New Jersey v. Cruz-Pena

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                     State v. Juan E. Cruz-Pena (A-3-19) (083177)

Argued April 27, 2020 -- Decided August 4, 2020

ALBIN, J., writing for the Court.

       The Court considers defendant Juan E. Cruz-Pena’s jury conviction of first-degree
kidnapping for confining C.M. for a “substantial period” for the purpose of committing
various crimes against her. The Appellate Division reversed the kidnapping conviction,
concluding that C.M.’s captivity did not fall within the meaning of the kidnapping statute
because her “confinement was merely incidental to the underlying sex crime.”  459 N.J.
Super. 513, 516 (App. Div. 2019) (emphasis added).

       Defendant was convicted of first-degree kidnapping, third-degree aggravated
criminal sexual contact, and third-degree aggravated assault, and was sentenced, in the
aggregate, to twenty-three years in state prison, subject to the No Early Release Act, for
his crimes against C.M. during the early morning hours of May 22, 2014.

       At around 2:00 a.m. that day, C.M., a sex worker, was walking in Paterson when
she noticed on the covered porch of an abandoned house a sex-worker friend with two
men C.M. did not know, defendant and Daniel Ortiz. C.M. joined the group on the
porch. Defendant gave C.M.’s friend money to buy the men cocaine. When the friend
did not return, C.M. attempted to leave.

        Defendant punched her in the face, sending her ninety-pound body “flying into the
wall.” Defendant then held a knife to C.M.’s neck and forced her to perform oral sex.
For the next several hours, despite her pleas, defendant compelled her at knifepoint to
perform various sexual acts and repeatedly penetrated her vaginally and anally. Angered
that C.M. was bleeding all over him, defendant punched her in the face again, leading her
to believe her nose was broken. Defendant further terrified C.M. by cutting off her dress
and telling her that he was going to be her “pimp” and “come back every night.” While
C.M. was on her knees and forced to perform oral sex on defendant, Ortiz, at defendant’s
invitation, anally penetrated C.M. for about five minutes. Held against her will at
knifepoint, and by brute and violent force, C.M. endured the cycle of horrors for hours
until a woman from the neighborhood passed by and yelled out, at which point C.M. fled
as defendant chased the women. C.M. reached a gas station, where an attendant called
the police.
                                             1
       C.M. gave a description of her attackers and later identified defendant and Ortiz.

       After his motion for a judgment of acquittal was denied and he was convicted,
defendant appealed, challenging his kidnapping conviction and sentence. The Appellate
Division reversed the kidnapping conviction and therefore did not address defendant’s
sentence.  459 N.J. Super. at 528. The Court granted the State’s petition for certification,
 239 N.J. 398 (2019), and its motion to stay the judgment of the Appellate Division.

HELD: The language of the kidnapping statute, along with the case law construing that
language, must be read in a sensible manner and not taken to an illogical conclusion.
Holding a victim in captivity for a period of four to five hours, while assaulting and
sexually abusing her, satisfies the “substantial period” requirement of the kidnapping
statute -- even if the length of the confinement is co-extensive with the continuous sexual
and physical abuse of the victim. In addition, the Court cannot find that, as a matter of
law, the terrifying four-to-five-hour period of C.M.’s confinement was “merely
incidental” to the sexual violence committed against her. There is no basis to disturb the
jury’s verdict.

1.  N.J.S.A. 2C:13-1(b) provides that “[a] person is guilty of kidnapping if he unlawfully
removes another . . . a substantial distance from the vicinity where he is found, or . . .
unlawfully confines another for a substantial period” with the purpose “(1) [t]o facilitate
commission of any crime or flight thereafter [or] (2) [t]o inflict bodily injury on or to
terrorize the victim or another.” (emphasis added). The kidnapping statute also provides
that “[a] removal or confinement is unlawful . . . if it is accomplished by force, threat, or
deception.”  N.J.S.A. 2C:13-1(d) (emphasis added). Additionally, unless the defendant
“releases the victim unharmed and in a safe place prior to apprehension,” kidnapping is a
crime of the first degree.  N.J.S.A. 2C:13-1(c)(1). First-degree kidnapping is one of the
most serious crimes listed in the New Jersey Code of Criminal Justice. (pp. 14-15)

2. The effort to define and limit the scope of the kidnapping statute is evident in the
statutory language chosen by the Legislature, requiring that a conviction be premised on
removing a victim a “substantial distance” or confining a victim “for a substantial
period.” That statutory terminology is not self-defining, and the Court has provided
guiding principles. A kidnapping is criminal conduct that is “not ordinarily inherent in
the underlying criminal conduct itself” or “merely incidental to the underlying crimes.”
State v. La France,  117 N.J. 583, 589-90 (1990). The substantial-distance-removal and
substantial-period-of-confinement requirements address a scenario where a defendant
“isolates the victim and exposes him or her to an increased risk of harm.” See State v.
Masino,  94 N.J. 436, 445 (1983). Indeed, “the legislature realized that the risk of harm
attendant upon isolation is the principal danger of the crime.” Id. at 446. The “enhanced
risk of harm,” however, “must not be trivial.” Id. at 447; accord La France,  117 N.J. at 594. Removing a victim a substantial distance or confining a victim for a substantial
period are qualitative terms, for sure, but they are also quantitative terms. (pp. 15-19)
                                              2
3. A series of cases illustrates the application of the principles discussed. In Masino, the
defendant pulled his victim from her car, beat her, dragged her across a street, through
trees, and down to a pond where he plunged her head in the water, sexually assaulted her,
then took her clothes and left. Id. at 437-38. Although the linear distance that the
defendant removed the victim from the car to the pond may not have been far in absolute
terms, it was “more than merely incidental to the underlying crime” because the distance
travelled isolated the victim and enhanced the risk of harm to her. See id. at 446-47. The
Court upheld the kidnapping conviction but warned prosecutors that the decision should
not be read “as encouragement for use of a kidnapping charge as some sort of 'bonus’
count in an indictment.” Id. at 447-48. In La France, the Court upheld a jury verdict of
first-degree kidnapping by confinement when a burglar had a husband tied up while the
burglar sexually assaulted his pregnant wife until the husband freed himself and subdued
the burglar, about thirty minutes later.  117 N.J. at 585, 591-93. The Court determined
that the thirty-minute confinement was “more than merely incidental to the underlying
crime,” given the psychological injury caused by the sordid acts committed against the
couple “and the inability of the isolated husband to avert the terror to his wife and injury
to her and their unborn child.” Id. at 593-94. And, in State v. Jackson, the Court found
that the State had presented sufficient evidence to support either a substantial-distance-
removal kidnapping or a substantial-period-confinement kidnapping when a defendant
entered a taxi, robbed the driver at gunpoint, ordered him to drive to a specific location
about fifteen blocks away, and then fled.  211 N.J. 394, 400-02, 418 (2012). The Court
concluded that the victim was “exposed to a substantially extended confinement and a
substantially increased risk” that “was not coextensive with the armed robbery.” Id. at
419. (pp. 19-21)

4. Applying those principles, the Court finds that this case represents a classic example
of kidnapping by confinement. This case meets all of the statutory criteria for first-
degree kidnapping: defendant confined C.M. for a substantial period with the purpose to
facilitate the commission of sexual crimes and aggravated assault and to terrorize C.M.,
see  N.J.S.A. 2C:13-1(b); he accomplished the confinement by force and threat, see
 N.J.S.A. 2C:13-1(d); and he did not release C.M. unharmed and in a safe place before his
apprehension, see  N.J.S.A. 2C:13-1(c)(1). The concern expressed in Masino about the
potential for prosecutorial overreach in transposing a kidnapping charge over a
substantive crime is not present here. See Masino,  94 N.J. at 448. The evidence in this
case, viewed in the light most favorable to the State, clearly established an ample basis
for a reasonable jury to return a verdict of first-degree kidnapping. (pp. 21-24)

      REVERSED. Defendant’s kidnapping conviction is REINSTATED and the
matter is REMANDED to the Appellate Division.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.
                                             3
       SUPREME COURT OF NEW JERSEY
             A-
3 September Term 2019
                       083177


                State of New Jersey,

                 Plaintiff-Appellant,

                          v.

                 Juan E. Cruz-Pena,

               Defendant-Respondent.

       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
        459 N.J. Super. 513 (App. Div. 2019).

       Argued                     Decided
    April 27, 2020              August 4, 2020


Valeria Dominguez, Deputy Attorney General, argued
the cause for appellant (Gurbir S. Grewal, Attorney
General, attorney; Valeria Dominguez, of counsel and
on the briefs).

Marcia Blum, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Marcia Blum and Tamar Y.
Lerer, Assistant Deputy Public Defender, of counsel
and on the briefs).


JUSTICE ALBIN delivered the opinion of the Court.




                          1
      A jury convicted defendant Juan E. Cruz-Pena of first-degree kidnapping

for confining C.M. for a “substantial period” for the purpose of committing

various crimes against her. See  N.J.S.A. 2C:13-1(b). To support the

kidnapping charge, the State presented evidence that defendant held C.M.

captive on the porch of an abandoned building and, over a four-to-five-hour

period, physically assaulted, threatened, and repeatedly sexually abused her

-- and induced a companion to commit a sexual offense against her.

      The Appellate Division held that the trial court erred by not entering a

judgment of acquittal on the kidnapping charge and remanded to vacate the

kidnapping conviction. State v. Cruz-Pena,  459 N.J. Super. 513, 516, 528

(App. Div. 2019). The Appellate Division concluded that C.M.’s captivity did

not fall within the meaning of the kidnapping statute because her “confinement

was merely incidental to the underlying sex crime.” Id. at 516, 521-26

(emphasis added). It reasoned that the confinement was “merely incidental”

because the sexual abuse of C.M. constituted “a single course of uninterrupted

criminal conduct” that occurred during her confinement. Id. at 525. In the

Appellate Division’s view, “the victim’s confinement was inherent in the

sexual abuse defendant inflicted upon her.” Id. at 516.

      We now reverse. The language of the kidnapping statute, along with the

case law construing that language, must be read in a sensible manner and not

                                       2
taken to an illogical conclusion. Holding a victim in captivity for a period of

four to five hours, while sexually abusing and assaulting her, satisfies the

“substantial period” requirement of the kidnapping statute -- even if the length

of the confinement is co-extensive with the continuous sexual and physical

abuse of the victim. In addition, we cannot find that, as a matter of law, the

terrifying four-to-five-hour period of C.M.’s confinement was “merely

incidental” to the sexual violence committed against her. Based on the

evidence presented at trial, the jury was entitled to make highly fact-sensitive

determinations in deciding whether C.M. was confined for a “substantial

period” during the repeated sexual attacks and physical assaults against her.

      A court should not enter a judgment of acquittal based on insufficiency

of evidence unless, viewing the record in the light most favorable to the State,

no reasonable juror could have returned a finding of guilt. Ample evidence

supported submitting the kidnapping charge to the jury.

      We find that there is no basis to disturb the jury’s verdict and,

accordingly, reinstate defendant’s kidnapping conviction. We remand to the

Appellate Division to address the unresolved sentencing issue.




                                        3
                                        I.

                                       A.

      Defendant was charged in a multi-count indictment with first-degree

kidnapping,  N.J.S.A. 2C:13-1(b)(1); first-degree aggravated sexual assault,

 N.J.S.A. 2C:14-2(a)(6); second-degree aggravated assault,  N.J.S.A. 2C:12-

1(b)(1); third-degree aggravated assault,  N.J.S.A. 2C:12-1(b)(2); third-degree

possession of a weapon for an unlawful purpose,  N.J.S.A. 2C:39-4(d); fourth-

degree unlawful possession of a weapon,  N.J.S.A. 2C:39-5(d); and first-degree

robbery,  N.J.S.A. 2C:15-1(a)(1) and (2). 1

      Defendant was tried before a jury in July and August 2016. At the close

of the State’s case, the court denied defendant’s motion for a judgment of

acquittal on all charges in the indictment. The jury returned a verdict of guilty

to the charges of first-degree kidnapping; third-degree aggravated criminal

sexual contact, a lesser offense of aggravated sexual assault; and third -degree

aggravated assault. Defendant was acquitted on all other counts in the

indictment.

      The trial court sentenced defendant on the kidnapping conviction to

twenty-three years in state prison, subject to the No Early Release Act,


1
  Co-defendant Daniel Ortiz was charged on all counts in the indictment,
except for the second-degree aggravated-assault charge. His case was severed
from defendant’s.
                                       4 N.J.S.A. 2C:43-7.2, and on the aggravated criminal sexual contact and

aggravated assault convictions to five-year prison terms, to run concurrent to

each other and concurrent to the kidnapping sentence.

                                         B.

      The only issue before us is whether the trial court erred by not granting a

judgment of acquittal on the kidnapping charge at the end of the State’s case

based on an alleged lack of evidence that the victim was confined for “a

substantial period.” See R. 3:18-1 (stating that at the end of the State’s case,

“the court shall, on defendant’s motion or its own initiative, order the entry of

a judgment of acquittal . . . if the evidence is insufficient to warrant a

conviction”).

      In determining whether, under Rule 3:18-1, the State presented sufficient

evidence for the case to go to the jury, “we apply a de novo standard of

review.” State v. Williams,  218 N.J. 576, 593-94 (2014). Applying that

standard, “[w]e must determine whether, based on the entirety of the evidence

and after giving the State the benefit of all its favorable testimony and all the

favorable inferences drawn from that testimony, a reasonable jury could find

guilt beyond a reasonable doubt.” Id. at 594.




                                         5
       In that light, we now review the evidence presented at trial. Although

various witnesses testified, the State’s key witness was C.M., who recounted

her ordeal during the early morning hours of May 22, 2014.

                                       C.

       At around 2:00 a.m. that day, C.M., a sex worker, was walking on Van

Houten Street in Paterson when she noticed on the covered porch of an

abandoned house a sex-worker friend, Lillian,2 with two men C.M. did not

know, defendant and Daniel Ortiz. C.M. joined the group on the porch and

gave Lillian sixteen dollars to buy crack cocaine and heroin in the area. C.M.

sold sexual favors to sustain her drug addiction -- an addiction she fed by

consuming thirty to forty bags of heroin a day. While Lillian was away,

defendant gave C.M. twenty dollars to perform oral sex but told her to wait

until her friend came back so that both men could be gratified.

       Lillian appeared approximately ten minutes later with cocaine and

heroin, which the two women consumed, while the men drank alcohol and

sniffed cocaine. Defendant then gave Lillian money to purchase cocaine for

the two men. After the passage of approximately thirty minutes, sensing that

Lillian would not be returning, C.M. said she was leaving. Defendant then

told her she could not go until she paid him the money he had given to her


2
    This is the pseudonym used by the Appellate Division.
                                       6
friend. When she attempted to leave, defendant punched her in the face,

sending her ninety-pound body “flying into the wall.” As blood poured over

her face from a head wound, and with her mouth injured, defendant kneeled on

C.M.’s arms and took forty dollars from her pockets.

      Defendant then held a knife to C.M.’s neck and forced her to perform

oral sex. For the next several hours, despite her pleas, “no, no, no, I [do not]

want to do this,” defendant compelled her at knifepoint to perform various

sexual acts and repeatedly penetrated her vaginally and anally. Angered that

C.M. was bleeding all over him, defendant punched her in the face again,

leading her to believe her nose was broken. Defendant further terrified C.M.

by cutting off her dress and telling her that he was going to be her “pimp” and

“come back every night.”

      Except for a time when he went to the next-door bodega, Ortiz spent

most of the time on the porch “just watching.” However, while C.M. was on

her knees and forced to perform oral sex on defendant, Ortiz, at defendant’s

invitation, anally penetrated C.M. for about five minutes. Held against her

will at knifepoint, and by brute and violent force, C.M. endured the cycle of

horrors for hours.

      As the sun began to rise, C.M. saw Angela, a person she knew from the

neighborhood, walking by the abandoned house. Angela testified that she

                                        7
observed C.M. -- crying, bleeding, and naked -- on top of defendant, who was

seated, as the two had sex. As Angela and C.M. locked eyes, C.M. mouthed

the words, “help me.” Angela yelled at C.M. to get up, and C.M. leapt off the

porch. Angela covered C.M. in her own clothes. As defendant came off the

porch with a knife, the two women ran in different directions, with C.M.

eventually reaching a gas station. An attendant there called 9-1-1, and police

officers arrived minutes later, at approximately 6:30 a.m.

      On their arrival, Paterson police officers found C.M. barefoot, bleeding,

and crying. She said she had been raped and gave a description of her

assailants. Nearby, an officer detained two men matching that description.

The police took C.M. to the scene where she positively identified defendant

and Ortiz as her attackers.

      C.M., suffering from head and facial wounds, was taken to the hospital.

She declined to submit to a several-hour sexual assault forensic exam,

explaining that she was becoming “dope sick” and did not want to be touched

or probed after having “been raped for a long time.”




                                       8
      C.M.’s blood was discovered on both defendant’s boxer shorts and one

of his fingernails.3

                                        D.

      At the close of the State’s case, defendant made a generic motion for a

judgment of acquittal, claiming that the State failed to present “a prima facie

case as to all of the elements and all of the counts listed in the indictment.”

The trial court denied the motion, finding that based on the direct and

circumstantial evidence in the record a reasonable jury could convict defendant

of all the charges.

      Defendant appealed, challenging only his kidnapping conviction and

sentence.

                                        E.

      The Appellate Division reversed defendant’s kidnapping conviction and

remanded for the entry of a judgment of acquittal. Cruz-Pena,  459 N.J. Super.

at 528.4 To come to that conclusion, it made several findings: (1) C.M.’s

“confinement was inherent in the sexual abuse defendant inflicted upon her”;


3
  The State introduced a statement made by defendant to the police after his
arrest in which he denied sexually assaulting C.M. or confining her against her
will. Defendant did not testify at the trial.
4
  In light of its decision to vacate the kidnapping conviction, the Appellate
Division did not address defendant’s claim that his sentence was excessive.
Cruz-Pena,  459 N.J. Super. at 528.
                                          9
(2) “[t]he force and threat of force defendant used to restrain [C.M.] were the

same force and threats he used to accomplish the sex crime with which he was

separately charged”; and (3) “the risk of harm the victim faced throughout her

hours-long ordeal, while substantial, was not independent of the danger posed

by defendant’s continuous sexual attack.” Id. at 516.

      The Appellate Division relied primarily on State v. Masino,  94 N.J. 436

(1983), and State v. La France,  117 N.J. 583 (1990), for direction, noting that a

kidnapping conviction “requires proof of movement or restraint 'that is not

merely incidental to the underlying substantive crime.’” See id. at 521-22

(quoting La France,  117 N.J. at 591). The court ultimately concluded that

C.M.’s confinement was merely incidental to “a protracted sequence of

violent, nonconsensual sexual acts spanning the course of four to five hours

. . . [that] were integral parts of a single course of uninterrupted criminal

conduct.” Id. at 525. In making that determination, the Appellate Division

emphasized the fact that there was no “interruption in the ongoing sexual

abuse during the period of confinement” and that defendant neither “moved

C.M. off the porch” for the purpose of isolating her from public view nor

bound or gagged her. See id. at 525-27. It also found that defendant’s cutting

off C.M.’s clothes was “part of and incident to the sexual abuse.” Id. at 527.




                                        10
      The Appellate Division summed up its justification for dismissing the

kidnapping conviction by stating that, “[w]hile C.M. remained vulnerable to

repeated, indeed incessant criminal attack throughout her hours-long ordeal,

her isolation and vulnerability was coextensive and coterminous with the

sexual abuse.” Id. at 528.

      We granted the State’s petition for certification,  239 N.J. 398 (2019),

and its motion to stay the judgment of the Appellate Division.

                                       II.

                                       A.

      The State submits that defendant’s restraint of C.M. for nearly five hours

-- during which he verbally, physically, and repeatedly sexually assaulted her;

took money from her; stripped her of her clothing; and threatened future

assaults -- constitutes a substantial period of confinement for purposes of the

kidnapping statute. The State maintains that C.M.’s extended confinement was

not merely incidental to the underlying sexual offense but rather exposed C.M.

to further harm -- the continued physical and sexual attacks and threats of

violence.

      The State claims that the Appellate Division “utterly failed to take into

account” the length of the confinement, which permitted the commission of

other crimes. It dismisses the notion advanced by the Appellate Division that

                                       11
“uninterrupted sexual abuse” or a “continuous sexual attack” that overlaps

with the period of confinement renders the kidnapping statute inapplicable . It

adds, moreover, that “it would have been impossible for defendant to commit

all those heinous acts without any interruptions or breaks.”

      Finally, the State contends that the Appellate Division wrongly

suggested that C.M. was not sufficiently isolated on the porch and that the

outcome of this kidnapping-by-confinement case might “have been different

had defendant moved C.M. off the porch and into the interior of the abandoned

home because it would have made her more vulnerable.” The State asks this

Court to reinstate defendant’s kidnapping conviction.

                                       B.

      Defendant urges the Court to affirm largely for the reasons expressed in

the Appellate Division opinion. Defendant argues that the kidnapping statute

does not apply here “because the confinement was inherent in and limited to

the commission of the sexual offense.” In short, defendant states that a sexual

offense is not a kidnapping when “the confinement begins and ends with the

commission of the sexual offense.” Following that theme, defendant contends

that kidnapping-by-confinement requires proof -- not present here -- that the

confinement exceeded the time necessary to commit the underlying crimes and




                                       12
that the confinement “significantly enhanced the risk of harm beyond that

posed by the [underlying] crimes.”

      Defendant emphasizes that he did not force or lure C.M. onto the porch,

tie her up or lock her away, or move her to an isolated location. He also

stresses that he was acquitted of threatening her with a knife to keep her on the

porch. Finally, defendant asserts that the Appellate Division merely applied

“settled principles in concluding that the confinement was an integral part of

the [underlying] offense and that it did not significantly add to the victim’s

isolation or risk of harm.”

                                       III.

                                        A.

      In deciding this appeal, we must resolve two issues. First, we must

determine the scope of kidnapping-by-confinement under  N.J.S.A. 2C:13-1(b).

That is a matter of statutory interpretation, and therefore our standard of

review is de novo. See State v. Scriven,  226 N.J. 20, 33 (2016). We owe no

deference to the Appellate Division unless persuaded by the soundness of the

reasoning in its opinion. Ibid. Second, viewing the evidence in the light most

favorable to the State, we must decide whether the State presented sufficient

evidence for a reasonable jury to convict defendant on the kidnapping charge.

See R. 3:18-1; Williams,  218 N.J. at 594.

                                        13
      We begin our analysis with the relevant language of the kidnapping

statute that applies to this case.

                                         B.

       N.J.S.A. 2C:13-1(b) provides that “[a] person is guilty of kidnapping if

he unlawfully removes another . . . a substantial distance from the vicinity

where he is found, or . . . unlawfully confines another for a substantial period”

with the purpose “(1) [t]o facilitate commission of any crime or flight

thereafter [or] (2) [t]o inflict bodily injury on or to terrorize the victim or

another.” (emphasis added). The kidnapping statute also provides that “[a]

removal or confinement is unlawful . . . if it is accomplished by force, threat,

or deception.”  N.J.S.A. 2C:13-1(d) (emphasis added). Additionally, unless

the defendant “releases the victim unharmed and in a safe place prior to

apprehension,” kidnapping is a crime of the first degree.  N.J.S.A. 2C:13-

1(c)(1). Our kidnapping statute is patterned on the Model Penal Code. See

Masino,  94 N.J. at 444-45.

      First-degree kidnapping is one of the most serious crimes listed in the

New Jersey Code of Criminal Justice and is punishable by “an ordinary term of

imprisonment between 15 and 30 years.” See  N.J.S.A. 2C:13-1(c)(1). One of

the distinguishing characteristics of kidnapping, as explained in the

commentaries to our Code, is that “if the offense is properly defined so as to

                                         14
be limited to substantial isolation of the victim from his normal environment, it

reaches a form of terrifying and dangerous aggression not otherwise

adequately punished.” 2 The New Jersey Penal Code: Final Report § 2C:13-1

cmt. 3 at 182 (Criminal Law Revision Comm’n 1971) (quoting Model Penal

Code § 212.1, cmt. 1 at 15 (Am. Law Inst., Tentative Draft No. 11, 1960)).

      The effort to define and limit the scope of the kidnapping statute is

evident in the statutory language chosen by the Legislature, requiring that a

conviction be premised on removing a victim a “substantial distance” or

confining a victim “for a substantial period.” See  N.J.S.A. 2C:13-1(b). The

Legislature apparently chose the term “substantial” to prevent an overly broad

reading of the new kidnapping statute -- and therefore addressed a criticism of

the predecessor statute. Final Report § 2C:13-1 cmts. 3 & 4 at 181-84.

      The Model Penal Code commentaries give insight into the rationale of

the substantiality requirement adopted by our Legislature. Model Penal Code

§ 212.1 cmts. 2 & 3 at 222-23 (Am. Law Inst. 1980). That requirement

“confine[s] [kidnapping] to instances where the degree of removal or the

duration of confinement coupled with the purpose of the kidnapper render the

conduct especially terrifying and dangerous.” See Model Penal Code § 212.1

cmt. 3 at 223. In that scenario, “the removal or confinement of the victim




                                       15
exposes him to risk of serious bodily injury or amounts to a form of

terrorizing.” Model Penal Code § 212.1 cmt. 2 at 222.

      The statutory terminology -- removing a victim a “substantial distance”

or confining a victim “for a substantial period” -- is not self-defining. See

 N.J.S.A. 2C:13-1(b). In a series of cases -- State v. Masino,  94 N.J. 436, State

v. La France,  117 N.J. 583, and State v. Jackson,  211 N.J. 394 (2012) -- this

Court has provided guiding principles for determining when a defendant has

committed a kidnapping by removing a victim a “substantial distance” or

confining a victim “for a substantial period.” A kidnapping is criminal

conduct that is “not ordinarily inherent in the underlying criminal conduct

itself” or “merely incidental to the underlying crimes.” La France,  117 N.J. at
 589-90. “[N]ot every movement or confinement of a victim is a kidnapping.”

Id. at 586. The commission of a robbery or a sexual assault necessarily

requires a confinement of the victim, but, unless the period of confinement is

substantial, a robbery or sexual assault is not transformed into a kidnapping.

      A kidnapping does not occur, for example, when “the burglar puts the

householder in the closet while he fills his sack with the silver,” id. at 587

(quoting State v. Estes,  418 A.2d 1108, 1113 (Me. 1980)), or when “the victim

of a robbery is forced to open a safe in the home or go to the back of the




                                        16
store,” ibid. (citing State v. Dix,  193 S.E.2d 897, 902 (N.C. 1973)); see also

Final Report § 2C:13-1 cmt. 4 at 184.

      The substantial-distance-removal and substantial-period-of-confinement

requirements address a scenario where a defendant “isolates the victim and

exposes him or her to an increased risk of harm.” See Masino,  94 N.J. at 445;

see also La France,  117 N.J. at 592-93. Indeed, “the legislature realized that

the risk of harm attendant upon isolation is the principal danger of the crime.”

Masino,  94 N.J. at 446. The “enhanced risk of harm,” however, “must not be

trivial.” Id. at 447; accord La France,  117 N.J. at 594.

      Removing a victim a substantial distance or confining a victim for a

substantial period are qualitative terms, for sure, but they are also quantitative

terms, even though the distance and durational requirements are not

susceptible to a neat mathematical formulation. See La France,  117 N.J. at
 590-91. We have upheld kidnapping convictions where the linear removal

from one location to another has not been relatively far, but where the victim’s

isolation, sense of helplessness, and enhanced risk of harm have been great in

light of the underlying crimes. See, e.g., Jackson,  211 N.J. at 418-19; Masino,

 94 N.J. at 447. We also have upheld a conviction where the period of

confinement was not relatively long, but where the terror and depraved acts




                                        17
committed against the victims combined with their isolation and helplessness

have been severe. See La France,  117 N.J. at 592-94.

      But the substantiality requirement has a durational component as well.

For kidnapping purposes, a confinement may be incidental to another crime

when the confinement is of minimal duration; however, a prolonged

confinement “may not be considered incidental to another crime.” See Frank

J. Wozniak, Annotation, Seizure or Detention for Purpose of Committing

Rape, Robbery, or Other Offense as Constituting Separate Crime of

Kidnapping, 
39 A.L.R. 5th 283, § 2(a) (1996) (collecting cases); see also State

v. Warner,  626 A.2d 205, 207-09 (R.I. 1993) (affirming kidnapping conviction

because “the [four-to-five-hour] duration of time . . . made it far more than

incidental to any [sexual assault] attempts by defendant”); State v. Lykken,

 484 N.W.2d 869, 878 (S.D. 1992) (affirming convictions of kidnapping

because a reasonable jury could have concluded that the three-and-a-half-hour

confinement “increased the risk of harm to [the victim], especially since she

was repeatedly raped”).

      The following example elucidates the point. Pointing a firearm at a

person, contrary to  N.J.S.A. 2C:12-1(b)(4), and uttering terroristic threats

against that person, contrary to  N.J.S.A. 2C:12-3(a), are discrete crimes under

the Code. But continuously pointing a weapon and uttering terroristic threats

                                       18
at a person while she is confined for a period of ten hours is substantively

different -- it is a kidnapping even if the weapon-pointing and terroristic

threats are entirely coextensive with the confinement because of the isolation,

helplessness, and enhanced harm (not just enhanced risk of harm). Cf. La

France,  117 N.J. at 593.

                                       C.

      Masino, La France, and Jackson illustrate the application of the

principles discussed. In Masino, the defendant was offended that the victim

would not dance with him at a disco or have coffee with him later that evening .

See  94 N.J. at 437-38. After the victim dropped off a friend, the defendant

pulled her from her car, beat her, dragged her across a street, through trees,

and down to a pond where he plunged her head in the water, sexually assaulted

her, then took her clothes and left. Ibid. Although the linear distance that the

defendant removed the victim from the car to the pond may not have been far

in absolute terms, it was “more than merely incidental to the underlying crime”

because the distance travelled isolated the victim and enhanced the risk of

harm to her. See id. at 446-47.

      We upheld the kidnapping conviction in Masino but struck a note of

caution, warning prosecutors that our decision should not be read “as




                                       19
encouragement for use of a kidnapping charge as some sort of 'bonus’ count in

an indictment.” Id. at 447-48.

      In La France, we upheld a jury verdict of first-degree kidnapping by

confinement.  117 N.J. at 585. In that case, while committing a burglary in the

early morning hours, the defendant encountered the homeowners, a husband

and his seven-month pregnant wife. Id. at 585, 591-92. Pretending to have a

gun, the defendant “forced the wife to tie up her husband in the bedroom” and

then dragged her into the hallway and sexually assaulted her. Id. at 592. The

husband unbound himself more than thirty minutes later and subdued the

defendant. Id. at 592-93.

      We held that the jury could have rationally concluded that the thirty-

minute confinement of the husband constituted a “substantial period” because

the husband was left isolated while the defendant sexually assaulted and

terrorized his wife. Ibid. We determined that the confinement was “more than

merely incidental to the underlying crime,” id. at 594 (quoting Masino,  94 N.J.

at 447), given the psychological injury caused by the sordid acts committed

against the couple “and the inability of the isolated husband to avert the terror

to his wife and injury to her and their unborn child,” id. at 593.

      In Jackson, we found that the State had presented sufficient evidence to

support either a substantial-distance-removal kidnapping or a substantial-

                                        20
period-confinement kidnapping.  211 N.J. at 400, 418. In that case, the

defendant entered the victim’s taxi at a stoplight, pointed a gun at the taxi

driver’s chest, and took from him sixty-five dollars in collected fares and

money from his wallet. Id. at 400-01. The defendant ordered the victim to

drive him to Broadway in Paterson. Id. at 401-02. At gunpoint, the taxi driver

drove 0.8 miles, approximately fifteen city blocks, to a location where the

defendant directed him to pull over and fled. Id. at 402, 418.

      In upholding the kidnapping conviction on the removal and confinement

theories, we emphasized that the gun-wielding defendant “kept the victim in an

isolated and vulnerable position,” compelling him to drive “for several

minutes, through city streets, exposing him to the risk of a serious accident,

injury or death.” Id. at 419. We concluded that the victim was “exposed to a

substantially extended confinement and a substantially increased risk” that

“was not coextensive with the armed robbery.” Ibid.

                                       IV.

      We now distill the principles from Masino, La France, and Jackson, as

well as from the commentaries to the New Jersey Code of Criminal Justice and

the commentaries to the Model Penal Code, and apply them to the evidence in

this case.




                                        21
      Defendant confined C.M. on the covered porch of an abandoned house at

knifepoint for approximately four to five hours in the early morning dark

leading to sunrise. During those terrifying hours, he punched her so hard that

her body crashed against a wall, causing a head wound and blood to course

over her face. He punched her again later for bleeding on him. He sexually

assaulted her repeatedly over those hours, forcing her to perform oral sex and

penetrating her vaginally and anally, and invited his friend to penetrate her

anally. He ignored her pleas to stop, took money from her, cut off her clothes,

leaving her exposed, and threatened to return every night to “pimp” her.

      The sheer duration of the confinement and the number of depraved and

violent acts committed against her far exceeded the scenarios in Masino, La

France, and Jackson, in which we upheld kidnapping convictions. C.M. was

isolated on a porch in the early morning dark -- confined by brute force and

terrifying violence. See Masino,  94 N.J. at 446 (“[T]he risk of harm attendant

upon isolation is the principal danger of [kidnapping].”). She was not only

subject to an “enhanced risk of harm,” one of the defining characteristics of

kidnapping by confinement, but she was harmed by the multitude of criminal

acts committed against her. See id. at 447.

      Indeed, this case represents a classic example of kidnapping by

confinement. Here, the nature of the confinement not only subjected C.M . “to

                                       22
substantial isolation,” but also “reache[d] a form of terrifying and dangerous

aggression not otherwise adequately punished.” See Final Report § 2C:13-1

cmt. 3 at 182 (quoting Model Penal Code § 212.1, cmt. 1 at 15 (1960)).

      In our view, the sheer duration of the confinement combined with the

crimes committed against her alone meet the “substantial period” requirement

-- even if the repetitive acts of sexual abuse and the physical assaults were co-

extensive with the prolonged confinement. See  N.J.S.A. 2C:13-1(b). We

therefore reject the Appellate Division’s conclusion that a kidnapping did not

occur because the “incessant criminal attack throughout [C.M.’s] hours-long

ordeal, [and] her isolation and vulnerability [were] coextensive and

coterminous with the sexual abuse.” See Cruz-Pena,  459 N.J. Super. at 528.

This case meets all of the statutory criteria for first-degree kidnapping:

defendant confined C.M. for a substantial period with the purpose to facilitate

the commission of sexual crimes and aggravated assault and to terrorize C.M.,

see  N.J.S.A. 2C:13-1(b); he accomplished the confinement by force and threat,

see  N.J.S.A. 2C:13-1(d); and he did not release C.M. unharmed and in a safe

place before his apprehension, see  N.J.S.A. 2C:13-1(c)(1).

      The concern expressed in Masino about the potential for prosecutorial

overreach in transposing a kidnapping charge over a substantive crime -- a

“'bonus’ count in an indictment” -- is not present here. See Masino, 94 N.J. at

                                        23
448. The evidence in this case, viewed in the light most favorable to the State,

clearly established an ample basis for a reasonable jury to return a verdict of

first-degree kidnapping beyond a reasonable doubt. See Williams,  218 N.J.
 594; R. 3:18-1. The trial court properly denied defendant’s motion for a

judgment of acquittal.

                                       V.

      For the reasons expressed, we reverse the judgment of the Appellate

Division and reinstate defendant’s first-degree kidnapping conviction. We

remand to the Appellate Division to address defendant’s previously raised

challenge to his sentence.



      CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.




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