STATE OF NEW JERSEY v. DAVID MOSES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0332-07T40332-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID MOSES,

Defendant-Appellant.

__________________________________

Submitted January 26, 2010 - Decided July 7, 2010

Before Judges Wefing and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 05-04-0871.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Durrell Wachtler Ciccia,

Designated Counsel, on the briefs).

Robert D. Laurino, Acting Essex County Prosecutor,

attorney for respondent (Sara A. Friedman,

Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM

Defendant was indicted for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7); second-degree sexual assault, N.J.S.A. 2C:14-2c(1); and third-degree criminal restraint, N.J.S.A. 2C:13-2. A jury acquitted defendant of the first offense but convicted him of the remaining two. The trial court sentenced defendant to an aggregate eight-year term in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for reconsideration of his sentence.

It was undisputed at trial that defendant engaged in sexual intercourse with L.F. on November 23, 2002; defendant freely admitted doing so. He maintained, however, that their encounter was consensual.

L.F. was twenty-three years old at the time, and mildly retarded. She worked at a QuikChek store on Springfield Avenue in Maplewood, taking care of the coffee area in the store. At approximately 7:00 a.m. on November 23, 2002, she was standing on Springfield Avenue in Irvington waiting for her bus to come to take her to her job. Defendant, driving a Nissan Pathfinder, was stopped for a red light. L.F. testified that defendant rolled down his car window and asked if she wanted a ride, and she said she did as she was cold. Defendant testified that she asked him for a ride. He drove up Springfield Avenue for some distance and then pulled off the road and behind a car wash that was closed. He said he did so because she had reached out and touched his leg, which he interpreted as a sexual advance. He said he asked if she wanted "to get into it" and she said yes.

L.F. gave an entirely different version of what occurred. She denied ever touching defendant's leg, said she had repeatedly told defendant, "No," but that he had persisted and penetrated her vaginally.

Both the prosecution and the defense presented expert testimony with respect to L.F.'s mental limitations and her ability to understand the concept of consenting to sexual activity. By its verdict, the jury rejected the prosecution's theory that L.F. was mentally defective but also rejected defendant's testimony that she consented to the act.

Defendant raises two arguments on appeal:

POINT I DEFENDANT'S CONVICTIONS SHOULD BE VACATED BECAUSE THESE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE

POINT II DEFENDANT'S SENTENCE IS DEVOID OF FACTUAL FINDINGS AND MANIFESTLY EXCESSIVE

We have carefully reviewed the trial transcript, and we are satisfied that there is insufficient merit in defendant's first argument to warrant discussion in a written opinion for it would have no precedential value. R. 2:11-3(e)(2). The jury was presented with starkly contrasting versions of what occurred; it was entirely free to select that evidence which it deemed most credible.

During the course of our review of this matter, we noted an incident that occurred during the trial but which had not been dealt with in the parties' briefs, in which the trial court excused a juror after L.F. testified. Based upon our obligation to provide a just result, we asked for supplemental briefing. Those briefs have been submitted, and we now take up the question that concerned us.

At the conclusion of L.F.'s testimony, one member of the jury asked to speak with the trial court privately. The trial court properly informed the juror that the attorneys needed to be present. The juror then asked whether he could "presume[,] just based upon the fact that after an alleged sex crime, the alleged victim is shown a picture of the defendant, does that mean he's been convicted or accused of another sex crime?" The trial court responded that it did not and gave a brief summary of the general instruction that police photographs are from many sources and that there is no significance to the police having had defendant's photograph. That appeared to satisfy the juror.

The juror then continued, however, with the following statement, "My other concern is and I don't know if you can answer this for me, is at this point I am personally going to disregard [L.F.'s] entire testimony just due to the inconsistencies. I just can't believe a word she says." The trial court sent the juror to lunch, telling him not to discuss anything with any other member of the panel.

It then turned to the attorneys. The prosecutor took the position that the juror had to be immediately removed from the panel while defendant's attorney urged the trial court to make further inquiry. The trial court adopted this latter course and, after the luncheon recess, again spoke to the juror after hearing further argument from the attorneys.

The trial court asked the juror whether he would be able to keep an open mind and the juror responded, "Certainly, that is just my opinion." The trial court pointed out that the juror had only heard L.F. at that point and that further witnesses might corroborate what she had said. To this, the juror answered,

My problem was that she said a number of different things and contradicted earlier statements and that was simply my determination on her testimony. But that won't color the way I view further witnesses. It won't color the way I viewed Officer Oaks testimony. It's simply because of her position in the case and I thought it was important that I speak to you about it . . . .

When the juror said that he had not made any decision on how he felt about the case, the trial court pointed out that, in fact, he had in light of his decision about L.F.'s testimony. The trial court noted that another witness might support her credibility and to this, the juror responded, "There are just so many things in her testimony -- she said a lot of different things that were contradicted and I would just disregard her completely." The court noted that an expert was expected to testify and that perhaps L.F.'s manner of testifying was due to her disability. The juror answered, "Right. But I wouldn't believe anything. I couldn't tell what was the truth because she said so many different things. It has nothing to do [with] how I would treat other witnesses." Asked if he could judge the case going forward, he said he absolutely could. After further colloquy and after hearing from the attorneys, the trial court excused the juror, and the case proceeded with thirteen jurors.

In defendant's supplemental brief, defendant contends that the trial court abused its discretion in excusing the juror and the State contends in its supplemental brief that the trial court properly exercised its discretion when confronted with a juror who seemed to have a fixed view at the outset of the case. Thus, the parties appear to agree that the standard that we must employ in deciding the question is whether there was an abuse of discretion on the part of the trial court.

After reviewing the colloquy in detail, and considering the briefs submitted, we have come to the conclusion that we are unable to find an abuse of discretion. We note particularly that in the face of repeated questions from the trial court, the juror steadfastly adhered to his position that he would disregard L.F.'s testimony. In light of that fixed position, his assurance that he could judge the case going forward has a hollow ring. The juror appeared unwilling to consider the possibility that future developments in the trial could lead him to reassess his view of L.F.'s testimony. His words in this regard belied his statement that he would have an open mind. In the face of this, the trial court's action was entirely appropriate.

We are, however, concerned about certain aspects of the sentencing proceeding. We acknowledge the limited scope of our review of a trial court's sentencing decisions. State v. Bieniek, 200 N.J. 601 (2010). The trial court's conclusions, nonetheless, with respect to the applicable aggravating and mitigating factors must find support both in the trial record and in the law. State v. Roth, 95 N.J. 334, 363 (1984) (noting that the factors used in sentencing must be based on "competent, reasonably credible evidence").

The trial court found three aggravating factors, #1, #3 and #9, N.J.S.A. 2C:44-1a(1), (3) and (9), and one mitigating factor, #7, N.J.S.A. 2C:44-1b(7), no prior history of criminal activity. The trial court did not explain why it concluded that aggravating factor #1 was applicable and in the absence of such an explanation, we are uncertain whether its use in this case amounts to double-counting.

Further, the trial court did not acknowledge or consider mitigating factor #11, excessive hardship to defendant's dependents, N.J.S.A. 2C:44-1b(11). It is clear from the record that defendant was the sole support of his fiancée and their twelve-year old daughter. The Supreme Court held in State v. Dalziel, 182 N.J. 494, 504-505 (2005), that while the sentencing court need not accord a mitigating factor any particular weight, it must include it in its sentencing calculus; it may not just ignore it.

We thus remand the matter to the trial court for resentencing in accordance with these principles.

Defendant's convictions are affirmed; the matter is remanded for resentencing.

 

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