STATE OF NEW JERSEY v. ANDREW W. PENA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW W. PENA,

Defendant-Appellant.

_______________________________________

December 18, 2013

 

Argued September 30, 2013 Decided

 

Before Judges Yannotti, St. John and Leone.

 

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 08-01-00010.

 

Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief).

 

JohnK. McNamara,Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Mr. McNamara and Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Defendant Andrew Pena was tried before a jury and found guilty of first-degree aggravated sexual assault, criminal restraint and other offenses. He appeals from the judgment of conviction entered on December 14, 2009. We reverse.

I.

Defendant was charged with various offenses arising out of the assault of E.D., specifically first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree burglary, N.J.S.A. 2C:18-2(b) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count four); and third-degree criminal restraint, N.J.S.A. 2C:13-2(b) (count five).

At the trial, the State presented evidence which established that, in the early morning hours of January 28, 2007, E.D. and her friends C.C. and L.D. were at a party. E.D. was nineteen years old at the time. At approximately 3:00 a.m., E.D. volunteered to "drive and go get everybody bagels." E.D., C.C., and L.D. drove in C.C.'s car to a nearby bagel store.

E.D. dropped off C.C. and L.D. at the store, and parked the car in the parking lot. As she sat in the car, E.D. saw someone sweeping with a push broom and thought he was employed at the bagel store. E.D. later identified defendant as the person she saw sweeping.

According to E.D., defendant came up to the driver's side window, which was closed. He said she should move the car "because he didn't want [her] to get in trouble and . . . he needed to sweep the snow." E.D. said she was able to look at defendant "for a good ten to fifteen seconds." He was wearing a red and blue fitted snow hat, a snow jacket and blue pants.

E.D. moved the car to the side of the building, but defendant told her that she "had to keep going." E.D. continued until she could go no further. She parked the car "on an angle" and turned the engine off. Defendant told her to turn off her headlights so she would not "wake up the neighbors."

While she was sitting in the car, E.D. received a call from C.C., who asked if she wanted a bagel. As E.D. and C.C. were talking, defendant said "can you watch out for me, I have to go to the bathroom." Defendant "disappeared" towards the inside of the building for "five seconds" and returned. When E.D. looked up again, defendant was walking towards her with "his pants a little bit down and he had an erection."

E.D. became "really scared" and put the phone down. She tried to start the car as defendant walked over to her, but the car would not start. She tried to lock the door, but she did not know where the lock was. E.D. testified:

So he got to my car, and when he got to my car, he opened the door, . . . he went inside, he took his hands, rubbed his hand around my hair, pulled it back and put his whole body in front of me and said "Have you ever seen something so big," he said, "Just touch it," and I was yelling at him and screaming to get out of my car, like "Get the fuck out of my car," and he wouldn't listen and he just kept pulling my hair back and saying, "Shh, shh, just touch it, just touch it."

 

And, after he did that, he forced me to touch it, and after I did that, he then ripped me -- like grabbed me by my pants and ripped me out of my car and pulled my pants right down, and then he got on top of me, jammed four fingers inside of me and I was just -- I don't know, scared and I tried to get him to calm down by talking to him and he had like four fingers inside me and he was just jamming them inside me and he was like "Shh, I just want to feel this," and then I - and then one of the girls came out, said something, and then I was able to push him off of me and run inside the building and told them to call 911 because I had just been raped.

 

According to E.D., when defendant was on top of her inside the car, he reached for the cellphone and threw the phone and the keys outside the car. E.D. said the length of time that she was forced to touch defendant's penis was "[t]hree seconds." In court, E.D. identified defendant as the man who had assaulted her.

C.C. testified that she had been on the phone with E.D., who asked how much the bagel cost and then did not respond when C.C. continued to talk to her. As C.C. and L.D. exited the store, they saw E.D. running to the store "crying hysterically" and shaking. C.C. said that E.D. could "barely speak."

L.D. testified that she and C.C. were inside five or ten minutes and, when they came out, they could not see E.D. or the car. They looked around the side of the building and saw the car "in the back facing like [E.D.] was going to try to go around the building and realizing that she couldn't." The only other vehicle there was a silver pickup truck backed up to the building.

The driver's side door of C.C.'s car was open and L.D. could hear "shuffling, movement on the ground" and E.D. saying something that L.D. could not understand. L.D. first thought E.D. lost something, but then she saw a man "pop up" by the driver's side door and take a step back. He had "something shiny in his hand" that looked like a lit up cellphone.

The man took a step back, stared at L.D. and ran behind the building. L.D. said the man was about her height, five-feet-five or five-feet-six inches tall, he had darker skin and was not Caucasian, and looked "younger than forty." He was wearing "a very colorful hat" that tied underneath and had a ball on top, like hats worn by little kids.

E.D. ran up to L.D. and C.C. She was "hysterical, crying, frantic" and said "he just raped me." They went into the store and called 911. E.D. reported that "he fingered me, he put his fist in me." At 3:43 a.m., an employee of the bagel store called 911. The 911 tape was played for the jury.

The police and an ambulance arrived and took E.D. to the hospital. L.D. told the police she thought the pickup truck was a silver Ford F-150. She gave the police a partial plate number for the truck and the police issued an alert for the truck.

Detective Brian Ahern of the Morris County Sheriff's Office responded to the scene at 5:22 a.m. There was a light dusting of snow on some areas of the parking lot. Ahern observed numerous impressions of footwear in the snow on the driver's side and behind the victim's vehicle. He saw impressions of tire tracks near the dumpster in the parking lot, and impressions of footwear with a triangular pattern that matched the pattern Ahern saw in the footprints next to the victim's car.

Footwear impressions near a bucket at the north side of the building's rear also showed the same triangular pattern. Ahern was able to determine that some of the footwear patterns in the snow matched his boots and those of other officers, but that none of the shoes of the employees or officers had the triangular pattern. The car's keys were missing.

The officers photographed a hand mark and fingerprints on the outside of the "very dirty" driver's side window above the door handle. They also collected a yellow-handled push broom from the back of the store, but were unable to obtain sufficient fingerprint detail from it. In addition, the police could not recover fingerprints from a cell phone found at the scene, and there were no surveillance cameras outside the store.

E.D. was examined at approximately 6:00 a.m. on January 28, 2007, by a trained sexual assault nurse examiner and an expert in the field of forensic nursing. The examination revealed scrapes and numerous linear scratches on the victim's buttocks, hands, upper leg and back, a bruise on her left buttock and some dried secretions on the left side of her face. An examination of E.D.'s internal and external genitals showed injuries and redness, and the cervix had a small laceration with dried blood.

Detective Colleen Pascale interviewed E.D. at the hospital. E.D. told Pascale she could identify her perpetrator by his teeth and his nose and she also said, "I guess another way would be from his private part because it wasn't normal at all."

Detective Susan Johnson met briefly with E.D. at the hospital and then conducted an audio and videotaped interview of her at approximately 11:00 a.m. on January 28, 2007. E.D. described the perpetrator as "possibly being Hispanic, late twenties, early thirties," and said that he was wearing a hat and had "straight white teeth" and "a medium brown skin tone." He had brown eyes and wore dark denim jeans.

On January 29, 2007, the police determined that the fingerprint from the driver's side car door was defendant's fingerprint. Defendant stipulated that the fingerprint found on the car's window was his. In addition, the police confirmed that defendant owned a silver Dodge pickup truck and that the first three characters of the license plate were similar to that of the truck that "had been observed leaving the scene in a hurried manner."

On January 31, 2007, E.D. selected defendant's photograph from an array of six photographs. She commented that it "[l]ooks just like [her assailant], same face and same eyes." She also commented on the "roundness" of the man's face.

On February 1, 2007, Pascale called defendant and he came to the police station for an interview. He lived approximately thirty to thirty-five minutes from the bagel store. His teeth appeared to be straight and white and he owned a silver Dodge pickup with the license plate number that matched the number reported to the police. After the interview, the police arrested defendant.

Pascale said that after his bail hearing, defendant "blurt[ed] out 'I was there.'" Later, while he was being transported, defendant stated that "he was there on Saturday night" and he asked Pascale "how much trouble he was in." Defendant told Pascale he had spoken to the victim and told her to move her vehicle because it was in his way.

A search of defendant's truck and house did not reveal the victim's keys, the multi-colored hat, or the snow jacket. However, in the house, the police found a shirt and pair of denim pants that were similar to the clothing described by the victim. Ahern compared photographs of the footwear impressions from the scene to a pair of size ten brown boots recovered from defendant's house, and Ahern said there was a "class match" between the boot prints in the snow and defendant's boots.

Ahern also compared photographs of impressions made from the tires on defendant's truck to photographs of the tire tracks found in the snow near the dumpster. He said the tires were similar in size, shape and design, but there was not enough detail to conclude that the tires were identical.

Defendant's first two witnesses were private investigator Timothy Braun and defendant's wife, Erin Pena. Braun testified regarding photographs he took of defendant's genitals on September 18, 2008, and the photos were admitted into evidence. Erin testified that she and defendant had been married for five and a half years at the time of trial, but had been in a romantic relationship for seventeen years and were living together on January 28, 2007. Erin said she had never seen her husband in a snowboarding jacket or a multi-colored hat. He typically dressed in layers and did not wear hats.

Erin also said that, on Saturday, January 27, 2007, defendant told her that he would be "gone all day" to see a friend about "some possible side work." He called her later and said "he was going to be late." She went to bed and was awakened when defendant returned at approximately 4:30 a.m.

Later that morning, Erin found "smelly" clothes on the floor and put them in the laundry room. She said that after the police searched the house she discovered that those clothes were still there and she brought them to court in a bag. She also identified the photographs of her husband's penis.

After Braun and Erin testified, the prosecutor said he intended to cross-examine defendant concerning an earlier incident, in which defendant exposed himself to R.K. Prior to trial, the State sought leave to present evidence concerning two incidents of that nature pursuant to N.J.R.E. 404(b).1 The judge conducted a hearing and determined that the evidence might be admissible at trial, depending on the evidence that was presented.

At trial, the prosecutor argued that the State would be prejudiced if it had to wait to present the evidence on rebuttal. The judge agreed that the evidence was relevant on the issue of the size of defendant's penis because defendant had admitted photographs "which show [that his penis was] something like four inches" and, in rebuttal, the State could "bring in some testimony or evidence" indicating that defendant's penis was "more than four inches."

The judge additionally said the State could use the N.J.R.E. 404(b) evidence on identity if defendant claimed that someone else committed the crimes. The judge also stated that, if defendant testified, the evidence could be admitted on motive and intent if defendant testified that he went back to E.D.'s car to close the door. The judge added that there also was an issue as to defendant's state of mind.

The judge found the circumstances of the two prior incidents were similar. The judge noted that both incidents "involved young women, [twenty] or under" who were alone and were "either going to or leaving their cars . . . in parking lots, where [sic] the public is encouraged to use." The judge also said that all three incidents involved "feigned urination as an explanation . . . and an attempt to converse."2 The judge stated that the jury was "entitled to know the circumstances" of these incidents and their details did not require sanitization.

Defense counsel argued that the prejudice from this evidence was "just astronomical" because it involved "a lewd act [involving] a woman." The judge's response was that defendant had admitted committing the offense. Defense counsel also objected to the State's introduction of the evidence through its cross-examination of defendant. The judge overruled the objection.

Defendant then testified that he stopped at the bagel store on the way back from helping a friend in New York. He said he was driving his silver Dodge pickup truck. He could not find a parking spot and attempted to drive around the back of the store, but his way was blocked by the open door of C.C.'s car, which he claimed was unoccupied.

Defendant said he walked over to the open car door and pushed it closed so he could get by "to swing around the back" of the bagel store. Defendant testified that when he closed the door, he "quickly realized" he would need "extra room to swing around the back of [the bagel store]."

Defendant was unable to drive past the unoccupied car. He turned his truck around and went to the other parking lot where he pulled in next to a dumpster. Defendant threw some garbage from his truck into the dumpster and smoked a cigarette. He said two other cars were able to drive around the back of the store.

Defendant went into the store, which he said was "very, very busy for close to four o'clock in the morning" with a line of "between [twelve] and [thirteen] people." He saw no commotion or disturbance and no one calling 911. He decided not to wait and drove home. Defendant insisted that he did not wear jackets or hats when it snowed.

Defendant acknowledged, however, that the shoes with the distinctive treads were his and he did not dispute that his shoe prints were photographed by Ahern. He admitted that he had given a statement to the police on February 2, 2007, in which he denied that he was at the bagel store that past weekend. He told the police one of his workers had been driving his truck.

Defendant also acknowledged telling the police he stayed home splitting wood the entire weekend, while his crew went out to work, and he had been married for fifteen years. Defendant claimed that his investigator's photographs showed his penis "almost erect . . . but not fully erect."

On cross-examination, the prosecutor asked defendant, "[d]id you previously show your penis to a young lady under circumstances where she did not [want to] see it?" Defense counsel objected to the question, but the judge did not respond and never ruled on the objection. Defendant asked if he could answer the question, the prosecutor said, "[d]o you want to answer it?," and defendant responded, "[y]es."

Before the defendant provided any further testimony, the judge told the jury that it had "just heard some testimony . . . about showing a penis to somebody else," and provided the jury with an instruction, indicating that the jury could not consider the testimony as evidence of defendant's disposition to commit the offenses for which he was being tried.

The judge told the jury it could consider defendant's testimony "for the sole and limited purpose of whether someone else had the opportunity to observe the defendant's penis and its size under certain circumstances." The judge also told the jury, "as far as the volunteered information about a plea, you may consider that to aid you, if you need that aid, in making your determination whether the prior offense occurred."

The prosecutor then set forth the details of the incident involving R.K. in a series of questions that sought defendant's agreement:

[PROSECUTOR]: Did you previously show your penis to a young lady under circumstances where she did not [want to] see it?

. . . .

 

. . . This was another incident in a parking lot. Is that correct?

 

. . . .

 

. . . It was a young lady in a car, right, or getting into her car? Is that correct?

 

. . . .

 

And you made a comment to her, to draw her attention. Is that correct?

 

. . . .

 

And the reason you made that comment was because you had your penis outside of your zipper and you were masturbating. Isn't that correct?

 

. . . .

 

Isn't it a fact that this incident that happened with this other young lady happened in a parking lot outside CVS pharmacy in Wayne, New Jersey?

 

. . . .

 

And isn't it a fact that you made a comment to her to draw her attention to you?

 

. . . .

 

And isn't it a fact that the reason you did this was because you had your pants unbuttoned and your zipper undone and you were masturbating your penis?

 

. . . .

 

And you wanted her to look at your penis and the size of your penis?

 

. . . .

 

And, in fact, she did that. You know that, right, because she told you were disgusting.

 

Defendant's response to some of these questions was that he had pleaded guilty to a lewdness charge, and he "would have to say yes" to the prosecutor's questions. But the prosecutor objected on the ground that those answers were nonresponsive and the court directed defendant to answer or be sanctioned. When the questioning resumed, defendant generally responded "Yes," "That's true" or "That's correct" to these assertions.

Immediately following this series of questions and defendant's responses to those questions, the prosecutor reiterated the circumstances of the offenses at issue in this case and asked defendant whether he "want[ed] this jury to believe that you're not [the] assailant who did this to [E.D.]" and "that somebody else looking just like you had just pulled her out of her car and done what she described to this jury." Defendant said he was not the perpetrator.

In rebuttal, the State presented testimony from R.K. Defense counsel again objected. The judge ruled that R.K. could "testify as to penis size," and that the State had "to bring out some details," but the judge would sanitize the evidence if the State "goes too far." Before R.K. testified, the judge instructed the jury that it could use the evidence "for the sole and limited purpose of whether someone else had the opportunity to observe the defendant's penis and its size under certain circumstances."

R.K. testified that she was employed in the special victims unit of a county prosecutor's office where she investigated domestic violence and sexual assaults. In 2002, R.K. was twenty years old. She was a full-time student and worked at a pizzeria. Despite an objection from defense counsel that this testimony had nothing to do with the size of defendant's penis, the judge permitted the testimony to continue.

R.K. stated that, on October 9, 2002, at approximately 1:00 p.m., she stopped at a CVS store in Wayne. As R.K. entered the parking lot, she observed a car leaving the lot. R.K. identified defendant as the person driving that car. R.K. said defendant made eye contact with her as she drove in. R.K. parked her car and went into the store. She noticed that she had forgotten her money, and she returned to her car.

R.K. noticed that defendant had parked his car next to her car. As she was walking to her car, she heard defendant say to her, "You are so beautiful." She looked into his car. Defendant was "masturbating in the car." She said, "He had his hand around his penis and was stroking it in a[n] up and downward motion."

Defendant's attorney again objected, stating that R.K.'s testimony "should have been sanitized." The judge stated that the prosecutor should not "go there." However, the prosecutor again asked R.K. whether defendant was masturbating. He asked R.K. whether she was able to see defendant's penis. She was asked to estimate its size. She said it was approximately eight inches long.

In his closing, the prosecutor stated that E.D.'s and R.K.'s testimony showed that defendant's penis "in other circumstances . . . is bigger than he wants you to believe." In his final instructions, the judge told the jury that it could consider R.K.'s testimony for the sole purpose of whether someone else had had the opportunity to observe defendant's penis "under the certain circumstances that were testified to."

The jury found defendant guilty of all of the charges. He was sentenced on December 14, 2009. The judge sentenced defendant to an aggregate term of twenty-seven years, nine months, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals and raises the following arguments:

POINT I

THE TRIAL COURT ERRED, TO DEFENDANT'S GREAT PREJUDICE, IN PERMITTING DETAILED TESTIMONY CONCERNING THE DEFENDANT'S PURPORTED PURPOSE DURING A PRIOR SEXUAL OFFENSE COMMITTED BY DEFENDANT, NECESSITATING REVERSAL.

 

POINT II

THE STATE COMMITTED EXTENSIVE AND HIGHLY-PREJUDICIAL MISCONDUCT, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10.

 

A. The State Flagrantly Violated State v. Daniels, by Repeatedly Calling the Jury's Attention to the Defendant's Presence At Trial. (Partially Raised Below).

 

B. The State Repeatedly Forced the Defendant To Characterize Other Witnesses As Untruthful.

 

C. The State Invaded Attorney-Client Privilege, and Cast Aspersions on the Defendant's Right To Defend Himself, With Comments and Questions Concerning the Photographs Introduced By the Defense.

 

D. The State Violated the Presumption of Innocence By Identifying the Defendant As The Assailant During Cross-Examination, and the Trial Court Refused To Take Remedial Action.

 

E. The State Improperly Vouched For the Purported Inflammatory Facts of the Case, and In Fact Testified, Under the Guise of Cross-Examination. (Not Raised Below).

 

F. The State Engaged in Denigration of the Defense and the Defendant Throughout the Trial.

 

G. The Defendant Was Further Prejudiced By Numerous Improper Comments and Tactics Throughout the Proceedings.

 

POINT III

THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY JURY WAS VIOLATED BY EXTRANEOUS INFLUENCES, SPECIFICALLY LAUGHTER IN THE COURTROOM BY SPECTATORS WHO WERE CLEARLY AFFILIATED WITH LAW ENFORCEMENT OF THE COURT, AND THE TRIAL JUDGE'S FAILURE TO TAKE APPROPRIATE REMEDIAL ACTION. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. 1, PAR. 9.

 

POINT IV

THE TRIAL COURT ERRED IN REFUSING TO DISMISS THE INDICTMENT, OR OTHERWISE AFFORD RELIEF, BECAUSE OF THE STATE'S LOSS OF SURVEILLANCE VIDEO. U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1, PAR. 10.

 

POINT V

THE TRIAL COURT VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BEFORE AN UNBIASED JURY IN DENYING HIS MOTIONS TO INTERVIEW JURORS FOLLOWING THE TRIAL, IN LIGHT OF THE SERIOUS ISSUES OF JUROR-TAINTING THERE RAISED. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. 1, PAR. 9.

 

POINT VI

THE CONVICTION OF INVOLUNTARY SERVITUDE IS UNSUPPORTED IN THE RECORD, AND ACCORDINGLY MUST BE DISMISSED. U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1, PAR. 10.

 

POINT VII

REVERSAL IS NECESSITATED BY THE CUMULATION OF ERRORS IN THIS CASE.

 

POINT VIII

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

 

A. The Trial Court Erred in Imposing A Consecutive Sentence For Burglary.

 

B. The Length Of the Sentences Is Excessive, Necessitating Reduction.

 

Defendant has filed a supplemental pro se brief, in which he makes the following arguments:

POINT I

THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS TRIAL COUNSEL FAILED TO ASSURE AND PROTECT DEFENDANT'S RIGHT TO PARTICIPATE IN THE CHALLENGE OF JURORS FOR CAUSE AND THE EXERCISE OF PEREMPTORY CHALLENGES DEPRIVED DEFENDANT OF DUE PROCESS AS MANDATED BY THE UNITED STATES CONSTITUTION, FIFTH, SIXTH, AND FOURTEENTH AMENDMENT.

 

A) Defendant was denied of the effective assistance of trial counsel as trial counsel's failure to inform defendant that that [sic] he had waived his right to earphone during the [voir] dire selection process.

 

B) Defendant was denied of the effective assistance of trial counsel as trial counsel fail[ed] to obtain a valid waiver violated the defendant's due process right and equal protection under the sixth and fourteenth amendment.

 

C) Defendant was denied of the effective assistance [of] trial counsel as trial counsel waive[d] his defendant's right to be present during critical stages of the trial and jury selection process.

 

D) Defendant was denied of the effective assistance of trial counsel as trial counsel fail[ed] to file a timely motion for mistrial deprived defendant of a fair trial.

 

II.

We turn first to defendant's argument that his conviction should be reversed because the trial judge erroneously allowed the State to present extensive details concerning a prior offense, which went beyond the limited purpose for which evidence concerning the other offense was admitted. Defendant also argues that the judge erred by failing to provide the jury with an appropriate limiting instruction regarding the use of the evidence.

N.J.R.E. 404(b) states that "evidence 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." The rule additionally states that such evidence may be admitted to show "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." Ibid.

Nevertheless, Rule 404(b) is a rule of exclusion rather than inclusion. State v. P.S., 202 N.J. 232, 255 (2010). When the State seeks to introduce evidence of "other crimes, wrongs or acts" for one of the purposes under N.J.R.E. 404(b), the evidence must satisfy the four-part test in State v. Cofield, 127 N.J. 328, 338 (1992). P.S., supra, 202 N.J. at 255.

Cofield requires that the evidence: 1) be relevant to a material issue; 2) be similar in kind and reasonably close in time to the charged offense; 3) be clear and convincing; and 4) have probative value that is not outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338.3

As we noted previously, prior to trial, the State filed a motion seeking permission to present evidence pursuant to N.J.R.E. 404(b) of "other crimes, wrongs or acts" committed by defendant, specifically two incidents in which defendant exposed himself to young females under circumstances similar to those involving E.D. The judge conducted a hearing on the motion, at which R.K. testified.

In ruling on the motion, the judge addressed some of the Cofield factors, and determined that the evidence might be admissible on the issues of identity, motive, intent, the absence of mistake, and state of mind but that would depend upon the evidence presented at trial. The judge did not address the fourth Cofield factor and did not determine whether the probative value of the evidence outweighed its prejudicial impact.

At the trial, the judge ruled that the evidence concerning the prior offense involving R.K. would be admitted solely on the issue of the size of defendant's penis. The judge had previously barred defendant from presenting photos of his penis, which his investigator had taken while defendant was in jail.

We granted defendant's motion for leave to appeal and summarily reversed. We concluded that defendant could introduce the photos into evidence. We added that the State should be allowed to establish that the photos were taken under circumstances that were different from the circumstances of the alleged assaults at issue in this case.

However, when the judge ruled at trial that the State could present evidence concerning the prior offense involving R.K., he did not make specific findings on the Cofield factors. Furthermore, despite his ruling, the judge did not limit the evidence to the issue of defendant's penis size.

Defendant concedes that the size of his penis was a material issue at trial. Nevertheless, the trial judge erred by allowing the State to present evidence that went beyond the limited purpose for which it had been allowed. The prosecutor elicited testimony setting forth excessive details of the incident, including testimony that defendant approached R.K. while in the parking lot of a store, commented on her appearance, and was masturbating in his car.

The similarity of some of these details with those involved in the charged offenses made it more probable than not that the jury would consider this evidence for the prohibited purpose of showing that defendant had a "disposition" to commit sexual offenses and that he "acted in conformity therewith" when he allegedly assaulted E.D. The prejudicial impact of this evidence substantially outweighed its lack of probative value.

We recognize that the judge told the jury it could not consider the evidence to show that defendant was disposed to commit sexual offenses and he acted in conformity with that disposition. However, as we have explained, the judge admitted testimony that went beyond the limited issue for which evidence of the prior offense had been permitted.

The judge thereby allowed the jurors to hear an array of prejudicial details that mirrored the facts of the offenses for which defendant was being tried, and allowed the jury to infer that defendant was predisposed to commit sexual offenses of the sort for which he was being tried. The judge's instruction was insufficient to address the potential for prejudice arising from the admission of the details of the prior offense.

We are convinced that the admission of extensive, prejudicial facts concerning the offense involving R.K. was not harmless error. We therefore conclude that defendant's convictions must be reversed.

III.

Next, defendant argues that the trial judge erred by denying his pre-trial motion to dismiss the indictment because the State did not preserve the surveillance video recorded in the bagel store at or about the time of the incident in the parking lot. We disagree.

At a pre-trial hearing, Detective Thomas Reidinger of the Morris County Sheriff's Office testified that on the night of the crime he and other officers, including Ahern, went to an upstairs office at the bagel store to view the store's security video. Using a laptop, the store's owner and manager were unable to access images for the relevant time frames. The officers collected the laptop and brought it to the police evidence vault.

Sergeant Christopher Then of the Morris County Prosecutor's Office computer crimes unit examined the laptop. A certified information systems security professional had determined the laptop was only a "conduit for viewing the items on the digital video recorder system," and it "was not the item that stores the data."

Two days later, Then met with the store's manager, Kevin Choi, and learned "that the actual video recording was on a separate unit." Choi could not recover the videotape for the relevant time frames from that unit. Then brought the laptop back to the police lab to analyze it again, but he was unable to view any video.

A month or two later, Then again returned to the store to attempt to view the video using the laptop, but he could not do so. He did not make a copy of the hard drive of the office computer or the laptop. On May 23, 2008, Then returned to the store to discuss the camera placement with Choi and learned for the first time that none of the cameras covered the dumpster area.

Choi testified that the video surveillance system covered "95 percent" of the inside of the store, but only one of the doorways, and it did not film any areas outside, except for the front door when it was opened. Choi explained that he could view what the cameras were showing on a monitor in the office, but a laptop was necessary to view previously-recorded material.

Choi explained that the video hardware in the office cleared itself and re-started automatically every month. The police never asked about that, and Choi did not provide that information to the police until after the recording made on the night of the offenses had been erased.

On the evening the offenses were committed, Choi and the officers watched the video and saw the victim enter the store. He said she had "no top on." She was crying and covering herself with her hands. Choi also thought he saw the same woman talking to the cashier earlier. Choi testified that three workers lived in an apartment above the store. Those workers were not lawfully in the United States. They stopped working at the store four months after the offenses occurred.

Defense counsel argued that the indictment should be dismissed because the videotaped evidence was material to defendant's guilt or innocence and the State had acted in bad faith by allowing the evidence to be destroyed. Defense counsel said he wanted to show that one of the store's workers may have committed the offenses. He stated that the worker would be visible on the tape. He argued that Then's testimony "create[d] an inference of bad faith on the part of the State."

The judge denied defendant's motion. The judge said the State had not acted in bad faith, the evidence was not material to the issue of guilt, and defendant was not prejudiced to the extent that dismissal of the indictment was warranted. The judge found that Then was a credible witness who "conscientiously tried to access the video and could not do so."

The judge stated that he could not find "that there was any video that could have been produced." He noted that it was unknown whether any video recording was actually made of the incident because the video had been recorded over and lost after a month or two. Furthermore, the evidence that was destroyed did not have exculpatory value and comparable evidence could be obtained by other means.

The judge pointed out that the driver's side of C.C.'s car definitely was located "far away" from the area that was recorded. Choi viewed the evidence and his testimony showed that it "really related to something that occurred subsequent to the incident." Choi also was unsure whether the woman he saw earlier in the video was the victim.

The judge found that, if the videotape evidence existed, its loss might have made cross-examination "more difficult" for E.D., but any such "difficulty" did not rise to the level of a denial of defendant's right to confrontation. The judge noted that defendant still could argue third-party guilt on the part of one of the store's employees.

On appeal, defendant argues that he was clearly prejudiced by the "inexplicable and inexcusable spoliation of pertinent evidence." Defendant maintains he was prejudiced by the loss of the evidence because the videotape showed the area "from which the broom presumably used by the assailant was kept" and "would presumably have shown the person who took it," which defendant claimed was someone other than him.

Defendant asserts that this evidence supported his account that he entered the store and left because of the large number of customers. Defendant also notes that Choi testified that the videotape appeared to show that the victim was inside the store at some time prior to the assault. He contends that the video would have supported his testimony that C.C.'s car was not occupied when he closed its door.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Ibid.

Our Supreme Court has explained that, "[t]here are three elements of a Brady violation." State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). "The evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material." Ibid. The issue of whether the State suppressed evidence depends on whether the prosecution actually or constructively possessed it. Id. at 498. Possession of the evidence by law enforcement may be imputed to the prosecutor. Id. at 499-500.

Here, the record shows that the police never possessed the videotape. Some of the officers viewed parts of the video tapes with Choi shortly after the offenses were committed, but the later officers were not able to access the previously-recorded video. Moreover, even if possession of the evidence is imputed to the State, defendant did not establish that the evidence was material to his guilt or innocence.

"Undisclosed evidence is material for Brady purposes if there is a 'reasonable probability' that a different result would have been obtained had the evidence been disclosed." Id. at 500 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).

The record fully supports the trial judge's determination that the videotape would have provided little that would be favorable to the defense. The judge's findings indicate that it was not reasonably probable the videotape evidence could have led to a different result if it had been preserved and presented at trial. We therefore conclude that the judge correctly denied defendant's motion to dismiss the indictment.

IV.

Defendant additionally argues that the trial judge erred by denying his motion to dismiss count five, in which he was charged with third-degree criminal restraint, in violation of N.J.S.A. 2C:13-2(b), on the basis that he "knowingly held E.D. in a condition of involuntary servitude." N.J.S.A. 2C:13-2 provides in pertinent part that:

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.

 

Prior to trial, defendant moved for dismissal of the charge arguing that the facts as alleged did not constitute the crime of involuntary servitude criminal restraint. The trial judge denied defendant's motion because involuntary servitude under N.J.S.A. 2C:13-2(b) includes the "creation of circumstances resulting in the belief by another that he [or she] must remain in a particular location."

The judge determined that, when viewed in the light most favorable to the State, sufficient evidence had been presented to show that defendant had taken E.D.'s keys and created the belief that she had to remain in that particular location. This was sufficient to show criminal restraint by involuntary servitude.

On appeal, defendant argues that criminal restraint by involuntary servitude is inapplicable "to the compelling of a fleeting act during a larger assault" and "was intended to apply only to situations involving forced labor." In response, the State argues that it established at trial "that the defendant compelled an act of service, namely, making the victim touch his penis as he ordered her to do, while her freedom of movement was restrained." The State maintains this is sufficient to show criminal restraint by involuntary servitude in violation of N.J.S.A. 2C:13-2(b).

A court should not disturb an indictment so long as the State has presented some evidence on each element of the crime to establish a prima facie case. State v. Morrison, 188 N.J. 2, 12 (2006). The court must evaluate the evidence and the rational inferences to be drawn therefrom in the light most favorable to the State, and determine whether the grand jury could reasonably believe that a crime occurred and defendant committed it. Id. at 13.

 

 

The decision on whether to dismiss an indictment rests within the discretion of the trial court. State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18 (1984). The court should exercise that discretion only on "the clearest and plainest ground." State v. Weleck, 10 N.J. 355, 364 (1952) (quoting State v. Davidson, 116 N.J.L. 325, 328 (Sup. Ct. 1936)). The court's decision will not be disturbed on appeal unless it represents a clear abuse of discretion. Ibid. However, if the court's decision is based on a misconception of law, it is owed no deference on appeal. State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010).

We are convinced that the judge erred by denying defendant's motion to dismiss the criminal restraint charge. The decision was based on a misapprehension of the law. Neither the taking of the keys from E.D., nor the fact that defendant allegedly compelled E.D. to touch his penis and submit to his sexual assault, constitutes the crime of criminal restraint by involuntary servitude under N.J.S.A. 2C:13-2(b).

In denying defendant's motion to dismiss, the judge relied on the statute's explanatory language. As we noted previously, that part of the statute provides, "[t]he 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(b).

In State v. Marchand, 227 N.J. Super. 92, 96-98 (App. Div. 1988), aff'd o.b., 114 N.J. 569 (1989), we examined the origins of this phrase. After reviewing the legislative history and other contemporaneous information, we concluded

that the "deemed to be" sentence was included in our statute in response to a growing concern regarding migrant laborers. There are many conceivable labor situations where a victim may not be actually threatened with physical force or other means of coercion but where the circumstances created by the defendant have nevertheless resulted in the victims' belief that they are not free to leave.

 

[Id. at 96-97.]

 

We said the legislators wanted the definition to address the conditions faced by migrant workers. Id. at 97. To ensure that it did, "[t]hey agreed on a definition that the condition of involuntary servitude would include slavery, peonage, and 'the creation of circumstances resulting in a belief by another that he must remain in a particular location.'" Ibid. (quoting Assembly Judiciary, Law, Public Safety and Defense Committee Minutes of June 20, 1974).

The defendant in Marchand was convicted of criminal restraint by involuntary servitude for his role in assisting a bounty hunter attempt to locate a fugitive's whereabouts. Id. at 94. The defendant took the fugitive's girlfriend from her home in handcuffs and kept her physically restrained for five to six hours before releasing her unharmed. Ibid.

We reversed the defendant's conviction because his conduct did not come within the concept of involuntary servitude in N.J.S.A. 2C:13-2(b). Id. at 98. We specifically "reject[ed] the State's contention that coerced or forced labor or service is not an element of the offense." Ibid. We stated that the explanatory language in the statute "expands and clarifies what is 'involuntary'; it does not dispense with the requirement that the State show servitude as well." Ibid.

We are convinced that the alleged forced touching of defendant's penis and the restraints upon the victim's movements during the alleged assaults do not come within the concept of involuntary servitude under N.J.S.A. 2C:13-2(b). These alleged acts do not amount to the sort of forced labor or service required to establish involuntary servitude. Accordingly, we conclude that the judge erred by denying defendant's motion to dismiss count five of the indictment.

In view of our decision to reverse defendant's convictions, we need not consider defendant's other arguments. Accordingly, the matter is remanded for entry of an order dismissing count five, and for a new trial on counts one through four.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

 

1 The State chose to present evidence concerning one of the incidents at the trial.

2 It should be noted that, only one of the prior incidents involved "feigned urination." That incident did not involve R.K.

3 Evidence of similarity and temporality is only required when the circumstances replicate those in Cofield. P.S., supra, 202 N.J. at 255 n.4.