nunn and Officer Pasieka violated his constitutional right to confront adverse witnesses, thereby denying him a fair trial. He maintains that the judge improperly permitted the testimony of all three witnesses pursuant to N.J.R.E. 803(c)(3), the exception to the hearsay rule for statements of then existing mental, physical or emotional condition of the declarant.
As a threshold matter, the State responds that the only witness whose testimony the judge expressly permitted pursuant to that Rule was Nunn, whose proposed testimony was evaluated during a pretrial hearing, whereas the testimony of Dougherty and Pasieka was never the subject of a Rule 104(a) hearing outside the presence of the jury. The State also observes that defendant interposed no objection to the testimony of either Dougherty or Pasieka at the time the testimony was given. Our careful review of the record supports the State's argument that the judge was never asked to rule upon the admissibility of the testimony of either Dougherty or Pasieka, and that defendant interposed no objection to their testimony. That being so, we evaluate defendant's claims on appeal under the plain error standard of review, and will not reverse on that ground unless any error was clearly capable of producing an unjust result. R. 2:10-2; State v. Burns, 192 N.J. 312, 341 (2007); State v. Macon, 57 N.J. 325, 336 (1971).
Moreover, when reviewing the evidentiary ruling of a trial judge, such as the ruling made here concerning Nunn's testimony, we are obliged to afford substantial deference to the decision made at trial. See State v. Carter, 91 N.J. 86, 106 (1982). Unless it can be shown the judge's decision "was so wide of the mark that a manifest denial of justice resulted," the ruling of the trial judge must stand. Ibid. (citations omitted).
In relevant part, N.J.R.E. 803(c)(3) establishes a hearsay exception for a "statement made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health)[.]" Here, although defendant broadly argues that his "rights were violated" when the State introduced Nunn's hearsay statements, he does not explain how Nunn's statements exceeded the limits of N.J.R.E. 803(c)(3). For the following reasons, we reject his challenge to the trial judge's ruling that Nunn's testimony was admissible. Nunn's testimony describing E.H.'s fear of defendant reflected E.H.'s then-current state of mind and her feelings toward defendant only one night before the alleged sexual assault. Because E.H. was speaking to a life-long friend, there is every indication that the statement was made in good faith. Furthermore, as the trial judge explained, because defendant maintained that E.H. consented to sexual intercourse, her statements to Nunn that defendant made her uncomfortable, and that she "felt creepy around him," are relevant and highly probative.
Nunn's testimony that E.H. called her the next day and told her that defendant "raped" her also falls within N.J.R.E. 803(c)(3), because it was made in "good faith and within a reasonable time after the crime." See State v. Scherzer, 301 N.J. Super. 363, 422-23 (App. Div.) (upholding the admissibility of hearsay testimony regarding the victim's mental state three days after the crime), certif. denied, 151 N.J. 466 (1997). The judge did not abuse his discretion in admitting Nunn's testimony.
As for the testimony of Dougherty and Officer Pasieka, which is reviewed under the plain error standard due to defendant's lack of objection, R. 2:10-2, we conclude that each was admissible under the excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2). N.J.R.E. 803(c)(2) creates a hearsay exception for a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." Although the "circumstances of the incident" and the "nature of the utterance" are important factors to consider, "the crucial element is the presence of the continuing state of excitement that contraindicates fabrication and provides trustworthiness." State v. Buda, 195 N.J. 278, 293 (2008) (citation omitted).
Here, E.H.'s statements to both Dougherty and Pasieka were made within minutes after she ran from the motel naked, crying for help, with blood dripping from her leg. The event she was describing was, by its very nature, something from which a victim does not easily recover, and consequently we deem it highly unlikely that in the short period of time that it took for E.H. to run out of the motel she could have contrived a false account. Moreover, her physical and emotional condition, described by Dougherty as "trembling to such a degree, I feared that her legs would not hold her up[,]" and her emotional state described by Pasieka as "[h]ysterical," unquestionably demonstrates that E.H. was under such a continuing "state of excitement," ibid., as to have no opportunity to fabricate. We conclude that the testimony of both Dougherty and Pasieka was admissible under the excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2). Therefore, the judge did not abuse his discretion in admitting such evidence, and did not err by failing to sua sponte strike it. There was no error, much less plain error. We thus reject the claim defendant advances in Point I.
III.
In Point II, defendant maintains that the expert testimony offered by both Johnson-Green and O'Connor "exceeded the limit of allowable expert testimony by encroaching upon the jury's duty to determine the credibility" of E.H., and evaluate "whether the State had proven beyond a reasonable doubt the elements of the crime charged." As defendant raised no objection at trial to the admission of this expert testimony, we evaluate defendant's claims under the plain error standard. Burns, supra, 192 N.J. at 341. As we have already noted, Johnson-Green testified that the injuries she observed on E.H. were "consistent with [E.H.'s] report of the incident." She observed that the petechiae around the left eye, the reddened area around E.H.'s neck and her swollen tongue were "all indicative of being strangled and choked until unconsciousness." She opined that the "bump" on E.H.'s tongue and the "rug burn under her chin" indicated that "[E.H.] passed out and hit the floor[.]" Finally, she opined that the abrasion on E.H.'s left knee and foot were caused by "being dragged and pulled as she was trying to crawl out of the hotel room[.]"
O'Connor testified, as we have noted, that the petechiae such as she observed on E.H. were "significant" because such a finding demonstrates that a patient "ha[s] been strangled or choked." She opined that the "pinpoint hemorrhaging" that she had observed "corresponds with" E.H.'s "disclosure of the events that took place."
Well-understood and well-accepted principles guide our review. Although an expert is permitted to offer an opinion on the ultimate issue to be decided by the jury, N.J.R.E. 704, such testimony is improper if the expert expresses a direct opinion that the defendant is guilty of the crime charged. State v. McLean, 205 N.J. 438, 453 (2011); see also State v. Papasavvas, 163 N.J. 565, 613 (2000) (holding that the permissible bounds of expert testimony were exceeded when a psychiatrist commented that when the defendant realized the victim would call the police, "he killed her and sexually assaulted her"); State v. Jamerson, 153 N.J. 318, 340 (1998) (holding that medical expert's opinion that auto accident deaths were the result of reckless driving, and were therefore homicides, improperly invaded the province of the jury); State v. Baskerville, 324 N.J. Super. 245, 255-57 (App. Div. 1999) (concluding that narcotics expert was improperly permitted to testify that the defendant "was selling narcotics").
Here, in contrast, the testimony of Johnson-Green and O'Connor suffered from none of the infirmities we and the Supreme Court identified in McLean, Papasavvas, Jamerson and Baskerville. Neither expert offered an opinion that defendant was guilty of sexually assaulting E.H., or that he had engaged in vaginal intercourse with her without her consent. Instead, each one merely commented that E.H.'s injuries were consistent with the type of incident she had described, which had included falling to the floor and sustaining a "rug burn" under her chin, and being choked, thereby sustaining petechiae around her eye. Describing the injuries as "consistent with" E.H.'s account told the jury nothing more than E.H.'s injuries could be explained by being choked to unconsciousness. So viewed, nothing in the testimony of either expert invaded the province of the jury, but instead assisted the jurors by providing them with "specialized knowledge" to "assist" them in "understand[ing] the evidence or . . . determin[ing] a fact in issue." N.J.R.E. 702. We therefore reject defendant's contention that the testimony of Johnson-Green and O'Connor exceeded the permissible bounds of expert testimony.
Moreover, defendant's reliance on State v. Michaels, 136 N.J. 299 (1994), State v. W.L., 278 N.J. Super. 295 (App. Div. 1995) , and State v. W.L., Sr., 292 N.J. Super. 100 (App. Div. 1996) , is misplaced. In these cases, two of the three reversals were the result of faulty scientific technique, a claim not advanced by defendant here, and the third resulted from the expert directly stating, in a child sexual abuse prosecution, that the child had been sexually abused.
In particular, in Michaels, supra, 136 N.J. at 315-16, the Supreme Court reversed the defendant's conviction and remanded for a hearing to determine whether the "clearly improper interrogations" of the children "so infected the ability of the children to recall the alleged abusive events" as to render the children's accounts unreliable. Thus, the evidence in question was unreliable; it did not, as defendant claims here, invade the jury's function.
Similarly, in W.L., supra, 278 N.J. Super. at 304, we reversed the defendant's conviction because the expert's reliance on the "Child Abuse Potential Inventory" was not supported by the required evidentiary foundation that would describe the content of the test or demonstrate its acceptance in the scientific community. This is not at issue in this case.
Finally, in W.L., Sr., supra, 292 N.J. Super. at 115, we deemed improper, and prejudicial, a psychiatrist's opinion describing the "[e]ffect of sexual abuse" on the child in question. Thus, in W.L., Sr., the State improperly used the psychiatrist's opinion testimony as "substantive evidence that the defendant had sexually abused" the victim. Ibid. Here, in contrast to W.L., Sr., the testimony of the State's two witnesses did nothing more than "characterize [the injury] . . . in light of [the witnesses'] specialized knowledge," a function the Court expressly approved in State v. J.Q., 130 N.J. 554, 573 (1993).
Moreover, we note that the judge here provided the jurors with a proper instruction that they were not bound by the experts' opinions and were to determine how much weight, if any, to give the expert testimony. We reject the claim defendant advances in Point II.
IV.
We next address Point III, in which defendant argues that the judge committed reversible error when he denied defendant's motion for acquittal. Viewing the evidence in its entirety, and giving the State the benefit of its favorable testimony as well as all favorable inferences a reasonable jury could draw, we are satisfied, as was the trial judge, that a jury could find defendant guilty on each of the charges beyond a reasonable doubt. See R. 3:18-1. In particular, defendant acknowledged that sexual intercourse occurred, but argued it was consensual. The uncontradicted evidence that E.H. ran naked into the street from the motel, and was found to have blood on her leg, choke marks on her neck, and petechiae around her eye, were more than sufficient to justify the denial of defendant's motion for acquittal as such evidence could reasonably have been construed by the jury as proving lack of consent. We reject the claim defendant advances in Point III.
V.
In Point IV, defendant argues that the prosecutor's arguments in her opening and in her summation constituted prosecutorial misconduct that denied him a fair trial. As no objection was interposed at trial, we apply the plain error standard of review. R. 2:10-2. In assessing whether a prosecutor's remarks in summation require reversal, we must determine whether "the conduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making that determination, we consider the following factors: whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard them. State v. Ramseur, 106 N.J. 123, 322-23 (1987). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Frost, supra, 158 N.J. at 83 (citing Ramseur, supra, 106 N.J. at 323). The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. Ibid. The failure to object also deprives the court of an opportunity to take curative action. Id. at 84 (citing State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997)).
We begin our analysis by addressing defendant's attack on the prosecutor's summation, in which she argued both that there was not "even a scintilla" of evidence that E.H. had freely consented to sexual intercourse with defendant, and that no woman would "run naked out in public" unless her "house [was] burning down while [she was] in the shower[.]" Defendant attacks the first of these remarks "as a comment on [his] election not to testify," and the second as an unjustified aspersion on defendant and his counsel. We disagree. As the State correctly argues, to prove a defendant guilty of either aggravated sexual assault, or sexual assault, the State must prove beyond a reasonable doubt the absence of affirmative, freely-given permission by the alleged victim. State in the Interest of M.T.S., 129 N.J. 422, 448 (1992). The prosecutor's remarks here did nothing more than explain to the jurors why the State's proofs satisfied that burden.
As for the "running naked" argument, we fail to see how such a remark demeans defendant or his attorney. The remark was nothing other than a pointed, and likely universally-accepted observation, that a woman would not run naked into the street absent extreme circumstances, such as having been subjected to a sexual assault. We see nothing improper in such an argument by the prosecutor, and conclude that her remarks stayed well within the boundaries established in Frost, supra, 158 N.J. at 83.
As we have noted, defendant also objects to a portion of the prosecutor's opening in which she made the following statements:
I'm one of two assistant prosecutors currently assigned to the Special Victims Unit. In that unit we deal exclusively with cases alleging the physical abuse of children, the sexual abuse of children and the sexual assaults of adults. It is in that capacity that I have been entrusted toHere, the prosecutor was merely introducing herself. Contrary to defendant's arguments, she did not urge the jury to reach a guilty verdict to protect the community. Defendant relies on State v. Holmes, 255 N.J. Super. 248, 249, 251 (App. Div. 1992), in which we condemned the prosecutor's reference to the "war on drugs" and his comment that "police officers don't have to make up facts"; and State v. Hawk, 327 N.J. Super. 276, 280 (App. Div. 2000), in which we found improper a prosecutor's comment that the jury should hold "the defendant, accountable for his actions." Defendant's reliance on those two opinions is misplaced. The prosecutor's opening suffered from none of the dangers we discussed in either Holmes or Hawk. We find no error, much less plain error, and therefore reject the claim defendant advances in Point IV.
present to you the State of New Jersey versus Everett Holloway.
VI.
In Point V, defendant argues that his right to a fair trial was violated when the judge failed to excuse two jurors who had seen a newspaper headline in the Asbury Park Press. The record reflects that as a precautionary measure at the beginning of each day's proceedings, the judge inquired of the jurors whether any of them had inadvertently been exposed to any media coverage of the trial. In response to the judge's question, on March 25, 2009, juror number five told the judge that she had seen a headline that morning, but had not read the article. She commented that she had only seen the word "naked." Upon being asked, she assured the judge that seeing a portion of the headline would not impact her ability to be fair and impartial. When the judge asked defense counsel whether he was seeking the excusal of juror number five, defense counsel answered "no." The headline in question apparently read, "Woman Says She Ran From Rapist Yesterday." The record does not explain where the word "naked" was positioned in the headline.
Next, the judge interviewed juror number two, who had seen the same headline. As had juror number five, he told the judge that after seeing the headline, he "stopped," and read nothing else. He also told the judge that nothing about the article or the headline would interfere with his ability to be fair and impartial. Defense counsel did not ask that juror number two be excused.
As a precaution, the judge conducted a voir dire of each of the remaining jurors at sidebar, and although a few had overheard a passing remark in the jury room that there had been an article in the newspaper, none had seen the article and each assured the judge that he or she could be fair and impartial.
Having carefully considered defendant's arguments, we conclude they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, the judge scrupulously adhered to the procedures for the handling of mid-trial publicity that the Supreme Court developed in State v. Bey, 112 N.J. 45, 86 (1988). We see no basis for reversal, especially in light of the fact that defendant did not request the excusal of any of the jurors.
VII.
In Point VI, defendant argues that he received ineffective assistance of trial counsel and should consequently be afforded a new trial. Claims of ineffective assistance of counsel are best deferred for post-conviction review. State v. Preciose, 129 N.J. 451, 460 (1992). "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Ibid. (citations omitted). We have been presented with no meritorious basis for deviating from the salutary rule of Preciose. We decline to address the claims advanced in Point VI, and defer them until the PCR stage.
VIII.
Lastly, in Point VII, defendant raises a number of claims concerning his sentence. He maintains that: the imposition of an extended-term sentence was not warranted in light of his criminal history; counts one and two should have been merged for purposes of sentencing; and the judge's findings on the existence of three aggravating factors were insufficient, thereby resulting in an excessive sentence. These arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
We add only the following comments. Merger is not required where, as here, a defendant is convicted of two separate forms of aggravated sexual assault, namely, engaging in vaginal intercourse with E.H. when defendant knew, or should have known, that she was physically helpless or mentally incapacitated, N.J.S.A. 2C:14-2(a)(7), as set forth in count one; and committing an act of sexual penetration upon E.H. during the commission of an aggravated assault, N.J.S.A. 2C:14-2(a)(3), as set forth in count two. Offenses do not merge when each crime contains an element not present in the other, which was the case here. See State v. Dillihay, 127 N.J. 42, 50-51 (1992).
As for defendant's contention that no extended term sentence should have been imposed, we are satisfied, as was the judge, that defendant's extensive prior record, which includes convictions for numerous extremely serious crimes, meets the standard established by the Supreme Court in State v. Pierce, 188 N.J. 155, 168-70 (2006), for the imposition of an extended-term sentence.
Defendant's prior record includes, among others, convictions for: aggravated assault with a deadly weapon in 1982, aggravated assault in 1982, kidnapping and aggravated sexual assault in 1983 and armed robbery in 1983. On the 1983 armed robbery conviction, defendant was sentenced to a forty-year term of imprisonment and was not released from confinement until August 2007.
We note, however, as the State correctly points out, that the imposition of two extended-term sentences runs afoul of N.J.S.A. 2C:44-5(a)(2), which specifies that "[n]ot more than one sentence for an extended term shall be imposed." We remand for resentencing. On remand, the judge shall eliminate the extended-term sentence on either count one or count two. The remand proceedings shall, however, be limited to that single purpose.
We affirm defendant's conviction. As for the sentence, we remand for resentencing to eliminate one of the two extended-term sentences. In all other respects, the sentence is affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION