STATE OF NEW JERSEY v. PERCY SELLES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1577-02T51577-02T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PERCEY SELLES,

Defendant-Appellant.

___________________________________

 

Submitted March 12, 2007 - Decided April 13, 2007

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

00-10-01349-I.

Michael B. Campagna, attorney for appellant.

Stuart Rabner, Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, and Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On October 25, 2000, a Union County grand jury returned Indictment No. 00-10-01349, charging defendant, Percy Selles, and co-defendants, Ariel Fernandez and Andres Sanabria, with first-degree kidnapping, N.J.S.A. 2C:13-1b (Count One); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), (4), (5), (6) (Counts Two, Three, Four and Five); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Six); four counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Counts Seven, Eight, Nine and Ten); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Eleven); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Twelve); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4) (Count Thirteen); first-degree robbery, N.J.S.A. 2C:15-1 (Count Fourteen); second-degree burglary, N.J.S.A. 2C:18-2 (Count Fifteen); third-degree burglary, N.J.S.A. 2C:18-2 (Count Sixteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Seventeen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Eighteen); third-degree terroristic threat to kill, N.J.S.A. 2C:12-3b (Count Nineteen); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), (4), (5), (6) (Counts Twenty, Twenty-One, Twenty-Two and Twenty-Three); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Twenty-Four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Twenty-Five); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Twenty-Six); and second-degree conspiracy, N.J.S.A. 2C:5-2 (Count Twenty-Seven).

Defendant was tried jointly with co-defendant Fernandez over a period of six days. During the trial, the State dismissed seven of the original counts of the indictment. Thereafter, the counts originally numbered Twelve to Seventeen and Twenty to Twenty-Seven were renumbered as counts Seven to Twelve and Thirteen to Twenty.

On March 27, 2002, a jury found defendant guilty of all of the charges except that it found him guilty of the lesser- included offense of third-degree aggravated assault in place of second-degree aggravated assault (Count Seven, formerly Count Twelve) and acquitted him of fourth-degree unlawful possession of a weapon (a stick) (Count Nineteen, formerly Count Twenty-Six).

On October 11, 2002, the judge sentenced defendant. He imposed a term of twenty-five years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree kidnapping conviction (Count One); a consecutive eight-year term with four years of parole ineligibility on the second-degree burglary conviction (Count Ten, formerly Count Fifteen); a concurrent fifteen-year term on the first-degree aggravated sexual assault conviction (Count Two); a concurrent eight-year term on the second-degree aggravated assault conviction (Count Seven, formerly Count Twelve); a concurrent eighteen-month term on the fourth-degree aggravated assault with a gun conviction (Count Eight, formerly Count Thirteen); a concurrent fifteen-year sentence on the first-degree robbery conviction (Count Nine, formerly Count Fourteen); a concurrent fifteen-year term on the first-degree aggravated sexual assault conviction (Count Thirteen, formerly Count Twenty); a concurrent five-year term on the third-degree possession of a weapon (stick) for an unlawful purpose conviction (Count eighteen, formerly Count Twenty-Five); and a concurrent eight-year term on the second-degree conspiracy conviction (Count Twenty, formerly Count Twenty-Seven). The judge merged the Counts Three, Four, Five, and Six convictions with the Count Two conviction, the Count Eleven conviction with the Count Ten conviction, and the Counts Fourteen, Fifteen, Sixteen, and Seventeen convictions with the Count Thirteen conviction. Defendant's aggregate sentence amounted to thirty-three years with twenty-five years of parole ineligibility. Defendant appeals. We affirm the judgment of conviction but remand for re-consideration of the sentence in compliance with State v. Natale (Natale II), 184 N.J. 458, 466 (2005), for a determination of whether a lesser sentence would be imposed in the absence of the presumptive term.

We recite a significant portion of the underlying facts as set forth in the unpublished appellate opinion issued in State v. Fernandez, No. A-2858-03T42858-03T4 (App. Div. February 9, 2006) (slip op. at 5-8).

On June 6, 2000, M.M., a fifty-six year old diabetic woman, left her home around 11:15 a.m. to go to the corner store. After reaching the store and discovering that the government benefit card she used to purchase food had a zero balance, she started to walk home. As she was walking, [Fernandez and defendant] came up behind her, hit her, and pressed what she believed was a gun against her. [They] pushed her into a building and up two flights of stairs into a rooming house, while they continued to press an object she believed was a gun against her and struck her on the head and back. [Fernandez and defendant] then led her into a small room which they unlocked using a spoon.

Once in the room, [Fernandez] told M.M. that she would have to perform oral sex on him. She asked that he use a condom and he left the room. M.M. then called out the window for the police, but [Fernandez and defendant] returned, hit her, and told her to "shut up." [Fernandez] then told M.M. to remove her clothing and forced her to perform a variety of sex acts while [defendant] watched. When he was finished, [Fernandez] took her key chain from around her neck and her earrings, and he broke her glasses so that she could not see him. [Defendant demanded that M.M. turn over her gold earrings and kicked her in the legs until she relinquished them.] [Fernandez and defendant] asked M.M. what items she had in her apartment and then departed, leaving her in the room alone.

M.M. then went out of the room where she found Sanabria, who was holding a stick. According to M.M., she asked Sanabria why these men were treating her this way, and he said that "they did that to everybody that they took there." Sanabria allowed her to look for her glasses, which [Fernandez] had tossed down a stairwell, but he did not allow her to leave. When [Fernandez and defendant] returned about an hour later, M.M. ran back into the small room and shut the door. The two men came back into the room and began insulting her and disparaging the belongings they had found in her apartment. [Defendant] then began to hit M.M. with a stick while [Fernandez] started to pull her clothes off again. Although Sanabria entered the room and told the two to stop, they did not.

[Fernandez and defendant] told Sanabria to bring in a bottle and cream and asked M.M. whether she preferred the bottle or the stick to be put inside of her vagina. When she chose the bottle, [Fernandez] forced her to put the cream on the bottle and hold it while he kicked it into her vagina. Afterward, [defendant] thrust the stick inside of M.M.'s vagina and twisted it.

[Fernandez] next forced M.M. to again perform oral sex on him, this time without a condom, and he told [defendant] to have oral sex with M.M., which he did. [Fernandez] then forced M.M. to have anal sex with him causing her so much pain that she defecated on herself. [Defendant] then hit her with a stick and the two men threatened to kill her if she told the police about what had happened. They then told M.M. to do everything Sanabria said to do and left the room.

M.M. dressed herself and asked Sanabria to let her go, but he refused. In an effort to persuade him, she offered to have sex with him in exchange for her escape. The details of the acts that Sanabria forced her to perform are not germane to the issues on appeal. While it was happening, however, a friend of Sanabria's, Dan Nazario, whistled to him from the street. Sanabria stopped and spoke with Nazario briefly from the window. After commenting to M.M. about how bruised her face was, Sanabria eventually let her go and she ran home.

When M.M. arrived at her apartment, she found that it had been ransacked and that a ring, a television remote control, a Walkman, and $28 were missing. A neighbor called the police for her. They described her apartment as being in disarray. M.M. showed the police where [Fernandez] had taken her. Thereafter, an ambulance took her to the hospital, where she was treated for an eye injury, a cut on her mouth, two broken teeth, injuries to her legs and back, and vaginal pain. After leaving the hospital, M.M. spoke to the police about [Fernandez and defendant], but she did not mention Sanabria until two months later because he had never hit her and he had allowed her to leave. She identified [Fernandez and defendant] at the police station through photographs.

Dan Nazario told the police that he saw [Fernandez and defendant] on the afternoon of the incident, that they looked "sweaty," and that [defendant] was holding a stick. At the scene where M.M. had been held, the police found a beer bottle, two used condoms, a lotion bottle, a black leather coat with a BB gun inside the pocket, a broken eyeglass frame, two keys on a key chain, pubic hair, and what they believed were drops of blood.

On June 8, 2000, [Fernandez] turned himself in. He claimed that [defendant] had paid M.M. for sex, that he had only had oral sex with M.M., that she had demanded more money, and that he had ransacked her apartment to recover that money. [Fernandez's] statements were read to the jury during the trial.

Defendant also gave a statement to the police in which he indicated that he paid "the lady" fifteen dollars for sexual services and that when she refused and returned the money he "smacked her." He said that the lady gave Sanabria oral sex and admitted having a long black plastic stick sometime later while walking along Elm Street.

M.M. still suffers from vaginal bleeding and lives in fear, frightened to leave her apartment. She denied taking money to have sex with defendant and his co-defendants. Photographs of M.M.'s injuries were introduced showing black and blue portions of her body, a chipped tooth, and lacerations to her right ear and inside her mouth. Defendant did not testify or offer any witnesses.

On appeal, defendant raises the following contentions:

POINT ONE

DEFENDANT WAS NOT FURNISHED AN EFFECTIVE DEFENSE.

POINT TWO

THERE WAS INSUFFICIENT CREDIBLE EVIDENCE BY WHICH THE JURY COULD FIND DEFENDANT, SELLES, GUILTY BEYOND A REASONABLE DOUBT.

POINT THREE

DEFENDANT'S SENTENCE WAS EXCESSIVE.

Defendant claims that he received ineffective assistance of counsel because his attorney failed to (1) seek out D.H. who lived in the same building as M.M. and would testify that the building was frequented by prostitutes; (2) verify M.M.'s testimony concerning her use of food stamps prior to her being abducted; (3) investigate the medications she was taking and whether they affected her memory; and (4) subpoena M.M.'s medical records and retain and have them reviewed by a medical expert. Allegations respecting counsel's actions or inactions that involve assertions and evidence beyond the trial record are normally best addressed on an application for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992); State v. Ospina, 239 N.J. Super. 645, 656 (App. Div.), certif. denied, 127 N.J. 321 (1990). We, therefore, forego any further discussion of defendant's assertions that trial counsel was deficient.

After careful review of the record, we are satisfied that defendant's Point Two argument that there was insufficient credible evidence to convict lacks merit sufficient to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Finally, in his Point Three argument defendant contends that the sentence imposed was excessive because several of the terms imposed did not comport with Natale II because they were above the former presumptive term. The judge found aggravating factors, N.J.S.A. 2C:44-1(a)(1), (3), (6) and (9) and no mitigating factors. The State concedes that, under the circumstances, defendant is entitled to a remand under Natale II because the terms imposed, twenty-five years for first-degree kidnapping, eight years for second-degree burglary, eight years for second-degree aggravated assault, eighteen months for fourth-degree aggravated assault, five years for third-degree possession of a weapon, and eight years for second-degree conspiracy, all exceed the former presumptive terms. Consequently, we are constrained, in light of Natale II, to remand for consideration whether the judge would impose a lesser sentence in the absence of the presumptive term.

Remand for resentencing. In all other respects, the judgment of conviction is affirmed.

 

Co-defendant Sanabria was tried separately.

The counts that were dismissed were the four counts of third-degree aggravated criminal sexual contact (Counts Seven, Eight, Nine, and Ten), fourth-degree criminal sexual contact (Count Eleven), third-degree unlawful possession of a weapon (Count Eighteen), and third-degree terroristic threat to kill (Count Nineteen).

(continued)

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A-1577-02T5

April 13, 2007