STATE OF NEW JERSEY v. ROLANDO BETANCOURT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 2981-07T42981-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROLANDO BETANCOURT,

Defendant-Appellant.

________________________________

 

Submitted October 6, 2009 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 06-08-1277.

Yvonne Smith Segars, Public Defender,

attorney for appellant (M. Virginia

Barta, Designated Counsel, of counsel

and on the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (John R. Cascarano,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Rolando Betancourt appeals his conviction by a jury on charges of kidnapping and aggravated assault of his wife, and his sentence of forty years' imprisonment on the kidnapping charge. We reverse his conviction for kidnapping. We affirm on aggravated assault.

I.

Only two witnesses testified at trial, a Bayonne police officer and defendant's wife. She testified that on the morning of May 9, 2006, she asked defendant to do laundry. He said no and then spoke to his brother on the telephone about going out. She questioned him about refusing to do laundry and instead going out. She did not want to argue; so she started to leave their apartment. Defendant pulled her away from the door by her hair, told her she was not going anywhere, and threw her into their bedroom. He then pinned her onto the bed, sitting on top of her with his knees holding down her arms, and he hit her about twenty times with a closed fist. After the beating, she tried to get up but blacked out for a while.

When she regained some of her senses and tried again to get up, he told her not to get off the bed. She tried to get up anyway, and he jumped back on top of her and punched her in the nose, causing it to bleed. He then told her repeatedly to get in the corner of the room. She got up and kicked him, attempting to push him into a closet with her foot. He, in turn, prevented her from leaving the room by blocking the door.

Defendant then walked back toward the closet. She took the opportunity to get out of the room, got to a telephone, and called defendant's stepmother pleading for help. He pulled the telephone wire out of the jack and told her she would not leave their apartment alive because he was going to kill her. Defendant then went to put on his shoes. She plugged the phone in and dialed 911. After one ring, defendant pulled the wire out again, and again threatened that she would not walk out of there alive.

When defendant stepped away once again, she grabbed a towel and her purse and ran out of the apartment. An off-duty police officer helped her and directed an ambulance and the police to her a few blocks away from her apartment.

The Bayonne police officer testified that he was directed to an intersection where he saw the victim holding a towel to her bleeding nose. She was crying and had blood on her shirt. She had a bruise to her nose and one of her ears was swollen. She also had discoloration under her eyes. Ambulance personnel were attending to her injuries. He talked to her briefly at the scene and later took a statement from her after she was released from the hospital.

Investigating back in the apartment, the officer saw blood on the pillows, the bed, and a sheet found outside the building that matched the bedding in the apartment. Photographs were taken of the scene.

Meanwhile, the victim was treated in the emergency room of a hospital and released the same day. X-rays and a CAT scan revealed no broken bones or other internal injuries. She was told to rest and take aspirin. Photographs of her injured face were taken at the hospital and two days later at the police station and were admitted in evidence at trial. Also, the emergency room records were admitted in evidence by stipulation.

Defendant was arrested on the day of the incident. In July 2006, a Hudson County grand jury indicted defendant on four counts. Count one charged second-degree aggravated assault in that defendant "purposely did and attempted to cause serious bodily injury" to his wife, in violation of N.J.S.A. 2C:12-1b(1). Count two charged third-degree aggravated assault in that defendant "purposely did attempt to cause significant bodily injury" to her, in violation of N.J.S.A. 2C:12-1b(7). Count three charged first-degree kidnapping in that defendant "unlawfully did confine [his wife] for a substantial period with the purpose to inflict bodily injury on or to terrorize" her, in violation of N.J.S.A. 2C:13-1b. Count four charged third-degree terroristic threats in that defendant "did threaten to kill" his wife, in violation of N.J.S.A. 2C:12-3b.

Trial began with jury selection on Wednesday, March 14, 2007. Opening statements were on the morning of Thursday, March 15. After the two witnesses called by the State testified and exhibits were admitted in evidence, the State rested. Defense counsel moved for a judgment of acquittal on the kidnapping charge under Rule 3:18-1, arguing that the victim never testified about the time period during which she was confined in the apartment, and so, the State had insufficient evidence that her confinement was for a substantial period as required by the kidnapping statute, N.J.S.A. 2C:13-1b. The trial court denied the motion, stating that "reasonable people can differ as to what substantial is in a situation when you're being locked in a room beaten severely for five or ten minutes." The defense called no witnesses, and the attorneys made their closing arguments on the afternoon of Thursday, March 15.

The jury deliberated on Friday, March 16, and reached a verdict shortly before the courthouse was closed at 3:00 p.m. because of snow. The jury found defendant guilty of count two, third-degree aggravated assault, and count three, first-degree kidnapping. It acquitted defendant of count one, second-degree aggravated assault, and count four, third-degree terroristic threats.

On May 25, 2007, the court granted the State's motion to sentence defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44-3. It then sentenced defendant to forty years' imprisonment on the first-degree kidnapping charge, with eighty-five percent of the sentence to be served before eligibility for parole under the No Early Release Act, N.J.S.A. 2C:43-7.2. On the third-degree charge of aggravated assault, the court sentenced defendant to a concurrent term of five years' imprisonment with two and a half years to be served before eligibility for parole.

On appeal, defendant makes the following arguments:

POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S

MOTION FOR JUDGMENT OF ACQUITTAL ON THE KID-

NAPPING COUNT BECAUSE THE EVIDENCE WAS

INSUFFICIENT TO ESTABLISH CONFINEMENT FOR A

SUBSTANTIAL PERIOD OF TIME.

POINT II THE TRIAL COURT ERRED IN FAILING TO CHARGE

THE LESSER INCLUDED OFFENSES OF CRIMINAL

RESTRAINT AND FALSE IMPRISONMENT (Not

Raised Below).

POINT III THE TRIAL COURT'S RESPONSE TO THE JURY'S

QUESTION CONCERNING THE EXISTENCE OF A

RESTRAINING ORDER WAS INACCURATE, UNDULY

PREJUDICIAL, AND DEPRIVED DEFENDANT OF A FAIR

TRIAL (Not Raised Below).

POINT IV THE COURT'S INSTRUCTIONS TO THE JURY ABOUT

THE COURT HOUSE WEATHER RELATED CLOSING AT

3:00 P.M., AND ITS SUGGESTION THAT THEY RETURN

A VERDICT WITHIN TWO TO THREE HOURS, WERE

UNDULY COERCIVE AND DENIED DEFENDANT A FAIR

TRIAL AND DUE PROCESS OF LAW (Not Raised Below).

POINT V THE TRIAL COURT'S FAILURE TO RECHARGE THE JURY

ON THE ELEMENTS OF KIDNAPPING OR TO DEFINITIVELY

ASCERTAIN THAT THE JURY DID NOT WISH A RECHARGE

ON THAT COUNT DEPRIVED DEFENDANT OF DUE PROCESS

AND A FAIR TRIAL (Not Raised Below).

POINT VI THE PROSECUTOR'S ELICITATION OF VICTIM IMPACT

TESTIMONY AND HIS ARGUMENT IN SUMMATION

CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH

DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL

(Not Raised Below).

POINT VII THE COURT ABUSED ITS DISCRETION IN IMPOSING

A FORTY YEAR EXTENDED TERM SENTENCE ON THIS

OFFENSE.

Although sufficiency of evidence on the kidnapping charge is a close question, we conclude that the trial court did not err in denying defendant's motion for a judgment of acquittal. But we also conclude that the trial court erred in failing to give the jury the option of finding defendant not guilty of kidnapping by considering the lesser-included offense of criminal restraint. Consequently, we reverse defendant's conviction for kidnapping and remand that count for a new trial. Our conclusion renders moot defendant's Points V and VII.

With respect to defendant's other arguments, we conclude that the alleged errors, to the extent shown, are moot as to his conviction for kidnapping and were "not capable of producing an unjust result" in relation to defendant's conviction on aggravated assault. R. 2:10-2. Therefore, we affirm defendant's conviction and sentence on count two, third-degree aggravated assault.

II.

In reviewing a trial court's denial of a motion for judgment of acquittal, "the relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 81 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2881, 2789, 61 L. Ed. 2d 560, 573 (1979)); see State v. Reyes, 50 N.J. 454, 458-59 (1967). The State's evidence should be viewed in its entirety and given "'the benefit of all its favorable testimony and all of the favorable inferences' to be drawn from that testimony." State v. Spivey, 179 N.J. 229, 236 (2004) (quoting State v. Moffa, 42 N.J. 258, 263 (1964)).

To determine if a rational jury could have found the essential elements of kidnapping in this case, we look first to the kidnapping statute in our Criminal Code. N.J.S.A. 2C:13-1b provides in relevant part that:

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 . . . .

[(Emphasis added.)]

The State alleged that defendant confined his wife for a substantial period in their apartment with the purpose of assaulting and terrorizing her and inflicting bodily injury upon her. In its responding brief on appeal, the State also argued that defendant could have been alternatively found guilty of kidnapping because he pulled his wife by the hair into the bedroom, thus removing her "a substantial distance" from where defendant found her as she was trying to leave the apartment.

We agree with defendant that this asportation alternative under the statute does not apply because the indictment did not charge that form of kidnapping and the jury was never instructed on it. We need not discuss whether a distance of "five to ten feet" from the hallway to the bedroom, according to the victim's testimony, can constitute a substantial distance under the statute. The case was tried on a theory of defendant confining his wife in the apartment for a substantial period, not removing her a substantial distance from one place to another.

In State v. La France, 117 N.J. 583 (1990), the Supreme Court first addressed the meaning of "a substantial period" as it relates to confinement in the kidnapping statute. Following the reasoning of State v. Masino, supra, 94 N.J. at 447, the Court said whether the period of confinement is substantial must be measured in "qualitative terms," La France, supra, 117 N.J. at 585, 590, not just its length in hours, minutes, or other measurable time. The confinement must be "restraint that is not merely incidental to the underlying substantive crime." Id. at 591. It must "substantially increase the risk of harm beyond that necessarily present in the crime itself." Id. at 587 (citing Gov't of the Virgin Islands v. Berry, 604 F.2d 221, 227 (3d Cir. 1979), and People v. Daniels, 459 P.2d 225, 238 (Cal. 1969)).

In La France, the defendant was committing a home robbery. He bound the husband and left him in a bedroom for at least thirty minutes while he sexually assaulted the wife in the hallway. The husband eventually freed himself and subdued the defendant. Id. at 591-93. The Court held that the "jury could rationally conclude that the thirty-minute confinement of the husband was a 'substantial period' when coupled with the vulnerability and harm brought to his wife as a result of his confinement." Id. at 593.

Similarly, in cases where elderly victims of home invasion robberies were bound by the robber, we have held the jury could rationally find that the elements of kidnapping had been proven, even where the victim freed himself in about ten minutes. See State v. Bryant, 217 N.J. Super. 72, 80-82 (App. Div.), certif. denied, 108 N.J. 202, 652, cert. denied, 484 U.S. 978, 108 S. Ct. 490, 98 L. Ed. 2d 488 (1987); State v. Denmom, 347 N.J. Super. 457, 465-66 (App. Div.), certif. denied, 174 N.J. 41 (2002).

Here, the State never presented any direct evidence of the amount of time that defendant prevented his wife from leaving the apartment. Viewed most favorably to the State, and except for the uncertainty of the length of time that the victim may have blacked out, the evidence suggests a maximum of five to ten minutes for the events in the apartment described by the victim. Although a short time, the jury could find, consistently with the cases cited, that the confinement was for a substantial period provided that the nature of the confinement increased the risk of harm to the victim.

We have found insufficient evidence of confinement in a home invasion robbery where the defendants ordered the victim not to move, and when he did, they subdued the victim, put duct tape over his mouth, and then beat the victim to death as he continued to struggle. See State v. Soto, 340 N.J. Super. 47, 73-75 (App. Div.), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds, State v. Dalziel, 182 N.J. 494 (2005). We concluded in Soto that the confinement was part of the underlying crimes rather than the separate crime of kidnapping that increased the risk of harm to the victim. Id. at 75.

Likewise, the evidence of confinement was insufficient where the defendant sexually assaulted a girl on the stairs of her apartment building and then ordered her not to leave while he fled the building. She remained in place for about thirty seconds as he fled down the stairs. See State v. Purnell, 394 N.J. Super. 28, 34, 53-55 (App. Div. 2007). We said that the girl's confinement was incidental to the sexual assault and not for a substantial period that enhanced the risk of harm to her, especially because the risk of harm was decreasing as the defendant quickly fled. Id. at 54.

However, as an illustration of what the word "substantial" in the statute can mean in "qualitative terms" rather than measurable distance or time, we also said in Purnell that the defendant could rationally be found guilty of kidnapping under the asportation manner of kidnapping because he had grabbed the girl on the stairs before the sexual assault and taken her one flight up and further away from her apartment. Id. at 34, 53. We said the removal of the girl that distance of one flight was substantial because it increased the risk of harm to her. Id. at 53.

To further illustrate through different circumstances that the length of time is not determinative, in State v. Lyles, 291 N.J. Super. 517, 523-25 (App. Div. 1996), certif. denied, 148 N.J. 460 (1997), we reversed the defendant's conviction on a charge of kidnapping where he had committed a so-called date-rape in the victim's apartment and then prevented the victim from leaving for about two and a half hours. The defendant's purpose in confining the victim after the rape was not to commit another crime but to talk to her. See id. at 523-24, 527. We said, "reasonable minds could not differ in concluding that defendant's conduct, while opprobrious and certainly constituting the heinous second-degree crime of sexual assault, cannot be reasonably construed as also constituting an independent crime of first-degree kidnapping by unlawful confinement." Id. at 527.

In Lyles, the defendant did not confine the victim so that he could rape her. To the extent there was confinement while the rape was occurring, that confinement was incidental to the crime of sexual assault itself. Id. at 528. Additional confinement after the rape was for a purpose other than to commit another crime, to flee from commission of a crime, or to cause the victim bodily injury. Id. at 527-28. While we did not discuss in Lyles whether the additional two and a half hours of confinement could rationally be viewed as occurring with a purpose to terrorize the victim, the facts suggested that the victim was less terrorized than emotionally hurt, upset, and angry about the defendant's conduct. Id. at 523-24.

In this case, the evidence of defendant's initial confinement of his wife on the bed while he beat her cannot be deemed also to prove a kidnapping. That confinement could rationally be viewed only as incidental to the initial assault upon her. The assault consisted of defendant's throwing her by the hair into the bedroom, pinning her down on the bed, and beating her about the face with about twenty punches.

After that, however, defendant ordered her to stay on the bed and jumped on her and punched her in the nose when she tried to get up. He then repeatedly ordered her to get in the corner. When she tried to fight him, he blocked the door and threatened several times that she would not leave the apartment alive. When she got to the telephone and called for help, he pulled the wire out of the jack, thus demonstrating that he would prevent her from getting help and getting out.

The jury could rationally find from the evidence that defendant's purpose in inflicting the subsequent beating, making the verbal threats, blocking the door, and disconnecting the telephone was to restrain and isolate his wife within the apartment. Furthermore, defendant expressed his purpose to cause her bodily harm and to commit the further crimes of additional assaults and even homicide. A rational jury could conclude from the evidence that defendant's purpose was to terrorize her, apparently because she had questioned his refusal to do laundry and his intent to go out for the day. If the restraint and isolation of the victim was "criminally significant" because it enhanced the risk of harm to her, the jury could rationally convict defendant of kidnapping by confinement for a substantial period. La France, supra, 117 N.J. at 592.

We conclude that the trial court did not err in denying defendant's motion for a judgment of acquittal on the kidnapping charge.

III.

The court erred, however, in giving the jury no alternative but to find defendant either guilty or not guilty of kidnapping. Neither attorney requested a jury instruction on a lesser-included offense under the kidnapping count, but the evidence here unquestionably called for a charge on criminal restraint.

The New Jersey Criminal Code defines criminal restraint as follows:

A person commits a crime of the third degree if he knowingly:
 
a. Restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury; or
 
b. Holds another in a condition of involuntary servitude.
 
The creation by the actor of circumstances resulting in a belief by another that he must remain in a particular location shall for purposes of this section be deemed to be a holding in a condition of involuntary servitude.

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

In La France, supra, 117 N.J. at 590-91, the Supreme Court said that the Criminal Code "deal[s] with kidnapping and related offenses" of criminal restraint and false imprisonment by grading them according to the severity of harm or risk to the victim and the purpose of the defendant. "Hence, the Code adequately informs juries about which kinds of bodily restraint justify the most severe sanctions of the law." Id. at 591.

The Code grades false imprisonment as a disorderly persons offense and defines it in relevant part through the following language: "if he knowingly restrains another unlawfully so as to interfere substantially with his liberty." N.J.S.A. 2C:13-3.

Both criminal restraint and false imprisonment fit within the Code's definition of lesser-included offenses of kidnapping. See N.J.S.A. 2C:1-8d(1) and (3); State v. Savage, 172 N.J. 374, 398, 401 (2002).

"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, supra, 172 N.J. at 397 (quoting State v. Choice, 98 N.J. 295, 298 (1985)). Recently in State v. Cassady, 198 N.J. 165 (2009), the Supreme Court said:

N.J.S.A. 2C:1-8(e) commands that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." We have stated this two-prong test thusly: "whether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense."

[Id. at 178 (quoting State v. Thomas, 187 N.J. 119, 131 (2006), rev'd on other grounds after remand, 195 N.J. 431 (2008)).]

The court must consider "whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (1994); accord Purnell, supra, 126 N.J. at 531.

In Brent, supra, the Court said: "The criminal-restraint statute 'provides intermediate penalties between those for kidnapping and false imprisonment . . . . [I]n view of the fact that the victim is not isolated, in danger of death, nor necessarily terrorized, classification of this offense as a crime of the third degree seems adequately severe.'" 137 N.J. at 122 (quoting 2 Final Report of the New Jersey Criminal Law Revision Commission, 2C:13-2 commentary (1971)). The Court further quoted from the commentary to the Model Penal Code, after which the New Jersey statute is modeled, in stating that "a person who restrains another for an insubstantial period of time . . . may be guilty of [criminal] restraint but not of kidnapping." Ibid. (quoting Model Penal Code and Commentaries 212.2 cmt. at 240-41 (Official Draft and Revised Comments 1985)).

Here, the evidence clearly allowed the jury to find defendant not guilty of kidnapping but guilty of criminal restraint. The jury could have determined that the confinement of the victim was not for a substantial period as that phrase has been explained, or that defendant's purpose in confining his wife was not to commit further assaults or to inflict further bodily injury on her. At the same time, the jury could have determined from the evidence that defendant restrained his wife unlawfully in circumstances exposing her to risk of serious bodily injury, or held her under circumstances resulting in her belief that she was required to remain in the apartment, thus meeting the statutory definition of involuntary servitude. If the jury had reached those determinations from the evidence, the proper verdict would have been not guilty of first-degree kidnapping but guilty of third-degree criminal restraint.

As in Savage, supra, 172 N.J. at 400-01, however, we do not find error in the trial court's failure to charge the lesser-included offense of false imprisonment without request from defense counsel. All the evidence pointed to either risk of serious injury to the victim or a belief that she must stay in the apartment at the risk of serious injury or death. If on retrial, the defense requests a lesser-included charge on false imprisonment, the court will have to consider whether it is warranted based on the evidence presented at the retrial. See Cassady, supra, 198 N.J. at 178; Brent, supra, 137 N.J. 117-18.

Although neither party requested that the jury be given the option of considering criminal restraint, "the court ordinarily has a supervening responsibility to charge the jury concerning any version of the offense 'clearly indicate[d]' by the evidence to require proper jury consideration." State v. Grunow, 102 N.J. 133, 148 (1986) (quoting Choice, supra, 98 N.J. at 299)). The trial court's failure to charge criminal restraint as a lesser-included offense was reversible error that requires setting aside defendant's conviction for kidnapping and granting him a new trial on that charge.

IV.

Having concluded that defendant must be retried on the kidnapping charge, we need not address his other arguments unless they could have affected his conviction on the aggravated assault charge.

Count two of the indictment charged third-degree aggravated assault in that defendant "purposely did attempt to cause significant bodily injury" to his wife, in violation of N.J.S.A. 2C:12-1b(7). That statute provides in relevant part that a person is guilty of third-degree aggravated assault if he "[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly." The phrase "significant bodily injury" is defined in N.J.S.A. 2C:11-1d as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." In turn, "bodily injury" is defined in N.J.S.A. 2C:11-1a as "physical pain, illness or any impairment of physical condition."

We note that the evidence of defendant's commission of an assault on his wife was extremely strong. She testified that he pulled her by the hair into the bedroom and threw her onto the bed. He then sat on top of her, with his knees holding down her arms, and he punched her about twenty times. She blacked out for a while. When she tried to get up, he jumped on top of her again and punched her in the nose, causing bleeding.

The victim's testimony was corroborated by the police officer's description of seeing her on the street a few minutes after the assault. She was holding a towel to her bleeding nose, and she was crying. First aid squad personnel were attending to her injuries, which the officer described as a bruise to her nose, a swollen ear, and discoloration under her eyes. The officer saw blood on her shirt and later observed blood on the pillows and sheets in the apartment. Pictures of the victim taken the same day and two days later, as well as the emergency room records, established without question that she had been beaten about the face.

In fact, defense counsel did not dispute that his client had assaulted his wife, telling the jury in both his opening statement and closing argument that he was not claiming that the victim was not assaulted. Instead, his defense was that the case was overcharged, that the victim's injuries were not serious, and that the victim herself wanted the case dismissed.

Consequently, we view the other contentions of defendant in the context of whether they could have affected the jury's verdict of guilty on third-degree aggravated assault. Additionally, because none of these contentions was raised in the trial court, defendant must show that they constitute plain error in the trial. R. 2:10-2. Under the plain error standard of review, discussed at length by Chief Justice Weintraub in State v. Macon, 57 N.J. 325, 329-41 (1971), we shall disregard any error "unless it is of such a nature as to have been clearly capable of producing an unjust result." Id. at 337 (quoting R. 2:10-2). "In other words, was the possibility of injustice 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached'?" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting Macon, supra, 57 N.J. at 336).

A.

Defendant argues in Point III of his brief that the trial court responded inappropriately to the jury's question about a restraining order, thus depriving him of a fair trial. During deliberations, the jury asked the court for a copy of the police report and also asked if there was a restraining order and, if so, who it was filed by. The court responded:

Unfortunately, ladies and gentlemen, we cannot give you either of these. What you have to rely upon is evidence that was presented during the trial and make your determination based upon that evidence.

During the charge, I -- and it's blended in there and it says that a lot of times things are marked for identification, but if they're not admitted into evidence you do not get a chance to see them. You can rely upon the testimony what was said about it, but you cannot actually see the document itself because it wasn't presented into evidence.

And I don't know if there was any mention of -- and that's for your decision about a restraining order, but that's the only thing you can rely upon is that testimony. Since it wasn't admitted into evidence, we cannot tell you whether or not there was one or not unless the testimony brought it out, and we can't give you anything that has not been marked into evidence.

Defendant argues incorrectly that no evidence of a restraining order was presented at trial and the court should have so instructed the jury. In fact, the Bayonne police officer testified: "[W]hen she was released from the hospital, we took her into headquarters. We got a restraining order and I signed the complaints for for Ms. Betancourt." (2T34-4 to -7). When questioned about whom the complaint was signed against, he answered "her husband . . . Rolando Betancourt." (2T34-8 to -12). The defense made no objection to this testimony. The court properly instructed the jury that they must rely on the evidence presented at trial. There was no factual error in the court's response to the jury's inquiry.

Defendant also cites State v. Chenique-Puey, 145 N.J. 334, 343 (1996), for its holding that evidence of a domestic violence restraining order is inadmissible in a trial of criminal charges for terroristic threats because "[a] jury could interpret the order as a judicial imprimatur on the victim's testimony." In this case, the jury's question about who filed for the restraining order may be rooted in defense counsel's argument that the victim did not want to proceed with prosecuting charges against her husband. Neither the judge's answer nor the testimony of the police officer contradicted that defense.

Considering the victim's testimony about the nature and severity of the assault, as corroborated by physical evidence of her injuries, mere mention of a restraining order was hardly "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

B.

In Point IV of his brief, defendant argues that the court pressured the jury to reach a verdict quickly by telling the jury that the courthouse would be closing early because of snow and that they should be able to return a verdict within two or three hours. Defendant cites State v. Nelson, 304 N.J. Super. 561, 566 (App. Div. 1997), where we found plain error in the trial court's instruction informing the jury that it would declare a mistrial if they did not reach a verdict within forty-five minutes.

Here, during jury selection, the court said that the trial would be relatively short and would likely be concluded by the end of Friday morning. Before opening statements on Thursday, the judge informed the jury that the court may close or have a delayed opening on Friday because of bad weather. After summations on Thursday, the judge told the jury that its charge would take about one hour on Friday morning, and although the jury could take as much time to deliberate as it needed, the court anticipated that the jury could return a verdict within two or three hours.

At 12:35 on Friday, the jury requested further instructions. The court informed the jury that the courthouse was closing at 3:00, and that, if the jury was not finished deliberating by that time, they would have to return on Monday. The judge further said:

The time is up to you. It could be twenty minutes, it could be twenty hours . . . . [I]t's up to you as to how long . . . your deliberations take. So -- but that should be more than enough time for a very short case . . . . [S]o I would assume that within two or three hours, you should be able to come back with a verdict.

Although the court's comment that the jury should be able to return a verdict within two or three hours was ill-advised, we see no error in informing the jury about the 3:00 p.m. closing of the courthouse because of snowy conditions. Deliberating jurors are likely aware of weather conditions outside. They have a right to know about the court's plans for the day. In fact, the court's failure to inform the jury about an ending time for the day's service may be as likely to lead to hasty deliberations as telling the jury that they will be excused at a certain time and may come back on the next court day to finish their deliberations.

Because the court repeatedly instructed the jury that they could take as much time as needed for deliberations, in contrast to setting a deadline as in Nelson, supra, 304 N.J. Super. at 566, we find no plain error in the court's instructions to the jury about their time for deliberations.

C.

In Point VI, defendant argues that he was denied a fair trial because the prosecutor elicited inadmissible impact testimony from the victim and used that testimony in his summation.

On direct examination, the prosecutor asked the victim what she had been doing since the incident. The victim answered that she cannot sleep in her bed anymore, she goes to a psychiatrist, she quit going to her nurse's aide classes, and she stays home because she fears walking down the street. In summation, the prosecutor referred to this testimony, stating:

Her life has changed a lot since then. She was studying to being a nurse's aide. She hasn't been to school since then. She testified that she has not been able to sleep in that bed since then. Can't even stand having her children in the room. She goes outside, she's looking over her shoulder.

The relevance and admissibility of the victim's testimony and prosecutor's argument are debatable.

"The admission of 'background' evidence relating to the victim's character or personal life requires a balancing of the probative value of the proffered evidence against the risk that its admission may pose the danger of undue prejudice or confusion to the jury." State v. Williams, 113 N.J. 393, 451 (1998). The prosecutor's discussion of the victim's good character can be unduly prejudicial. Ibid. In State v. Pennington, 119 N.J. 547, 566-72 (1990), the Court held it inappropriate for the prosecutor to give extensive background information about the victim and her family in his opening statement and summation and to question the victim's family about the impact of the victim's death on them. Defendant argues that the prosecutor's questioning of the victim and his comments in summation violated these principles.

But in contrast to Williams and Pennington, the prosecutor's questioning and argument did not emphasize the good character of the victim or delve at length into the emotional aspects of the harm to her. Moreover, defense counsel made no objection at trial.

The State argues that the disputed testimony was relevant to rebut the defense position that the incident was a routine domestic dispute, not a kidnapping and assault. To prove an assault, however, the State must show bodily injury, not psychological harm. Furthermore, the State presented no evidence except the victim's testimony to establish a causal connection between the defendant's conduct and the psychological harm. If defense counsel had objected, the trial court would have been obliged to analyze the proffered evidence under the balancing required by N.J.R.E. 403 to determine whether its probative value might not be substantially outweighed by its potential for prejudice.

"Prosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). In view of the strength of the evidence of a third-degree aggravated assault, admission of evidence of the impact upon the victim of the assault and confinement, and its continuing psychological harm, was not plain error.

V.

 
Defendant's conviction for kidnapping is reversed and that count of the indictment is remanded for a new trial. Defendant's conviction and sentence for third-degree aggravated assault are affirmed.

Defendant's brief contains no argument challenging his sentence on the aggravated assault conviction.

In State v. Masino, 94 N.J. 436, 447 (1983), the Supreme Court said:

We hold that one is transported a "substantial distance" if that asportation is criminally significant in the sense of being more than merely incidental to the underlying crime. That determination is made with reference not only to the distance travelled but also to the enhanced risk of harm resulting from the asportation and isolation of the victim. That enhanced risk must not be trivial.

Apparently concluding that the victim's injuries did not rise to the level of "serious bodily injury" as defined in N.J.S.A. 2C:11-1a and as charged in count one of the indictment, the jury acquitted defendant of second-degree aggravated assault.

(continued)

(continued)

29

A-2981-07T4

November 30, 2009