STATE OF NEW JERSEY v. EYVONNE ALEXANDER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

EYVONNE ALEXANDER, a/k/a

EYVONNE D. ALEXANDER and

EVYONNE D. BULLOCK,

Defendant-Appellant.

___________________________

May 27, 2014

Before Judges Fuentes, Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-02-0184.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a bench trial, defendant Eyvonne Alexander was convicted of first-degree kidnapping by unlawfully removing a child from "a" place of business with the purpose to permanently deprive a parent of custody, N.J.S.A. 2C:13-1b(4) (count one); and first-degree kidnapping by unlawfully removing a child a substantial distance from the vicinity where the child was found with the purpose to permanently deprive a parent of custody, N.J.S.A. 2C:13-1(4) (count two). The trial judge imposed concurrent twenty-year terms of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE IN [ITS] INSTRUCTIONS THAT THE PRIOR INCONSISTENT STATEMENTS WERE ADMISSIBLE AS SUBSTANTIVE EVIDENCE. (Not Raised Below).

POINT II

DEFENDANT'S CONVICTION AND SENTENCE UNDER COUNT ONE OF THE INDICTMENT, CHARGING HER WITH KIDNAPPING THE VICTIM "FROM . . . A BUSINESS," MUST BE VACATED. (Partially raised below).

A. Unlawfully Removing Another From "A Business["] or "A Place Of Business" Does Not Constitute Kidnapping Under [N.J.S.A.] 2C:13-1b Unless The Removal Is From The Victim's Own "Place Of . . . Business."

B. Defendant's Conviction And Sentence On Count One Of The Indictment Must Be Merged Into The Conviction And Sentence On Count Two.

POINT III

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

We have considered defendant's contention in Point I in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm defendant's conviction and sentence on count two, but reverse and vacate the conviction and sentence on count one and remand for entry of an amended judgment of conviction (JOC).

We derive the following facts from the record. On October 16, 2008, defendant took a three-year-old child, J.A., from a store in Elizabeth without the permission of the child's mother. Defendant took J.A. to her boyfriend's place of business and then to her home in Rahway, which was approximately 5.68 miles from the store in Elizabeth. While at her home, defendant changed J.A.'s clothing and hairstyle and removed a necklace bearing the child's name. She then returned to her boyfriend's place of business, where she was arrested.

Defendant did not dispute she took J.A. from the store without the mother's permission. The issue at trial was her state of mind. The State claimed that she took J.A. in order to pass her off to her boyfriend as his child. Defendant claimed she was insane, mentally ill, or thought J.A. had been abandoned, was in danger, and needed her protection. The trial was essentially a "battle of the experts" who testified about defendant's mental state.

The trial judge found defendant guilty on both counts. As to count one, the judge found that defendant unlawfully removed J.A. from "a" place of business with the intent to permanently deprive the child's mother of custody. Defendant argues in Point II that this was error because N.J.S.A. 2C:13-1b(4) required proof that she took J.A. from J.A's place of business, not "a" place of business. We agree.

N.J.S.A. 2C:13-1b(4) provides as follows:

A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or 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:

. . . .

To permanently deprive a parent, guardian or other lawful custodian of custody of the victim.

[N.J.S.A. 2C:13-1b(4) (emphasis added).]

"'When interpreting statutory language, the goal is to divine and effectuate the Legislature's intent.'" State v. Buckley, 216 N.J. 249, 263 (2013) (quoting State v. Shelley, 205 N.J. 320, 323 (2011)). To determine the Legislature's intent, we begin with the "'language of the statute, giving the terms used therein their ordinary and accepted meaning.'" Ibid. (quoting Shelley, supra, 205 N.J. at 323). "'When the Legislature's chosen words lead to one clear and unambiguous result, the interpretive process comes to a close, without the need to consider extrinsic aids.'" Ibid. (quoting Shelley, supra, 205 N.J. at 323).

Here, the Legislature intended that the crime of kidnapping occurs under three separate circumstances: (1) where the defendant takes the victim from his residence or place of business regardless of how far the victim is taken; (2) where the defendant takes the victim from somewhere other than his residence or place or business to a place a substantial distance from where the victim is found; and (3) where the defendant unlawfully confined the victim for a substantial period. N.J.S.A. 2C:13-1b(4). Accordingly, because defendant did not take J.A. from her residence or place of business, defendant's conviction and sentence on count are reversed and vacated.

We affirm defendant's sentence on count two for the reasons the trial judge expressed at sentencing on December 2, 2011. There is competent, credible evidence in the record supporting the judge's findings of aggravating and mitigating factors, State v. Miller, 205 N.J. 109, 127 (2011), and the sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984).

Affirmed in part, reversed and vacated in part, and remanded for entry of an amended JOC in accordance with this opinion.