STATE OF NEW JERSEY v. OSEAS S. PONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2437-04T42437-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSEAS S. PONS,

Defendant-Appellant.

 

Submitted September 17, 2007 - Decided

Before Judges Lintner, Parrillo and Sabatino.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

99-11-1594.

Yvonne Smith Segars, Public Defender, attorney for appellant (Sylvia Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

A Union County Grand Jury returned Indictment No. 99-11-1594 arising from three separate criminal incidents occurring on August 24, 28, and 30, 1998. Defendant, Oseas Pons, was charged with seventeen counts, including three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(5) (Counts One, Four, and Ten), three counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Counts Two, Six, and Twelve), three counts of first-degree kidnapping, N.J.S.A. 2C:13-1b (Counts Three, Seven, and Thirteen), two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4) (Counts Five and Eleven), two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Counts Eight and Fourteen), two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Counts Nine and Fifteen), one count of first-degree robbery, N.J.S.A. 2C:15-1 (Count Sixteen), and one count of second-degree robbery, N.J.S.A. 2C:15-1 (Count Seventeen). Emilio Giron and Eric Quintanilla were named as codefendants in the indictment.

Following a six-day jury trial, defendant was found guilty of Counts One through Thirteen, and was acquitted on Counts Fourteen through Seventeen. Defendant was sentenced to an aggregate term of thirty-five years of incarceration with an eighty-five percent parole disqualifier (29.75 years) pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals and we affirm.

Between 1:00 and 2:00 a.m. on August 24, 1998, D.S., thirty-two years old at the time of trial, was on her way home after a day of "hustling" on the streets of Plainfield, when two Hispanic males in a black car pulled up and asked if she knew where they could get high. There was a white dog in the vehicle. D.S. indicated she knew of a house the men could use and offered to take them there. D.S. got into the car. When they drove past the house, D.S. asked why and then requested that she be let out of the car. The smaller of the two men, later identified as Quintanilla, turned to D.S. and said, "shut up, bitch." D.S. grabbed the steering wheel in an unsuccessful attempt to cause an accident to draw attention to the vehicle. The car was driven to a dark and secluded area.

D.S. offered the men twenty-two dollars to let her go but the men just spoke to each other in Spanish. After pulling off D.S.'s clothing, the men forced her to lie in the passenger-side seat with her face down. The larger of the two men, later identified by D.S. as defendant, held her down, "choking [her]," as the smaller man vaginally penetrated her. The men then switched positions and defendant vaginally penetrated her. The larger man attempted to force D.S. to perform fellatio, however, she was able to turn her head. The attack lasted for approximately one hour during which time each man had intercourse with D.S. two times. The first time, they used condoms, while the second time at least one ejaculated in her.

D.S. eventually escaped by running from the car, nude, to some nearby homes where she began banging on doors and windows yelling "rape." The men tried to grab her, but she ran across the street and continued to bang on doors and yell "rape."

Officer Richard Parello of the Plainfield Police Department was on patrol and responded to Leland Avenue where he observed a nude, hysterical, and crying woman standing in front of 78 Leland Avenue. D.S. told Parello that she had just been vaginally and anally raped by two Hispanic males in a black sports car with tinted windows. Parello transported D.S. to a hospital where a sexual assault evidence collection kit was completed, the results of which were turned over to the Plainfield Police Department. D.S. signed herself into the psychiatric unit of the hospital and remained there for three weeks following the attack. On September 22, 1998, D.S. identified defendant and Quintanilla as her assailants in separate photo arrays. She also made an in-court identification of defendant as one of her attackers.

Around 1:00 a.m. on August 28, 1998, S.J., a twenty-eight year old woman, walked to the corner of Plainfield Avenue and West Front Street in Plainfield to use a phone booth located near a gas station. When S.J. reached the phone booth, a white two-door truck with tinted windows pulled into the gas station. A man got out of the truck and asked S.J. where Grant Avenue was located. S.J. pointed in the direction of Grant Avenue and then turned to place money in the payphone. The man then put a box-cutter to her neck and told her to get into the truck. As she walked to the truck, S.J. observed three other men inside the truck. S.J. sat in the middle of the back seat and, as the truck drove off, she began asking the men questions about themselves in an attempt to show she was not scared. The men gave their names as Mario, Jose, Joseph, and Edward and indicated they were from Mexico.

The truck traveled on Leland Avenue toward the east end of Plainfield, eventually stopping for one of the occupants to get out and urinate on a side street. At that point, one of the men asked S.J. if he could pay her for sex; she responded that she did not sell her body for sex. That man got back in and then one of the men told S.J. to perform fellatio on one of the other men while he had intercourse with her. The men started taking her clothing off and, with the box-cutter to her neck, the men pulled off her pants, shirt, and bra. In the backseat of the truck, the men forced her to perform oral sex on them while she was being vaginally and anally penetrated from behind by other men in the group. All four anally penetrated her, and three of them vaginally penetrated her. The men did not wear condoms.

When the men were finished attacking S.J., they returned her clothing to her. They eventually stopped the truck and one of the men took S.J. out of the truck, covered her eyes, walked her down the street, left her, and returned to the truck. The attack lasted approximately two hours. S.J. walked for approximately a half hour to the nearest phone booth and called the police. The police arrived and S.J. was transported to the hospital where a sexual assault evidence collection kit was completed.

S.J. told police that the attackers used the names Mario, Jose, Joseph, and Edward. She described Mario as 5'6" tall, having a beer-belly and a small curly afro, weighing approximately two-hundred twenty pounds, and in his early 30s. S.J. described Joseph as fat, 5'8" or taller, with curly hair, and in his late-20s to early-30s. She described Jose as approximately 5'7" tall, slim, with a missing tooth on the left side of his mouth, and in his late-20s. She described Edward as short, with long straight hair and a mustache, and being 25 years old.

S.J. believed Edward and Jose were the assailants that held box-cutters during the attack. On September 21, 1998, after viewing photo arrays, S.J. identified defendant as the assailant that held the box cutter to her throat at the payphone, anally penetrated her, and took her purse. She identified codefendant Giron as the man who demanded that she perform oral sex on all of the men. S.J. could not make an in-court identification of defendant.

On August 30, 1998, at 3:00 a.m., J.B. was walking along East Front Street in Plainfield when a white truck pulled up next to her. J.B. believed that she was probably under the influence of drugs and alcohol on the morning of August 30. She also believed she knew one of the men in the truck, whom she identified as Mario, possibly from going to school with him. J.B. asked Mario for a cigarette and a ride. Mario said he did not have a cigarette, but that he was going to the gas station to get some. Mario offered J.B. a ride and she got in the truck. At that point, J.B. realized there were a total of five Hispanic men in the truck.

On the way to the gas station, one of the men put a knife to J.B.'s neck, made her lie on the floor in the back of the vehicle, and said "don't move or say nothing or I will kill you." The truck traveled to a Shell gas station and stopped and one of the occupants briefly exited the vehicle. The Shell security camera captured a man, later identified by police as codefendant Giron, going into the gas station, and purchasing condoms at 2:30 a.m. on August 30. Leaving the gas station, the truck traveled down Leland Avenue for approximately five to seven minutes and then came to a stop.

Inside the truck, the men started feeling J.B. and wanted her to have intercourse and oral sex with them. The men told J.B. to take her clothing off in the back seat of the truck and she complied because they threatened to kill her. All five of the men forced her to have intercourse with them and some forced her to perform oral sex. Some of the men used condoms during the attack. A knife was held to J.B.'s neck during a portion of the attack, which lasted approximately one hour.

When the men were finished with J.B., they left her on the street wearing only a t-shirt. She left a bag containing a phone, camera, and video game in the truck. She found her shorts on the street, walked back to the Shell station and called the police. The police found J.B. at the payphone, distraught and holding a stick for protection. They transported her to the hospital where a sexual assault evidence collection kit was completed.

On September 15, 1998, J.B. saw the white truck she was raped in driving on the street in Plainfield. She wrote down the license plate number and gave it to the police. The police investigation led them to codefendant Giron, who had previously been involved in a traffic infraction with a white Chevy Blazer. Police eventually arrested Giron after J.B. identified him in a photo array as one of her attackers. At Giron's residence, the police found the white Chevy Blazer with the license number provided by J.B., which was later identified by her as the truck used in the assault.

J.B. described Mario as a large man weighing approximately two-hundred thirty pounds with dark hair and a mustache. She described the man that held the knife to her throat as in his late 40s or early 50s, and a third man as being large like Mario. She was unable to identify defendant in court as one of her assailants.

Quintanilla was arrested and told police, with regard to the attack on S.J., that Giron, Giron's brother Carlos, and defendant were the other men involved in the attack. He told police that Giron, Carlos, a man named Luis, and defendant were involved in the attack on J.B. Quintanilla identified the vehicle used in the attacks as a white Chevy Blazer and identified Giron and defendant in police photo arrays.

On October 2, 1998, police obtained an arrest warrant for defendant. At defendant's residence, the police found a black vehicle matching the description of the one used in the attack on D.S. and a dog matching the description provided by D.S.

Quintanilla, who pled to several counts relating to the incidents with S.J. and J.B., testified for the State. After nightclubbing, he, Giron, Carlos, and defendant saw S.J. near a gas station and Giron "called to her . . . and he asked her about her price. And she told him $15 for each one." The woman was concerned about the number of men in the truck but Giron assured her nobody would get hurt.

According to Quintanilla, Giron drove "to another place" and they "had sex with her." Quintanilla and Carlos had knives, which they showed to the woman. Quintanilla testified that, as far as he could recall, everybody in the truck had oral sex with the woman. Quintanilla admitted he had vaginal and anal sex with the woman. However, he did not see whether the others did. At one point, he put the knife on the woman's back to scare her while she was having sex with one of the other men. While Quintanilla and Carlos were in the back seat, the woman performed oral sex on him while Carlos penetrated her from behind. Then, according to Quintanilla, he and Carlos changed seats with defendant and Giron who got into the back seat with the woman while he and Carlos went to the front seat. He maintained, however, that he did not know what happened in the back seat to the woman after he moved to the front seat, even though he remained in the truck.

Testifying about the sexual assault on J.B., Quintanilla described that he, Giron, Carlos, defendant, and a man named Luis picked J.B. up on the streets of Plainfield after attending a nightclub. Prior to the encounter, the men had discussed picking a woman up to have sex. The woman got in the back seat of the truck after Giron talked to her. Quintanilla showed her his weapon and told her not to do anything. Quintanilla believed that all five men had sex with the woman. The woman was crying and scared. One of the men took a white bag from the woman that contained a camera, a phone, and a video game.

On cross-examination, however, Quintanilla indicated that he did not see defendant perform sexual acts with either woman. He only saw Carlos have sex with the women during the assaults. Toward the end of its proofs, the State read into evidence a portion of Quintanilla's plea transcript in which he testified that defendant had oral sex and vaginal intercourse with J.B. on August 30, 1998. All three victims had criminal records.

On appeal, defendant raises the following points:

POINT ONE

THE JOINDER OF COUNTS INVOLVING THREE SEPARATE OFFENSES WAS EXTREMELY PREJUDICIAL TO THE DEFENDANT AND DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE TO SEEK A SEVERANCE. THE PREJUDICE WAS EXACERBATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY TO CONSIDER EACH COUNT INDIVIDUALLY. (Not Raised Below).

POINT TWO

THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY FAILING TO PROVIDE THE JURY WITH AN ADEQUATE INSTRUCTION ON ACCOMPLICE LIABILITY IN RELATION TO THE KIDNAPPING CHARGES, THEREBY FORECLOSING ANY POSSIBILITY THAT DEFENDANT COULD BE CONVICTED OF THE LESSER-INCLUDED OFFENSE OF CRIMINAL RESTRAINT. (Not Raised Below).

POINT THREE

BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF AGGRAVATED SEXUAL ASSAULT, THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL ON THESE CHARGES; MOREOVER, THE VERDICT ON THESE CHARGES WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Partially Raised Below).

A. D.S.

B. S.J. and J.B.

POINT FOUR

DEFENDANT'S SENTENCE IS UNFAIRLY DISPROPORTIONATE TO THAT WHICH HIS CO-DEFENDANT, WHO HAD ADDITIONAL CHARGES UNDER THE SAME INDICTMENT, RECEIVED. THEREFORE, HE IS ENTITLED TO A LESSER SENTENCE OR AT LEAST TO A REMAND FOR A HEARING BASED UPON DISPARITY OF SENTENCE.

Defendant first asserts that he was denied effective assistance of counsel because of his counsel's failure to move to sever the three separate offenses for trial. He maintains that "there could be no legitimate strategy for failing to so move." Concomitant with his assertion that he received ineffective assistance of counsel, defendant asserts, for the first time on appeal, that the judge's jury instructions failed to follow the model charge on multiple offenses and thus represented plain error.

Ordinarily, allegations respecting counsel's actions that involve assertions and evidence beyond the trial record are 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). Certainly, that would normally be so when it comes to questions concerning defense strategy. However, we address the issue of effectiveness of counsel because we are convinced, following a review of the entire record, that the separate offenses were properly joined in one trial. We are equally convinced that defendant would not have met his burden to establish, by a preponderance of the evidence, that joinder was prejudicial, or that the jury instructions, as given, amounted to plain error.

We begin our analysis by reciting the basic underlying principles. Our procedural rules provide that two or more offenses may be charged in the same indictment if, among other things, the offenses charged "are of the same or similar character." R. 3:7-6; R. 3:15-1(a). A judge may sever joined charges "[i]f for any . . . reason it appears that a defendant or the State [may otherwise be] prejudiced." R. 3:15-2(b). Because the offenses charged in the indictment were of a "similar character" and thus satisfied the requisites of the Rule, they were properly joined. The question then is whether the judge would have granted a motion by defendant for a severance, if defendant's counsel had so moved, based on prejudicial joinder.

Disposition of a motion for a severance pursuant to R. 3:15-2 is addressed to the sound discretion of the trial court. State v. Laws, 50 N.J. 159, 175 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); State v. Manney, 26 N.J. 362, 365 (1958); State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div.), certif. denied, 101 N.J. 277 (1985); State v. Whipple, 156 N.J. Super. 46, 51 (App. Div. 1978). Denial of such a motion will "not be reversed in the absence of a clear showing of [a] mistaken exercise of discretion." State v. Rosenberg, 37 N.J. Super. 197, 202 (App. Div. 1955), certif. denied, 20 N.J. 303 (1956).

Although separate and distinctive crimes that are the same or similar in character may be joined for the purpose of trial in the interests of judicial economy, where there exists a real "possibility of prejudice to [a] defendant, a trial severance of the offenses should be granted." State v. Reldan, 167 N.J. Super. 595, 597 (Law Div. 1979), rev'd on other grounds, 185 N.J. Super. 494 (App. Div. 1982). A key factor in determining whether prejudice exists from joinder of multiple offenses "is whether the evidence of [those] other acts would be admissible in separate trials under [N.J.R.E. 404(b)]." State v. Moore, 113 N.J. 239, 274 (1988) (citing State v. Kent, 173 N.J. Super. 215, 220 (App. Div. 1980); State v. Maddox, 153 N.J. Super. 201, 207 (App. Div. 1977)); see also State v. Pitts, 116 N.J. 580, 601-02 (1989). So posited, we focus our inquiry upon the issue whether the alleged offenses against the three victims would be admissible as evidence in a trial involving the alleged offenses against each other.

When considering a motion to sever offenses from a single indictment, the court engages in a review of the evidence and determines whether the evidence from the several trials would be admissible in each trial if tried separately. Pitts, supra, 116 N.J. at 601-02. If the evidence of the several offenses would have been admissible in each separate trial, severance will generally be denied as the defendant would not suffer additional prejudice by virtue of a joint trial. State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (citing State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)).

N.J.R.E. 404(b) provides:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

N.J.R.E. 404(b) is a "rule[] of exclusion" rather than one of "inclusion." State v. Nance, 148 N.J. 376, 386 (1997); see also Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988). The basic principle underlying the rule is that "courts should exclude evidence of other crimes, civil wrongs, or acts . . . when such evidence is offered solely to establish the forbidden inference of propensity or predisposition." Nance, supra, 148 N.J. at 386; see State v. Stevens, 115 N.J. 289, 299 (1989); State v. Kociolek, 23 N.J. 400, 418-20 (1957).

However, N.J.R.E. 404(b) does not bar other crime or civil wrong evidence in all instances. By its clear terms, the Rule permits admission of such evidence when relevant to prove some fact genuinely in issue. State v. Marrero, 148 N.J. 469, 482 (1997); State v. Oliver, 133 N.J. 141, 151-54 (1993); Stevens, supra, 115 N.J. at 300. Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue especially where the prosecution's access to significant information is limited. See Huddleston, supra, 485 U.S. at 685, 108 S. Ct. at 1499, 99 L. Ed. 2d at 780. Where such evidence tends to make the existence of a material fact "reasonably likely," it should be admitted if its probative worth outweighs its potential for causing confusion, undue consumption of time or improper prejudice. Marrero, supra, 148 N.J. at 482; see N.J.R.E. 403.

Our Supreme Court has adopted a four-part test in determining the admissibility of other crime or civil wrong evidence. State v. Cofield, 127 N.J. 328, 338 (1992). Specifically, the evidence must be: (1) admissible as relevant to a material issue; (2) similar in kind and reasonably close in time to the act alleged; (3) clear and convincing; and (4) of sufficient probative value not to be outweighed by its apparent prejudice. Ibid.

Defendant's defense strategy regarding the attacks on the second and third victims was that, although present, he did not partake in the attack and that the victims only remembered him because he was present. Had separate trials been held, evidence of the first attack on D.S. by Quintanilla and defendant would have been admissible against defendant at a trial on the two subsequent attacks to show defendant intended to go out with a group late at night to prowl the streets and pick up a woman for the purpose of sexual gratification.

Defendant's defense respecting the first attack was predicated on the argument that D.S., who had been under the influence of drugs and had a criminal record, misidentified him. "[I]n order to be admissible on the issue of identity, the other crimes must bear peculiar, unique, or bizarre similarities." State v. Fortin, 162 N.J. 517, 530 (2000). Although a different vehicle was used in the subsequent attacks, which involved more individuals, the similarity of the attacks, the timing, location, type of victim, and approach (by vehicle) were so similar in kind that they would have been admitted into evidence as other crimes evidence, had the cases been tried separately.

The offenses committed were reasonably proximate in time and there was clear and convincing evidence that the attacks took place to establish "other crimes." Plainly, the other-crime evidence had sufficient probative value not to be outweighed by its potential for undue prejudice. We conclude that the foundational requisites for admission of the evidence were satisfied. Defendant would not have met his burden to establish, by a preponderance of the evidence, that the joinder was prejudicial. Moore, supra, 113 N.J. at 274.

Once the proponent has demonstrated the admissibility of other crimes or civil wrongs evidence and the court has engaged in the balancing process we have described, the jury must be instructed on the limited use of the proofs actually presented. In the context of criminal trials, our Supreme Court has explained that because "the inherently prejudicial nature of such evidence casts doubt on a jury's ability to follow even the most precise limiting instruction," Stevens, supra, 115 N.J. at 309, the instructions should be formulated carefully to enable the jury to comprehend the fine distinction to which it is required to adhere. Cofield, supra, 127 N.J. at 341. The trial court "should state specifically the purposes for which the evidence may be considered and, to the extent necessary for the jury's understanding, the issues on which such evidence is not to be considered." Stevens, supra, 115 N.J. at 309.

Contrary to defendant's assertion, the judge did follow the Model Jury Charge Criminal on Multiple Charges. The judge charged:

Now, there are many charges in the indictment. They are separate offenses by separate counts in the indictment. Your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence which is relevant and material to the particular charge based on the law as the court has given it to you.

See Model Jury Charge (Criminal), "Criminal Final Charge, Multiple Charges" (2003). Although the appropriate multiple charge instruction to assess each charge separately was given, see, e.g., State v. Coleman, 46 N.J. 16, 24 (1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966), the judge did not specifically tell the jury that it could not consider the other crimes evidence to determine that the defendant was predisposed to commit the crimes charged. Nor did the instructions narrowly focus the jury's attention on the specific use of the other crimes evidence.

We stress, however, that no limiting instruction was requested. "It is fundamental in our practice that a claim of error which could have been but was not raised at trial will not be dealt with as would a timely challenge. The reasons are several." State v. Macon, 57 N.J. 325, 333 (1971). It is certainly possible that in the context of the entire trial the failure to object signifies that the error belatedly claimed was actually of no moment. Moreover, "to rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal." Ibid. Likewise, "we do not deem it a palliative to explore . . . the thoughts of trial counsel or his pertinent conversations with his now unhappy client. . . . [S]uch inquiries [tend to] demean the attorney-client relationship with no compensating gain." Ibid.

It is certainly arguable that defendant here had little to gain and much to lose by requesting a limiting instruction. The charge given by the judge clearly conveyed the principle that the jury was prohibited from considering the cumulative impact of the evidence of all the offenses in determining whether a particular charge had been proven. That was the thrust of the instruction to consider each charge separately.

Perhaps it would have been more preferable to instruct the jury to consider the other crimes evidence dealing with the two later attacks in determining whether defendant was identified by D.S. in the first and that they could consider the evidence of the first attack to determine whether defendant intended to participate in the second and third attacks. Even with the aid of 20-20 afterthought, it is doubtful that such an instruction would have aided defendant's case, particularly when considered in the light of the charge actually given, which conveyed the message that defendant is entitled to have each count considered separately by the evidence relevant and material to that particular charge. In these circumstances, we cannot fairly say that the failure to articulate the limited purpose for the use of other crimes evidence amounted to error capable of producing an unjust result. R. 2:10-2. Nor can we fairly say that the failure to request a limiting instruction was anything but a well-reasoned strategic determination.

Accordingly, we are convinced that had defendant moved for a severance the motion would have been denied. We are equally convinced that the evidence of guilt was so overwhelming that had the three offenses been tried separately, there is no reasonable probability that the outcome would have been different. Thus, we reject defendant's contention that he received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

We next consider defendant's contention that the judge committed plain error by not sua sponte charging the jury on the lesser-included offense of criminal restraint, N.J.S.A. 2C:13-2, as a lesser-included offense of kidnapping. "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial judge need not "'scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty.'" State v. Brent, 137 N.J. 107, 118 (1994) (quoting State v. Sloane, 111 N.J. 293, 302 (1988)); see Choice, supra, 98 N.J. at 299 (stating the trial court does not "have the obligation on its own meticulously to sift through the entire record" to find appropriate charges).

By contrast, where a defendant requests a charge on a lesser offense, the trial judge must focus on the facts in evidence "'to ensure that there is a rational basis for a jury to reject the greater charge and convict of the lesser'" charge. Brent, supra, 137 N.J. at 116 (quoting Cannel, New Jersey Criminal Code Annotated, comment 13 on N.J.S.A. 2C:1-8e (1993)). Moreover, where the evidence reasonably supports a defendant's request for a jury charge on a lesser-included offense, a trial court's failure to give it is reversible error. Ibid.

Non-ransom kidnapping is defined, in pertinent part, as follows:

A person is guilty of kidnapping if he unlawfully removes another . . . a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on or to terrorize the victim or another;

. . . .

d. "Unlawful" removal or confinement. A removal or confinement is unlawful within the meaning of this section and of sections

2C:13-2 and 2C:13-3, if it is accomplished by force, threat or deception . . . .

[N.J.S.A. 2C:13-1.]

Kidnapping is a first-degree offense unless the actor "releases the victim unharmed and in a safe place prior to apprehension." A person is guilty of criminal restraint, a third-degree offense, if he "knowingly . . . [r]estrains another unlawfully in circumstance exposing the other to risk of serious bodily injury." N.J.S.A. 2C:13-2. Ordinarily, criminal restraint is a lesser-included offense of kidnapping by asportation to facilitate the commission of an aggravated sexual assault "[b]ecause it can be 'established by proof of the same or less than all the facts required to establish the commission of the offense charged.'" Brent, supra, 137 N.J. at 122 (quoting N.J.S.A. 2C:1-8d(1)). However, to require a charge on the lesser-included offense a "court must conclude not only that the offense is included in the charged offense but also that the evidence at trial presents a rational basis for the jury to acquit the defendant of the greater offense and convict him or her of the lesser." Id. at 123. Thus, as pointed out in Brent, for a jury to acquit defendant of kidnapping and convict him of criminal restraint, it would have to conclude that defendant either did not remove the victim "a substantial distance" nor "with the purpose of facilitating commission of [a] sexual assault." Ibid. "A substantial distance is not measured in feet or yards," rather it relates to sufficient criminal significance in that it "is more than incidental to the underlying crime and . . . substantially increases the risk of harm to the victim." State v. Masino, 94 N.J. 436, 447 (1983). Thus, "'a person who retrains another for an insubstantial period of time or in a public place may be guilty of [criminal] restraint.'" Brent, supra, 137 N.J. at 121-22 (quoting 212.2 of the Model Penal Code).

Here, the evidence fails to present a rational basis to acquit defendant of kidnapping and convict him of criminal restraint in both areas. First, there is no evidence that the victims were taken in the vehicles for any other purpose than to commit the crime of sexual assault. Id. at 123. Second, there is no evidence to establish an insubstantial removal. The only evidence was that the victims were removed to vehicles away from public view for the purpose of facilitating multiple sexual assaults. Accordingly, the evidence provided no rational basis for charging the lesser-included offense of criminal restraint. See id. at 123-26.

Defendant's contentions that the trial judge committed plain error by failing to provide an adequate instruction on accomplice liability as it related to the kidnapping charges and erred in denying his motion for acquittal, because the evidence lacked the requisite sufficiency to prove beyond a reasonable doubt that defendant was guilty of aggravated sexual assault, are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Our careful review of the instructions convinces us that the judge correctly charged and amply explained accomplice liability as it related to the kidnapping charges. Additionally, our review of the entire record satisfies us that, when viewed in a light most favorable to the State, the evidence clearly established defendant's guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967).

Lastly, defendant contends that his sentence was disparate when compared with the sentence received by Quintanilla. Quintanilla pled guilty to eight counts related to the sexual assaults on S.J. and J.B. and he agreed to testify truthfully for the State in its case against Giron, and he received a fourteen-year sentence. Considering Quintanilla's sentence as it related to the State's argument that defendant should be sentenced to three consecutive terms or sixty years, the judge said:

That the overall outer limit of the cumulative of the consecutive sentences for multiple offenses shall not exceed the sum of the longest term. In this case, the longest term is 30 years so the court should not impose more than 60 years.

. . . .

The Court notes that, first the codefendant Quintanilla, did not go to trial. He pled guilty. He pled guilty to two assaults on [S.J. and J.B.] He did not plead guilty to the assault on [D.S.] D.S. is the woman who was left naked to struggle looking for safety. S.J. also gave a statement to the police. [Quintanilla] was instrumental in the investigation and the identification of the other defendants.

Further . . . Quintanilla also testified against [defendant], which greatly assisted the prosecution in its case. Therefore, there is a difference which is [remarkable]. However, the court will take into consideration the issue concerning consecutive sentences and will not give two consecutive sentences but impose one consecutive sentence.

. . . .

The Court has not given a . . . second consecutive sentence in light of the factors set forth in Roach. The Court believes that due to the heinous nature and the absolute depravity of this crime, the defendant should have received upwards near to 60 years in state's prison. But due to the directive that our Supreme Court has said, that there cannot be such wide disparity -- and the Court has factored in factors that [Quintanilla] is different, as I previously explained -- but nonetheless, [Quintanilla] got 14 years in state's prison.

The Court notes that [Quintanilla] did not plead guilty to the assault on [D.S.] and cooperated. And but for [Quintanilla], the identity of the other defendants would not be known. Therefore the sentence is 35 years in state's prison, for which the defendant must serve, without parole, 29.75 years . . . .

State v. Roach, 146 N.J. 208, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996), sets forth the process a trial court should engage in when faced with similar co-defendants:

In such circumstances, we hold that the sentencing court must exercise a broader discretion to obviate excessive disparity. The trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity . . . .

[W]e recognize that some disparity in sentencing is inevitable in the administration of criminal justice. Realistically, sentencing cannot be monolithic when individual judges, no matter how competent and conscientious, impose sentences on individual defendants arising from the commission of separate crimes. If, however, it is feasible to avoid or reduce disparity in circumstances such as presented in this case through the trial and/or sentencing of similar defendants by the same judge, that should be undertaken. If those procedural avenues are not available, then sentencing judges should take into account and give substantive weight to the sentences imposed on similar co-defendants. The overarching goals of uniformity demand that

reasonable measures be undertaken to achieve that end.

[Id. at 233-34 (citation omitted).]

In Roach, both defendants were tried and convicted of the same offenses.

Here, the judge found that defendant and Quintanilla's circumstances were "different" and, thus, not substantially similar. He nevertheless applied Roach by not imposing an additional consecutive term to take into account the multiple offenses and victims. On appeal, defendant asserts that the judge penalized him for exercising his right to trial because he placed great emphasis on Quintanilla's cooperation. He also maintains that Quintanilla was substantially similar because at defendant's trial he admitted assaulting all three victims and wielding a knife. We disagree.

The trial judge used appropriate discretion in comparing the circumstances between defendant and Quintanilla. Quintanilla's circumstances were indeed different. He pled guilty to two of the assaults while defendant was found guilty of all three. Quintanilla's testimony was instrumental in defendant's conviction. His plea agreement only required him to testify in Giron's case. These differences were correctly cited by the judge who nevertheless applied the teaching of Roach to significantly reduce defendant's term exposure. Under these circumstances, we see no reason to intervene.

Affirmed.

Giron was named in Counts Four through Seventeen.

Quintanilla was named in Counts One through Seventeen and with four additional counts (two counts of assault, N.J.S.A. 2C:12-1, one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and one count of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d).

After appropriate mergers, the following terms of imprisonment were imposed. An eighteen-year term on Count Seven and a consecutive seventeen-year term on Count Thirteen. Concurrent terms of twelve years on Count One, sixteen years on Count Three, fourteen years on Count Four, thirteen years on Count Five, thirteen years on Count Ten, and twelve years on Count Eleven were imposed.

D.S. initially gave police and the hospital an alias, Natasha Smith, because she was scared that the men that attacked her would find her.

DNA testing was later performed by Casey DuPont of Orchid Cellmark, a private DNA testing company located in Texas. Defendant's DNA was excluded from the vaginal swab. However, it could not be excluded as a contributor to the DNA mixture found on the rectal swab taken from D.S. because the samples from the sexual assault evidence collection kit were mixtures of DNA from more than one person.

On cross-examination, D.S. indicated that, since the age of thirteen, she has suffered from mental illnesses, including "major depression and [wanting to commit] suicide."

Codefendant Quintanilla testified that the men used fake names around the women, and that "Mario" was in fact codefendant Giron.

In September 2000, Quintanilla pled guilty to eight of the counts he was charged with in relation to the sexual assaults on S.J. and J.B. Quintanilla agreed to testify against Giron as part of his plea. In return for his plea, the remaining charges against him were dismissed and he received a fourteen-year sentence with a NERA parole disqualifier.

D.S. admitted to having two convictions, both for third-degree possession of a controlled dangerous substance; S.J. admitted to having been convicted of third-degree conspiracy to distribute CDS and third-degree attempted theft by deception; and J.B. admitted to being convicted of third-degree possession of CDS, third-degree aggravated assault, and second-degree escape.

The trial court must undertake a different analysis depending upon whether the State or defendant requests a jury charge for a lesser-included offense. When it is the State's request, the existence of a lesser-included offense should be analyzed largely on the basis of elements in the indictment to make sure those elements are 'included' in the indictment so that the defendant has had fair notice of potential liability on the charge. Cannel, New Jersey Criminal Code Annotated, comment 13 on N.J.S.A. 2C:1-8e (2001-2002); State v. Sloane, 111 N.J. 293, 299 (1988); State v. Graham, 223 N.J. Super. 571, 577 (App. Div. 1988).

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A-2437-04T4

RECORD IMPOUNDED

October 3, 2007