STATE OF NEW JERSEY v. ANTHONY CHAPARRO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6255-03T46255-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY CHAPARRO,

Defendant-Appellant.

__________________________________

 

Submitted March 13, 2006 - Decided April 10, 2006

Before Judges Lintner and Holston, Jr.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

03-01-0038.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Jessica R. Kahn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant, Anthony Chaparro, was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (Count One); second-degree robbery, N.J.S.A. 2C:15-1 (Count Two); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Three); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Count Four); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Five). At sentencing, the trial judge merged the fourth and fifth count sexual contact convictions with the first count conviction of aggravated criminal sexual contact and imposed an extended life term with twenty-five years of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge imposed a consecutive ten-year term on the second count robbery conviction and a concurrent ten-year term on the third count sexual assault conviction. Defendant appeals and we affirm the judgment of conviction but remand for re-sentencing.

The following facts were established at trial. On September 4, 2002, F.P. left her home in Elizabeth around 9:50 a.m. to catch a bus to Union County College. In route to the bus stop, while crossing a pedestrian railroad bridge, F.P. was approached from behind by a man she later identified as defendant. Defendant told F.P. to keep walking and she complied. After grabbing her by the neck and telling her not to move, "because I have a knife," defendant pushed F.P. to the ground and began touching her buttocks and removing her bra. Defendant took from F.P.'s person her earrings, necklaces and two rings. He began touching and kissing her breasts.

As a vehicle approached, defendant dragged F.P. to the other side of the bridge where he forced her to the ground, took his penis out of his pants and put it in her mouth. When F.P. told him that she did not "know how to do it," he slapped her in the face. He then held her by the ears and put his penis back in her mouth. F.P. kept her eyes open in order to be able to see defendant. After approximately two to three minutes, defendant removed his penis from F.P.'s mouth and began to masturbate. He ejaculated on her left arm. Defendant then took F.P. by the arm and walked with her to the end of the bridge where he wiped the semen off of her arm with his shirt. As they walked further, defendant told F.P. to continue because he needed to retrieve something he had left on the bridge. When defendant went back toward the bridge, F.P. ran to a nearby house.

After F.P. explained what happened to construction workers at the house, they encouraged her to call the police. She called the police, who told her to go to a nearby supermarket. She went to the supermarket, accompanied by two of the workers, where she met Elizabeth Police Officers Robert Brennan and Edward Anaya. Upon speaking with F.P., the officers realized that she had been sexually assaulted. F.P. described defendant as a twenty-five to thirty-year-old "light skinned Hispanic male, approximately five nine, five ten" who was wearing gray khaki shorts, a dark blue baseball hat and a white t-shirt. The officers obtained a description of defendant and transmitted it over the police radio.

F.P. got into the patrol unit and she and the officers searched the streets for the suspect. F.P. indicated that she absolutely would be able to identify defendant if she saw him. They searched for the suspect for ten or twenty minutes with the assistance of other units, but were unable to find him. They then went to the bridge, where F.P. further explained the attack. F.P. expanded her description, stating that defendant was five-eight to five-nine, had dark brown or black hair, and wore cross-training sport type sneakers. When Brennan told F.P. that he was six feet tall and asked her how tall the suspect was in comparison to him, she responded that the suspect was "a few inches shorter." Brennan then took F.P. to Overlook Hospital where she was examined by sexual assault nurse Joanne Devine. Devine noted that F.P. had a hematoma on her eye, marks on her neck, bruises on both breasts, a scrape on her knee, and scrapes, scratches, and bruises down her arm. Devine swabbed F.P.'s arm and lip and mouth area. She also examined F.P.'s left arm with a light that reveals body fluids, but she was unable to find any.

F.P. also gave a statement to Detective David DeRosa in which she described defendant's hair as brushed back. She gave defendant's height at five-seven to five-eight and his weight between 130 and 140 pounds. Detective DeRosa, his partner, Detective Rudy Vines, and F.P. returned to the scene where F.P. walked the detectives through the assault. The next day, F.P. went to the Union County Prosecutor's Office to view photographs for the purpose of identifying her attacker. Detective DeRosa arranged for F.P. to meet with a sketch artist, on September 11, 2002, who drew a composite sketch. The sketch was posted around the area and published in the local newspapers. At trial, the parties stipulated that Robert Lopez of Perth Amboy saw the sketch in the Home News Tribune and thought it resembled defendant and so reported it to the police.

On September 26, 2002, Detective Paul Pasternak of the Elizabeth Police Department administered a photo array to F.P. Pasternak had no knowledge of the case or the suspect when he conducted the photo array. F.P. was instructed to look at the six photos of similar looking people one at a time, from which she made an identification. F.P. indicated that she was sure that the individual in the picture was her attacker. At trial, F.P. identified defendant as her attacker, stating that she had no doubt it was he. F.P. indicated that she sometimes wears glasses for viewing long distances but not for short distances. The parties stipulated that at the time of his arrest defendant reported that he was six feet and one inch tall, he weighed 215 pounds, and that he was forty-eight years old at the time F.P. was attacked.

Alcimede Cuello testified that on September 4, 2002, defendant was working with him in Pennsylvania from 8:00 a.m. until 1:00 p.m. Cuello indicated that he picked defendant up from his home in Perth Amboy at 6:00 a.m. that same day for work. Defendant admitted into evidence a document prepared by Cuello showing the work schedule of defendant to include the day in question. Cuello testified that he paid defendant ten dollars per hour for his work and that defendant had worked sixty-three hours for that pay period. Defendant produced a copy of a $420 check written by Cuello, made payable to "cash," which Cuello testified he gave to defendant. Cuello testified that the $420 was payment for the 63 hours worked. No explanation was given for the discrepancy between the hours worked and the wages paid.

Blanca Gonzales, defendant's sister-in-law, testified that defendant was living with her at the time of the assault. Gonzales testified that she saw defendant leave her home at 6:00 a.m. on the date of the assault. Gonzales also testified that she had never seen defendant with straight, slicked-back black hair. Defense counsel's summation was essentially comprised of the argument that the victim misidentified defendant. In his opening statement, he referred to defendant, who was sitting in the courtroom, as having curly, salt and pepper hair and big ears.

On appeal, defendant raises the following points:

POINT ONE

THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE IDENTITY BEYOND A REASONABLE DOUBT.

POINT TWO

THE IMPROPER INTRODUCTION OF EVIDENCE THAT OFFICER DEROSA INCLUDED DEFENDANT'S PICTURE IN THE PHOTOGRAPHIC ARRAY BECAUSE A MEMBER OF THE COMMUNITY IDENTIFIED DEFENDANT FROM THE POLICE SKETCH VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT THREE

THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY RELYING ON FACTS NOT PROVEN AT TRIAL AND ON VOUCHING FOR THE CREDIBILITY OF THE VICTIM. (Not Raised Below).

POINT FOUR

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A LIFE TERM.

POINT FIVE

THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S SEXUAL ASSAULT AND ROBBERY CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986) [sic].

POINT SIX

IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005). (Not Raised Below).

In a pro se supplemental brief, defendant raises the following points:

POINT ONE

THE TRIAL COURT [SHOULD] HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE IDENTITY BEYOND A REASONABLE DOUBT.

POINT TWO

THE IMPROPER INTRODUCTION OF EVIDENCE THAT OFFICER DEROSA INCLUDED DEFENDANT'S PICTURE IN THE PHOTOGRAPHIC ARRAY BECAUSE A MEMBER OF THE COMMUNITY IDENTIFIED DEFENDANT FROM THE POLICE SKETCH VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT THREE

THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY RELYING ON FACT NOT PROVEN AT TRIAL AND ON VOUCHING FOR THE CREDIBILITY OF THE VICTIM. (Not Raised Below).

POINT FOUR

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A LIFE TERM.

POINT FIVE

THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S SEXUAL ASSAULT AND ROBBERY CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH (CITATION OMITTED).

POINT SIX

THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE IT RELIED ON PERJURED TESTIMONY AND ALLOWED IT TO GO UNCHECKED THROUGHOUT THE TRIAL, BY KNOWINGLY AND WILLINGLY ALLOWING STATE WITNESSES TO WIT, BOTH VICTIM, AND ARRESTING OFFICER TO GIVE PERJURED TESTIMONY IN ORDER TO OBTAIN A TAINTED CONVICTION. STATE V. CAHILL, 125 N.J. SUPER. 492, 311 A.2d 760 (N.J. Super 1973) REMANDED [sic].

POINT SEVEN

THE COURT SHOULD NOT HAVE ALLOWED STATE EXPERT WITNESS TO TESTIFY ON ANY MATTERS CONCERNING DNA.

Defendant first contends that the judge should have granted defendant a judgment of acquittal, arguing the evidence "fell woefully short of establishing defendant's guilt." Defendant raises essentially the same contention in his pro se brief. Initially, we note that defendant did not move for a judgment of acquittal at the end of the State's case, rather he moved for a new trial following the verdict, asserting the verdict was against the weight of the evidence.

R. 3:20-1 entitles a defendant to move for a new trial to set aside the verdict as against the weight of the evidence following a guilty verdict:

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

The object of the new trial motion is to "correct clear error or mistake by the jury." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). The trial judge is directed to evaluate the tangible factors relative to the proofs and the intangible "feel of the case." Ibid. In such a review, an appellate court must determine whether a jury could have rationally found that the elements of the crime were presented beyond a reasonable doubt. State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993). Where the jury reaches a verdict based on witness credibility, such a verdict must be upheld absent clear evidence of mistake or prejudice. Ibid. A jury is free to accept or reject the testimony of a witness based on credibility. State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).

Defendant attacks the sufficiency of the evidence. He asserts that F.P.'s description of defendant's height, age, and hair type and color were so divergent from defendant's actual appearance that his identification as the perpetrator was not proven beyond a reasonable doubt. He maintains that the only evidence establishing guilt was F.P.'s uncorroborated and questionable identification. Addressing these same contentions on defendant's motion for new trial, the trial judge observed:

Well, the trial went on in front of me with a jury, of course. The lady was, I thought, a riveting witness. She testified that during this horrible event she made an effort to look at the person's face. She was close to his face on various occasions. She was close to his face when he slapped her. She was close to his face when he made her do the oral intercourse of him. She made a point of studying his face.

. . . .

There's no question there was a sexual assault but the only issue was identification. There's [sic] issues about height and the like, but the lady was a very small lady. The lady was handled like a rag doll by the person. An inch or two difference in height a jury determined -- and I think they were truly right in this case -- it was not controlling. She was able to identify the person who did this terrible crime to her. She had ample opportunity to study his face, remember his face, and she said and the jury believed [defendant] did it.

She identified his picture approximately six weeks after the event . . . . The jury heard this alibi, such as it was, and some people would say it wasn't overly strong. The person who was the person who purported to have the alibi record keeping was not overly impressive. He says that a particular pad of paper justified and showed that your client was working for him but the numbers and hours he shows your client was working for him did not jive with the hourly rate or the check that was drawn. And the check that was drawn was not drawn payable to your client but to cash and he couldn't even identify the signature of the person who purportedly signed the endorsement in the back. So the jury having heard all this, determined beyond a reasonable doubt that your client, indeed, was the person.

The jury resolved the issues of credibility against defendant. See State v. Haines, 20 N.J. 438, 446-47 (1956). We agree with the trial judge's assessment that there was sufficient evidence establishing defendant's guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). The verdict reached was neither against the weight of the evidence nor did it constitute a manifest denial of justice. Accordingly, we reject the contentions found in Point I of defendant's brief and Point VI of the supplemental pro se brief.

Defendant next contends that the admission into evidence that a member of the community identified defendant from the sketch in the newspaper unfairly bolstered the victim's identification of defendant. As we previously pointed out during the trial, defendant agreed and stipulated that Robert Lopez of Perth Amboy saw the sketch in the Home News Tribune, thought it resembled defendant, and reported his feelings to the police.

Defendant places heavy reliance on the recent cases of State v. Branch, 182 N.J. 338 (2005) and State v. Tilghman, 345 N.J. Super. 571 (App. Div. 2001). In Branch, the trial court was reversed for permitting a detective to testify that he placed the defendant's picture in a photographic array because he had received information from an unknown source. Branch, supra, 182 N.J. at 372. Concluding that the statement attributed to the unknown source was inadmissible hearsay, the Court in Branch held that failure to call the nameless person as a witness deprived the defendant of his right of confrontation. Id. at 348. Here, by contrast, Lopez's identity was known to defendant who, rather than insisting upon him being produced, stipulated to his out-of-court statement.

Defendant also mistakenly relies on Tilghman. In Tilghman, we held that eliciting testimony from a police officer that he developed the defendant as a suspect because he knew him, improperly allowed the jury to infer that the defendant had prior criminal contact with the police officer. Tilghman, supra, 345 N.J. Super. at 578-79. The circumstances here are inapposite. It was only after the trial judge precluded any reference to Lopez's prior status as a police officer as the basis for his knowledge of defendant that defendant entered into the stipulation. The stipulation was limited to Lopez's belief that the sketch resembled defendant; it did not encompass the basis of his knowledge of defendant.

Moreover, defendant's claim, raised now for the first time on appeal, that the evidence that DeRosa included his picture in the photographic array because Lopez identified him from the sketch in the newspaper is devoid of merit. Generally, trial error which is induced, encouraged, acquiesced in, or consented to by defense counsel does not form a basis for reversal on appeal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974); see also State v. Pontery, 19 N.J. 457, 471 (1955); State v. Roscus, 16 N.J. 415, 428 (1954). Simply stated the admission of the now challenged stipulated evidence was not error much less plain error clearly capable of producing an unjust result. R. 2:10-2.

Defendant next asserts that the State's closing arguments, which were not objected to, amount to plain error warranting reversal. We briefly describe the applicable legal principles. In reviewing alleged prosecutorial misconduct, we consider: (1) whether defense counsel objected in a timely and proper fashion to the remarks; (2) whether the offending remarks were withdrawn promptly; and (3) whether the court gave the jury curative instructions. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); State v. Setzer, 268 N.J. Super 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). Where, as here, if the defendant's lawyer fails to object at trial, we may legitimately infer that counsel did not consider the remarks to be inappropriate or prejudicial. State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.), certif. denied, 134 N.J. 480 (1993). When prosecutorial misconduct is being raised for the first time on appeal, we need only be concerned with whether "the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). Even where a prosecutor has been guilty of misconduct, reversal of a defendant's conviction is not necessary unless the conduct was so egregious that it deprived the accused of a fair trial. State v. Ramseur, 106 N.J. 123, 322 (1987).

A prosecutor may make comments on the evidence and the inferences that may reasonably be drawn from the proofs. State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Frost, 158 N.J. 76, 82 (1999); State v. Harris, 156 N.J. 122, 194 (1998); State v. Perry, 65 N.J. 45, 47-48 (1974); State v. Farrell, 61 N.J. 99, 103 (1972); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969). It is inappropriate, however, for a prosecutor to "'express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant,'" State v. Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards for Criminal Justice 3-5.8(b) (2d ed. 1980)), or to refer to matters that are not fairly supported by the evidence. State v. Bogen, 13 N.J. 137, 140, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953). In evaluating a claim of error, however, we are obliged to recognize that a prosecutor may argue the State's case in a forceful manner. Setzer, supra, 268 N.J. Super. at 565. It is not unusual to find that criminal cases are tried with some degree of emotion. "[A] prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." Johnson, supra, 31 N.J. at 510-11.

Within this analytical framework, we address defendant's contentions. Defendant first challenges the following remarks as not being supported by the evidence:

Your Honor, counsel, you know the way this crime occurred speaks to the size of the man. . . . But you know the methodical control of this, of this rape, of this whole incident you know speaks to the utter domination of this woman by a big man.

. . . .

This kind of conversation, this kind of act shows you just how completely blown away the girl was by the size, domination, by the power of this man. And someone five seven, hundred 30 pound jockey barely, bigger than the girl does not have that kind of domination. Doesn't have it.

. . . .

Again the size. She was thrown to the ground, she was picked up, she was moved. A hundred 30 pound person. She's almost a hundred 30 pounds probably. I don't know her weight, I wouldn't be a good judge at it either, but hundred 30 pound person doesn't throw a person around like a rag doll, just brutalizes somebody like this. She didn't want to be sexually abused. She wanted to do something to stop it. She couldn't. Fighting was out of the question; running was out of the question. She had no chance. If she's the same size as somebody she's got a chance. There was no chance here. There was no idea that she could do anything about it. That speaks to the size of the person that dominated her.

Defendant argues that these remarks were improper because they suggest, without any basis in the record, that it would be physically impossible for a five-foot, seven-inch man, and weighing 130 pounds to commit the assault described. Defendant's contention fails to recognize the strategy used in his closing remarks. Arguing misidentification, the defense's closing remarks emphasized the divergence between the victim's estimation of her attacker's height and weight as five-seven or five-eight and 130 to 140 pounds and the fact that it did not match that of defendant, who counsel had stand in front of the jury box. The prosecutor's remarks were made in response to defendant's arguments in an effort to establish that her mistaken estimate of defendant's height and weight did not translate to a misidentification of the person who attacked her. The prosecutor's comments were not inconsistent with the evidence presented and were appropriate argument under the circumstances.

We next address defendant's contention that the prosecutor improperly vouched for the credibility and character of the victim. Defendant challenges the following remarks:

And the in-court identification, [defense counsel] said it's not a test, it's not a test. You know what it's a test of? It's a test of her honesty. Is she a good person or bad person? Does she take this lightly you know? . . . That person has strength. And anybody who saw her testify knows what's inside her, knows how strong she is; knows the value of something she says. And if she looks across the court and says that's the person that sexually assaulted me, ask yourself what kind of person she is. . . .

. . . .

Again the -- this case is about what you think about [F.P.] Really comes down to whether or not a person who spent, there was testimony, up to 10 minutes. . . . Does she know who raped her?

. . . .

What makes this identification strong is the quality of the person that gave it to you. You be the judge of the quality of the person. And we're talking 10 o'clock in the morning. We're talking a space. She couldn't say it was 4 or 5 feet long like a sidewalk space looks; or as wide as from this table to the wall, this jury room.

. . . .

I think you've heard the evidence and you've heard [F.P] and you know how close and confined that was. And what she saw you know she's telling the truth and you know he's guilty

. . . But if she's telling speaking the truth, then he's guilty of everything. Thank you.

Here, contrary to defendant's contention, the prosecutor did not give a personal opinion of the victim's character or credibility nor did he suggest that there was a motive or reason for her telling the truth. See State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994) (holding it improper to argue that convicting defendant would "make a difference" in their communities, or that disregarding a police officer's testimony "would be a crime"); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993) (error to say a police officer is truthful to avoid risking his career); State v. West, 145 N.J. Super. 226, 234 (App. Div. 1976) (it is improper argument to say a lot of harm could come to a police officer for lying because his career would be finished in a minute), certif. denied, 73 N.J. 67 (1977).

The prosecutor's remarks referred to the quality of the victim's statement given her close proximity to defendant at the time of the offense. These comments did not constitute an improper expression of the prosecutor's opinion concerning defendant's guilt. See State v. Hawk, 327 N.J. Super. 276, 285 (App. Div. 2000); State v. Ross, 249 N.J. Super. 246, 249-50 (App. Div.), certif. denied, 126 N.J. 389 (1991). Indeed, the comments essentially left it up to the jury to decide whether the victim was a credible witness. Moreover, the trial judge instructed the jury that the comments of counsel were not evidence and were not controlling. We reject defendant's contention that the prosecutor's references to credibility in his closing argument constituted misconduct. Even if we believed that the challenged remarks flirted on the edge of acceptability, which we do not, they did not amount to plain error, R. 2:10-2, as they were not "so egregious [as to] deprive[] defendant of a fair trial." Ramseur, supra, 106 N.J. at 322.

Defendant contends that the trial judge: (1) abused his discretion in imposing an extended term as a persistent offender, N.J.S.A. 2C:44-3a; (2) improperly imposed an unjustified consecutive sentence without giving reasons; and (3) imposed a sentence above the presumptive term in violation of State v. Natale (Natale II), 184 N.J. 458, 466 (2005), and State v. Abdullah, 184 N.J. 497, 506 (2005).

In sentencing defendant to an extended term, the trial judge stated:

It has been conceded and I find the State has established the statutory prerequisites to hold this defendant to be extended term eligible. The prior record consists of the following convictions: 1987 sentence for sexual assault, 15 years term, he was on parole, violated parole, maxed out in '97; in '93, possession of a weapon, he has violated parole and maxed out in '96; in '97, failure to register under Megan's Law; 2002 criminal sexual contact for which he received County Jail. On Megan's, he got one year State prison.

The Avenel report, page two, indicates in addition to the '85 conviction in which he was convicted of a sexual assault upon a 14-year-old girl that he threatened with a knife and forcefully entered vaginally and anally -- and there are two additional young women taken by force by him at the same time. All these women in 1985 were all strangers, all threatened by him, all forced to be penetrated by him by threat of a weapon or knife point.

Based upon these serious convictions of -- which, of course, there are four. Several of which involved preying upon women and forcefully penetrating women by force or threat of force. This gentleman is, indeed, a persistent offender for whom his commitment for an extended period of time is necessary to protect the public.

. . . .

Now, on the aggravating and mitigating factors, there are aggravating factors three, six, and nine based upon the seriousness of the prior charges, likelihood for recidivism and need to protect the public. All those are clearly in the case. Nothing mitigates.

The New Jersey sentencing guidelines allow a court to impose extended terms of imprisonment in certain situations. As set forth by State v. Dunbar, 108 N.J. 80, 89 (1987), the following four-part test shall guide the discretion of the sentencing court in its determination:

First, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Finally, it must determine whether to impose a period of parole ineligibility.

Certain crimes, such as a Graves Act offense and sexual assault of a minor, require a mandatory extended term. N.J.S.A. 2C:44-3.

In order for the judge to proceed through the above process, application for an extended term must be made by the prosecuting attorney. N.J.S.A. 2C:44-3. A defendant challenging a prosecutor's application for an extended term must establish that the decision constituted an abuse of prosecutorial discretion. State v. Kirk, 145 N.J. 159, 169 (1996). Defendant asserts that his prior record does not justify the imposition of a persistent offender extended term. We disagree. Here, the factual prerequisites under N.J.S.A. 2C:44-3a are sufficiently interwoven with the facts of prior crimes to justify an extended term. State v. Dixon, 346 N.J. Super. 126, 139-41 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002). "Considering the relative weight, severity, and similarity of the prior offenses," we find no fault with the trial judge's decision to impose the sentence as a persistent offender. Dunbar, supra, 108 N.J. at 96.

The State concedes that re-sentencing is required in light of the recent holdings in Natale II and Abdullah because the judge's basis for imposing a sentence in excess of the presumptive term was not predicated solely on defendant's prior convictions. Moreover, the record reflects that the judge did not provide any reasons for imposing the consecutive sentences. A trial court is expected to give "a separate statement of reasons for [its] decision to impose consecutive sentences . . . ." State v. Miller, 108 N.J. 112, 122 (1987). That requirement is crucial to the appellate review process. We are, therefore, unable to determine on this record whether the consecutive sentence imposed was justified.

Finally, we briefly address the contentions raised in defendant's pro se supplemental brief. The first five points are identical to those already discussed and decided. We need not address them again. In his last two points, defendant contends: (1) the victim and arresting officer gave perjured testimony, thus tainting his conviction; and (2) the court should not have allowed Nurse Devine to give testimony that there was no DNA evidence found. We are satisfied, after considering these remaining contentions and supporting arguments and based upon our careful review of the entire record, that they are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

We affirm the judgment of conviction and the sentence insofar at it adjudged defendant a persistent offender under N.J.S.A. 2C:44-3a. We remand for re-sentencing, however, in light of Natale II and to allow the trial judge to provide his reasons for justifying a consecutive sentence on the second count robbery conviction. We do not retain jurisdiction.

 

While the witness did not indicate so, the assumption is that no identification was made since other identification methods were pursued.

Initially, defendant objected to the citizen testifying because he was formerly a police officer who knew defendant from a prior arrest. The judge ruled that the citizen could testify, but not regarding how he knew defendant or the prior arrest. The parties later stipulated to the identification, rather than have him testify.

The witness was not asked whose picture F.P. identified, but both parties indicate in their briefs that the photo was of defendant.

There was no testimony nor was there any stipulation placed on the record as to defendant's appearance at trial.

(continued)

(continued)

24

A-6255-03T4

RECORD IMPOUNDED

April 10, 2006