STATE OF NEW JERSEY v. JOSE QUINTANA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1024-03T41024-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE QUINTANA,

Defendant-Appellant.

____________________________

 

Argued March 14, 2006 - Decided July 28, 2006

Before Judges Coburn, Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, 98-10-4025-I.

Lon Taylor, Assistant Deputy Public Defender,

argued the cause for appellant (Yvonne Smith

Segars, Public Defender, attorney; Mr. Taylor,

of counsel and on the brief).

Sara A. Friedman, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County

Prosecutor, attorney; Ms. Friedman, of counsel

and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried to a jury, defendant Jose Quintana was found guilty of the following offenses: first-degree aggravated sexual assault upon a fifteen-year-old victim by vaginal penetration while armed with a weapon, contrary to N.J.S.A. 2C:14-2(a)(4) (count one); first-degree aggravated sexual assault upon a fifteen-year-old victim by fellatio while armed with a weapon, contrary to N.J.S.A. 2C:14-2(a)(4) (count two); first-degree aggravated sexual assault upon a fifteen-year-old victim by vaginal penetration during a kidnapping, contrary to N.J.S.A. 2C:14-2(a)(3) (count three); first-degree aggravated sexual assault upon a fifteen-year-old victim by fellatio during a kidnapping, contrary to N.J.S.A. 2C:14-2(a)(3) (count four); first-degree kidnapping to facilitate commission of a crime of aggravated sexual assault and without releasing the victim unharmed, contrary to N.J.S.A. 2C:13-1(b)(1) (count five); third-degree endangering the welfare of child under the age of sixteen, contrary to N.J.S.A. 2C:24-4(a) (count six); fourth-degree unlawful possession of a knife, contrary to N.J.S.A. 2C:39-5(d) (count seven); third-degree possession of a knife with intent to use against a person, contrary to N.J.S.A. 2C:39-4(d) (count eight); second-degree aggravated assault by causing or attempting to cause serious bodily injury, contrary to N.J.S.A. 2C:12-1(b)(1) (count nine); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2) (count ten); and third-degree offense of making a terroristic threat, contrary to N.J.S.A. 2C:12-3(a) (count eleven). The jury also made specific findings that defendant had committed "crimes of violence" of aggravated sexual assault, kidnapping, aggravated assault, and that the victim was younger than sixteen.

On October 25, 2002, Judge Nelson merged the first four counts with the fifth, which charged first-degree kidnapping to facilitate aggravated sexual assault and not releasing the victim unharmed. He sentenced defendant to a life term of imprisonment with twenty-five years of parole ineligibility. He merged counts seven and eight into count nine, second-degree aggravated assault, and imposed a consecutive term of ten years subject to the No Early Release Act (NERA). Concurrent sentences were imposed on the remaining counts.

The testimonial facts are as follows. At approximately 11 p.m. on June 27, 1998, J.B., a fifteen-year-old high school student, was staying with her aunt at Goldsmith Avenue in Newark. She went to a Chinese take-out restaurant about three blocks away to purchase some food. When she was walking back, a man, whom she subsequently identified as defendant, approached her from behind and asked her if she had the time. When she said no, he began walking quickly toward her saying that he would walk with her. After J.B. told him that there was no need for him to do so, defendant grabbed her, put her hand over her mouth and told her not to scream or he would kill her. He dragged her from the street into a backyard, pulled her to the ground, kissed her, put a knife to her neck and made her perform fellatio upon him twice. He then pulled down her pants to her ankles, breaking the button to her jeans, and raped her vaginally with her legs over his head. He flipped her over, stepped on the side of her face, cut her lower back with his knife and sat on her. After he got dressed, he told J.B. to count to 1,000 before getting up. He then walked away, leaving J.B. on the ground.

After J.B. counted to fifty, she got up quickly, ran to the back door of the house and knocked. Receiving no answer, she ran to the front and saw two men talking.

One of the men was Edward Brown, a Newark police detective, who had just pulled his car into his driveway. Brown later testified that prior to his encounter with J.B., he heard a faint scream. He remained in his car for five to ten minutes listening for any additional sound. Hearing nothing, he took his four-year-old son out of the car and left his vehicle. He saw a neighbor Michael Brown (unrelated) and the two talked for a few minutes. Toward the end of their conversation, Brown saw the man he later identified as defendant walk from the back of the home of an elderly couple named Smith. Knowing that the Smiths retired early, Brown thought it odd that someone would be walking on their property at that late hour. He handed his son to Michael so that he could investigate. As the man walked south on Bergen Street, J.B. came out of the driveway with her shirt torn off and pulling up her pants. She screamed, "Help me, I have been raped," and pointed at defendant.

Detective Brown quickly crossed the street, identified himself to defendant as a police officer, and showed him his badge. Defendant took off running, and Detective Brown chased him for several blocks until he caught him trying to jump a fence. Both men fell on the ground with the detective landing on top. He said defendant resisted arrest, punching and kicking him. Another off-duty Newark policeman who lived in the area saw the struggle and ran to help Brown subdue and handcuff the defendant. Detective Brown then told Michael Brown, who arrived at the scene, to and find the victim to see if she could identify defendant as her assailant. J.B. had returned to her aunt's house. She was taken to where defendant was held and identified him as the man who had raped her.

Later J.B. made an in-court identification of the defendant. She testified that during the assault defendant was in front of her and very close so she could see his face during the entire time. She also said there was a light in the area. She said she was able to identify defendant by his face and by his voice, which she described as "scary." Detective Brown also made an in-court identification of defendant as the man he saw walking down the driveway and later captured, adding that he never lost sight of defendant during the chase.

Defendant was taken to University Hospital for treatment of injuries he sustained when subdued by the police officers. Officer Edward Skulthorpe accompanied defendant in the ambulance. The officer testified that when defendant got off the stretcher, he patted defendant down and found a five-inch knife.

J.B. was examined at Beth Israel Medical Center after midnight by Dr. Stephen Amaefuna. He testified that when he examined J.B., she was crying and seemed terrified. Her eyes and nose were swollen, and there was a cut on the right side of her lower back. The pelvic examination revealed an abrasion to the vaginal wall, an oozing tear on the hymen which was only a few hours old, and semen in the vaginal area. Dr. Amaefuna also collected vaginal swabs as well as specimens of pubic hair, blood, saliva and nail clippings from J.B.

Detective Errello Spellman of the Newark Police Sexual Assault Unit was assigned to investigate the crime scene. She found a bag of Chinese food, a button from a pair of jeans, and a stone tile stained with fluid, which she submitted to the Newark forensic laboratory. She also took J.B.'s jeans and underpants to the lab. When she was given the knife, she took photographs of it.

The State called Dr. Mitchell M. Holland, the laboratory director of the Bode Technology Group in Springfield, Virginia, to testify about the results of DNA analysis on seven items submitted for DNA examination. The items examined were the following: two blood samples of J.B.; three blood samples of defendant; a swatch of the jeans J.B. was wearing; and a portion of her panties. Dr. Holland testified there was insufficient DNA in the denim swatch to determine the DNA profile. However, a part of J.B.'s panties disclosed a mixed DNA profile. The major component matched the defendant's DNA profile, and the minor component matched the profile of J.B. Dr. Holland opined that to a reasonable degree of scientific certainty, the sperm on the panties was defendant's. He explained that the chance of two people having the same DNA profile is one in thirteen quintillion for whites, one in 160 quintillion for blacks and one in 1.51 to 4.1 quintillion for Hispanics. Defendant is Hispanic; J.B. is black. On cross-examination defense counsel questioned Dr. Holland's qualifications regarding the statistical analysis of the DNA results and challenged the process on which the results were based.

Defendant testified in his own defense and denied kidnapping, raping and assaulting J.B. He said that on the night of June 27, 1998, he left a soul food restaurant at about 11 p.m. and was heading down Chancellor Avenue on his way to Elizabeth Avenue when he had a "bad feeling" and decided to go home. As he got to the corner of Chancellor and Parkview he said he suddenly "went black" and did not return to consciousness until he woke up and was being stomped by a police officer. He denied that he was ever at Goldsmith Avenue or that he possessed the knife shown in the photographs.

Following his conviction and sentence, defendant filed his notice of appeal. His appellate attorney makes the following five arguments:

POINT I - THE TRIAL COURT'S ONE-SIDED IDENTIFICATION INSTRUCTION WHICH SET FORTH TESTIMONY FAVORABLE TO THE STATE WITHOUT ANY MENTION OF FAVORABLE DEFENSE EVIDENCE REGARDING MISIDENTIFICATION, REQUIRES THE REVERSAL OF DEFENDANT'S CONVICTIONS. (Not Raised Below.)

POINT II - THE ERRONEOUS AND INCOMPLETE JURY INSTRUCTION ON EXPERT TESTIMONY OMITTED REFERENCE TO THE JURY'S OBLIGATION TO ASSESS THE FACTS ON WHICH THE DNA EXPERT RELIED AND THAT THE JURORS COULD REJECT THE EXPERT'S OPINION, THEREBY IGNORING DEFENSE CONTENTIONS REGARDING CHAIN OF CUSTODY PROBLEMS, QUALIFICATIONS OF THE DNA EXPERT, AND THE FAILURE OF THE STATE TO TEST THE RAPE KIT. (Not Raised Below.)

POINT III - THE INSTRUCTION ON KIDNAPPING WAS INCOMPREHENSIBLE AND DID NOT ACCURATELY CONVEY TO THE JURY THE ELEMENTS OF ENHANCED KIDNAPPING, ESPECIALLY SINCE THE INSTRUCTION MAY HAVE RESULTED IN A NON-UNANIMOUS VERDICT. (Not Raised Below.)

A. THE JURY INSTRUCTION AS A WHOLE WAS CONFUSING AND DID NOT ACCURATELY CONVEY TO THE JURY THE ELEMENTS OF KIDNAPPING.

B. THE KIDNAPPING INSTRUCTION MAY HAVE RESULTED IN A NON-UNANIMOUS VERDICT.

POINT IV - THE IMPOSITION OF A LIFETIME TERM

OF IMPRISONMENT FOR KIDNAPPING WAS EXCESSIVE

AND BASED UPON AN ERRONEOUS DOUBLE-COUNTING OF THE VICTIM'S AGE AND THE DEFENDANT'S CONTINUED CLAIM OF INNOCENCE.

POINT V - THE IMPOSITION OF A MAXIMUM 10-YEAR TERM OF IMPRISONMENT CONSECUTIVE TO THE LIFETIME TERM FOR KIDNAPPING WAS EXCESSIVE.

The defendant submitted a supplemental pro se brief in which he argued the following: (1) prosecutorial misconduct; (2) abuse of discretion by the trial judge in evidential rulings; (3) abuse of discretion by the trial judge in denying defendant's claim of ineffective assistance of counsel; (4) J.B.'s identification was hysterical and unreliable; (5) the chain of custody of evidence containing the DNA samples was never established; and (6) the police witnesses fabricated their testimony.

Addressing defendant's allegations of error in the trial judge's jury instructions, we must note initially that no objection was made to the charge. Therefore, our standard of review is plain error, defined as error clearly capable of producing an unjust result and of such magnitude to raise a reasonable doubt as to whether the jury was led to a result it would not otherwise have reached. State v. Branch, 182 N.J. 338, 353 (2005); State v. Daniels, 182 N.J. 80, 95 (2004); State v. Jordan, 147 N.J. 409, 422 (1997); State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2; R. 1:7-2. The charge must be read as a whole in determining whether there was any error. State v. Wilbely, 63 N.J. 420, 422 (1973). The error or admission in jury instruction must be critical to the jury's deliberation on the guilt of a criminal defendant. If so, it is a "poor candidate for rehabilitation" under the plain error theory. Jordan, supra, 147 N.J. at 422; see also State v. Weeks, 107 N.J. 396, 410 (1987).

Turning first to defendant's argument respecting the identification charge, the trial judge instructed the jury:

There are a couple of areas that I need to cover before going into the substantive charge. First, identification. There has been conversation about identification of Mr. Quintana in this case, so let me go over that.

The defense, Mr. Quintana, the defense, as part of [its] general denial of guilt, contends that the State has not presented sufficient, reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense. The burden of proving the identity of the person who committed the crime is upon the State.

For you to find the defendant guilty, the State must prove beyond a reasonable doubt that the defendant is the person who committed the crime. The defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else, or to prove the identity of that other person.

You must determine, therefore, not only whether the State has proven each and every element of the offense as charged beyond a reasonable doubt, which I will give you, but also whether the State has proven beyond a reasonable doubt that the defendant is the person who committed the crime or crimes.

The State has presented the testimony of J.B. and Detective Edward Brown as it relates to identifying Mr. Quintana as the individual who committed the offense. There were other people who identified him, but for different purposes.

Now, you will recall that the witnesses identified the defendant in court as the person who committed the offenses which are charged in the indictment, which you will receive.

The State also presented testimony that on a prior occasion, before the trial, the date of this incident, June 28th, 1998, that the witnesses identified the defendant as the person who committed the offenses.

Now, according to the witnesses, . . . J.B. and Detective Edward Brown, their identification of the defendant was based upon observations and perceptions that they made . . . at the time the offense was being committed, or shortly after the offense was committed.

Now, it is your function to determine whether the witnesses' identification of the defendant is reliable and believable, and whether it is based on a mistake or some other reason not worthy of belief.

You must decide whether it is sufficiently reliable evidence upon which to conclude that the defendant is the person who committed the offenses charged. So in evaluating the identification, you should consider the observations and perceptions on which the identifications were based and the witnesses' ability to make those observations perceptions. If you determine that the out-of-court identification is not reliable, you may still consider the witnesses' in-court identification of defendant if you find it to be reliable.

Now, unless the in-court identification resulted from the witnesses' observations or perceptions of the defendant during the commission of the offense, rather than it being the product of an impression gained at an out-of-court identification procedure, it should be afforded no weight. This ultimate issue of trustworthiness of both the in-court and out-of-court identification are for you to decide, to decide whether the identification, testimony of the witnesses, is sufficiently reliable evidence upon which to conclude that the defendant is the person who committed the offenses charged. You should evaluate the testimony of witnesses in light of factors for considering credibility, as I have already explained that issue to you on credibility, and I will give you some additional factors that you may want to consider.

Consider these. When looking at the witness's testimony and determining if it's sufficiently reliable, consider whether the witness had an opportunity to view the person who committed the offense at the time of the offense. Consider whether the witness had a degree of attention on the perpetrator when that person made the observation that they testified to. Consider the accuracy of any description that the witness gave prior to identifying the perpetrator. Consider the degree of certainty expressed by the witness in making any identification. Consider the length of time between the witness's observations of the offense and the first identification. Consider any discrepancies or inconsistencies between identifications, if they exist. Consider the circumstances under which the out-of-court identification was made. Also consider any other facts based on the evidence or lack of evidence in this case which you believe are relevant to the determination of whether or not the identifications were reliable. And consider the fact that identifying a witness who is not of the same race as the perpetrator, and whether that fact may have had an impact on the accuracy of the witness's original perception or the accuracy of the subsequent identification.

Defendant argues that the instruction was insufficient, unduly prejudicial and contrary to State v. Green, 86 N.J. 281, 293 (1981), and State v. Robinson, 165 N.J. 32, 49 (2000), because it did not reference defense evidence that defendant was misidentified. The argument has no merit. The only testimony proffered on behalf of defendant was his own version of events in which he stated he "went black" and awoke in police custody. No evidence of misidentification was presented on his behalf. Furthermore, the trial judge's instruction mirrored the model charge and was supplemented by plaintiff's request to charge cross-racial identification. There was no error in the identification charge and certainly no plain error.

Defendant next argues that the instruction given to the jury on the consideration and proper use of expert testimony was insufficient and erroneous so as to mandate reversal of his conviction because the instruction failed to refer to the jury's obligation to assess the facts upon which the DNA expert relied to form his opinion including the chain of custody of the items examined and also that it failed to inform the jurors that they could reject the expert opinion in part or in its entirety.

He asserts first that the trial judge ignored the defense arguments as to the State's failure to establish the chain of custody for the items evaluated by Dr. Holland. He underscores that the rape kit was not furnished to Bode Technology Group, and that while the panties were logged into the Newark forensic laboratory, they were not noted on a list of exhibits prepared by the Newark Police Department. This argument overlooks Detective Spellman's testimony that she took the panties to the Newark forensic lab and the testimony by Investigator Robert Flanigan that he transported the panties from the Newark forensic lab to the Bode laboratory. These witnesses were vigorously cross-examined, and the trial judge told the jurors on several occasions that they had to assess and weigh the credibility of all the witnesses. Therefore, we find no error in the trial court not including in the charge the defense's contention that the State failed to prove a chain of evidence for the items submitted to DNA examination.

More significant is the defense argument that the judge failed to instruct the jury as to its right to reject the opinion of the State's DNA expert. See State v. Berry, 140 N.J. 280, 304 (1995); State v. Jamerson, 153 N.J. 318, 342 (1988) (quoting State v. Odom, 116 N.J. 65, 82 (1989)). The Supreme Court stated in Berry,

Concerning the risk of prejudice, we have no doubt that that concern adequately can be addressed by trial court's qualifying instruction to the jury, framed in the context of the specific testimony adduced at trial, that conveys to the jury its absolute prerogative to reject both the expert's opinion and the version of facts consistent with that opinion, or to rely on that opinion in resolving the material factual issues.

[State v. Berry, supra, 140 N.J. at 304.]

In Berry, the Supreme Court examined the permissible uses of expert testimony in drug distribution cases and held that expert opinion as to modus operandi of drug dealers is generally admissible provided that the subject matter is beyond the ken of the average juror, the witnesses are qualified by knowledge or experience, and the testimony will assist the jury to understand the evidence or determine a fact in issue. Berry, supra, 140 N.J. at 290; State v. Kelly, 97 N.J. 178, 208 (1984); N.J.R.E. 702. In Kelly, the State narcotics expert gave an opinion as to drug distribution based upon his observation and interpretation of certain conduct by a defendant alone or in combination with others as well as the presence or absence of certain physical evidence. See also State v. Torres, 183 N.J. 554, 579-80 (2005), in which the Supreme Court held that an investigating officer could properly offer expert testimony regarding the hierarchy, organization and discipline of a street gang. This kind of expert testimony is deemed admissible provided that the expert "simply characterizes defendant's conduct based on the facts and evidence in light of his specialized knowledge." Odum, supra, 116 N.J. at 79. The field of expertise involved in this case is quite different. DNA testing to identify or eliminate a suspect is an accepted field for expert testimony as to identity, as opposed to less reliable expert opinion based on interpretation of conduct by law enforcement experts who are not as impartial as laboratory scientists. See State v. Harvey, 151 N.J. 117, 172-84 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); State v. Marcus, 294 N.J. Super. 267, 279-80 (App. Div. 1996), certif. denied, 157 N.J. 543 (1998); State v. Dishon, 297 N.J. Super. 254, 281-85 (App. Div.), certif. denied, 149 N.J. 144 (1997); State v. Deloatch, 354 N.J. Super. 76, 85-91 (Law Div. 2002).

In this case the judge twice explained the jurors' duty in evaluating the testimony of an expert witness. When Dr. Amaefuna, the physician who examined J.B. at Beth Israel, was called to testify as an expert in pediatric medicine, the judge gave the following instruction:

In this particular case, the doctor has skill, training and knowledge in the area of medicine, more particularly pediatric medicine. So [as an expert witness] . . . the doctor may be able to help you in understanding the evidence and assisting you in performing your duty as fact finders. Still, I want you to understand that you are still the sole judges of the facts, and I want to emphasize that the determination of [the] case still rests with you, the members of the jury, notwithstanding the expert who can assist you. You still have the ultimate determination on any evidence that's presented.

The court's final charge to the jury stated the following with regard to expert opinion testimony:

We had in this case two, if not three, expert witnesses. You had the doctor who testified on the DNA. You had the treating doctor in the emergency room, and you had the sex crime unit and the individual who testified. And I did give you the instructions on expert witnesses during the beginning of one expert witness testifying, I will repeat that today.

As it relates to [expert] witnesses, generally witnesses testify only about facts that are known to them. They are not permitted to give an opinion. An expert witness is an exception to this rule. An expert witness may give an opinion on the matter in which the witness has had some special knowledge, education, skill, experience or training.

An expert witness may be able to assist you in understanding the evidence before you, or in performing your duties as fact finders. However, I want to emphasize that the determination still rests solely with you as judges of the facts. They are here to guide you, but it is ultimately your determination which controls.

The judge's charge falls short of instructing the jurors of their right to give the expert's opinion the weight that they are satisfied it deserves and to reject it in whole or in part. As noted by the Supreme Court, "uncritical acceptance of expert testimony can becloud the issues." State v. R.W., 104 N.J. 14, 30 (1986); State v. Hackett, 166 N.J. 66, 81 (2001). See also Trantino v. N.J. State Parole Bd., 166 N.J. 113, 174 (2001) (a factfinder must not abdicate its responsibility to the opinion of an expert witness). Even the results of DNA testing may not be regarded as conclusive evidence of identification, see R.K. v. Dep't of Human Servs., 215 N.J. Super. 342, 346-47 (App. Div. 1987), and the jury must be apprised that it is never bound to accept the testimony of expert witnesses even if that evidence remains unrebutted. State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div.), certif. granted, 181 N.J. 549 (2004).

While the charge on the proper use of expert testimony was truncated, the judge did say, "I wish to emphasize that the determination still rests solely with you as judges of the facts." In the circumstances of this case we find that the jury instructions were not so insufficient to constitute plain error and require a reversal of the conviction. We note that much of defense counsel's cross-examination related to deficiencies in the State's proofs of the chain of custody and the delivery of items to the Bode laboratory, which was not related to the opinion testimony but rather factual testimony of the police witnesses, as to which proper credibility instructions were given. The rest of the cross-examination was directed not to Dr. Holland's conclusion that to a reasonable degree of scientific certainty defendant's DNA was present in J.B.'s panties, but to the statistical possibilities of the sample coming from an unrelated racial group.

We cannot ignore the overwhelming evidence of defendant's guilt aside from the expert testimony. J.B. made a positive and unqualified identification of the defendant shortly after her abduction and rape, and her in-court identification stood firm after cross-examination. The testimony of Dr. Amaefuna corroborated the fact that J.B. had suffered a sexual assault. Furthermore, Detective Brown testified as to his sighting of the defendant and his pursuit after J.B. pointed to defendant as her assailant. This testimony was uncontradicted save for defendant's claim that he suddenly went unconscious or "black." In the face of such overwhelming evidence, any insufficiency in the charge did not grievously prejudice defendant or possess a clear capacity to bring about an unjust jury verdict. See State v. Cordero, 293 N.J. Super. 438, 442-44 (App. Div. 1996) (holding that the omission of the trial judge was harmless error since there was an ample basis for the jury's finding, even without the expert testimony).

The defendant argues further that the jury instruction on kidnapping resulted in plain error because it was "incomprehensible [and] failed to accurately delineate the evidence of first-degree kidnapping and could have resulted in a non-unanimous verdict." A review of the court's charge on kidnapping reveals that initially it was confusing and marred by an obvious attempt to ad lib the elements of the crime rather than follow the model charge. However, in a final attempt to charge the elements of the crime, the judge referred the jury to that portion of the verdict form which required the jury to determine whether the State proved beyond a reasonable doubt that "defendant unlawfully removed J.B., a substantial distance from the vicinity where she was found, or unlawfully confined J.B. for a substantial period; and that the confinement was with the purpose to facilitate the commission of any crime or flight thereof, or inflict bodily injury on or terrorize the victim." The form also stated that if the jury found the defendant guilty it was to consider the issue of whether J.B. was left unharmed and, if not, defendant committed a sexual assault upon her when she was less than sixteen years old. The judge then properly instructed the jury on the meaning of the elements described in accordance with the law. Therefore, we find the charge was sufficient.

We turn now to defendant's sentence. He first asserts that the imposition of a lifetime term of imprisonment for kidnapping was excessive and based on improper double-counting of the victim's age as an aggravating factor and an improper finding of a lack of remorse on the part of the defendant by his continued claim of innocence. The court found the following aggravating factors:

Aggravating factors are as follows: Aggravating factor 2(b), a defendant knew or reasonably should have known that the victim was particularly vulnerable due to extreme youth. Aggravating factor 3, the risk the defendant will commit another offense. I believe this because the defendant is still in denial concerning this particular offense. . . . Aggravating factor 9, the need for deterring the defendant and others.

I did not impose aggravating factor 1. I do believe this particular factor has been taken into consideration with the enhanced sentence under kidnapping in considering aggravated sexual assault, especially with the age of the victim, as well as the subsequent adjudication of aggravated assault.

Defendant first argues that while the court stated that it did not find aggravating factor 1, the judge did refer to the age of the victim as being of "tender years" in relating the circumstances of the offense. We find that this did not constitute double counting, particularly in light of the court's statement that it did not consider the age of the victim or the heinous facts involving the aggravated sexual assault as aggravating factors under N.J.S.A. 2C:44-1(a), indicating that these facts were subsumed in the enhanced sentencing under the kidnapping statute.

Defendant contends that the judge erroneously considered a lack of remorse by defendant in imposing his sentence. The court did comment that in the face of strong evidence and the jury conviction, defendant still maintained his innocence and later stated:

This case does not speak of any compassion from Mr. Quintana because he saw no compassion for the victim. He shows no compassion for the victim today. He absolutely shows no respect for the system. The system is completely flawed to Mr. Quintana. The only one who is right in any respect is himself.

He hasn't acknowledged any iota of responsibility, yet he continues to claim various issues, as counsel was not effective.

We have stated that a defendant's refusal to acknowledge guilt following a conviction is generally not a germane factor in the sentencing decision. State v. Marks, 201 N.J. Super. 514, 539-40 (App. Div. 1985). However, a court may consider a lack of remorse for the offense as a basis for finding that defendant was likely to commit another offense. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. O'Donnell, 117 N.J. 210, 216 (1989). It also may be an appropriate consideration whether a prison sentence is necessary to deter a defendant from committing further criminal acts. See State v. Rivers, 252 N.J. Super. 142, 154 (App. Div. 1991). We find that the trial judge properly identified the aggravating factors and the absence of mitigating factors by competent credible evidence in the record. O'Donnell, supra, 117 N.J. at 215; State v. Jarbath, 114 N.J. 394, 400-01 (1989). In the circumstances of this heinous case a lifetime sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 365-67 (1984).

We further find that the imposition of a consecutive term of ten years for defendant's conviction of second-degree aggravated assault was not excessive. While the kidnapping and assault crimes were related, interdependent upon each other, and committed close in time, other factual considerations justified imposition of consecutive sentences. See generally, State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). As stated by the Supreme Court in Yarbough, there can be no free crimes. Id. at 643. Here, the crimes involved separate acts of violence. The evidence indicated that after defendant raped the victim, he turned her over, stepped on her face, cut her back and spat upon her. Each offense constituted a distinct and different injury to the victim which warrants consecutive punishment. See Yarbough, supra, 100 N.J. at 646. See also State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) certif. denied, 165 N.J. 492 (2000). Therefore, in light of the separate crimes and separate injuries suffered by the victim from the cruel actions of defendant, we find no abuse of discretion in the imposition of the consecutive term.

We also have considered defendant's pro se brief, and we find that all the arguments made therein are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

For reasons unexplained, the knife could not be found and produced at trial so the photographs were proffered in evidence. Another oversight was the failure to include J.B.'s underpants on the evidence list.

A quintillion is a billion billion. Since the beginning of the species, there have never been that many people on Earth.

(continued)

(continued)

25

A-1024-03T4

RECORD IMPOUNDED

July 28, 2006