STATE OF NEW JERSEY VS. PORFIRIO A. NUNEZ-MOSQUEAÂ (12-08-1139 AND 12-08-1142, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2594-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PORFIRIO A. NUNEZ-MOSQUEA,
Defendant-Appellant.
____________________________
Submitted March 29, 2017 – Decided August 24, 2017
Before Judges Accurso, Manahan and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Nos. 12-08-1139 and 12-08-1142.
Joseph E. Krakora, Public Defender, attorney
for appellant (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on
the brief).
Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent (Joie
Piderit, Assistant Prosecutor, of counsel
and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
On March 30, 2012, twenty-year-old Y.S. was walking in
downtown New Brunswick to catch a bus for work, when a man,
later identified as defendant Porfirio A. Nunez-Mosquea,
approached her with a gun and forced her into his van. Although
it was only a few minutes after 6:00 a.m., two witnesses saw the
struggle and called the police. One of the witnesses reported
seeing a Hispanic or light-skinned black male, aged nineteen to
twenty, wearing a pullover polo shirt and jeans, wrestling with
a young, Muslim woman, whom the witness recognized from her
morning routine. The other saw the man forcing the woman
through the sliding door of a red minivan, and managed to
glimpse the first three characters of the license plate, "G40."
Y.S. testified at trial that after forcing her into his
van, defendant drove her at gunpoint to a house not far away.
On the way, defendant told her that her cousin paid him to do
it, and he would shoot her if she screamed or did "anything
crazy." Y.S., a recent immigrant from Egypt, told him she had
no cousins, although that statement was not true. When
defendant directed her to get out of the van, still at gunpoint,
he told her not to do anything that would draw attention to the
two of them. Y.S. did as she was told, leaving her purse but
taking her phone, a white iPhone in a pink bunny case.
2 A-2594-14T4
Defendant led her to a dark basement where he made her
kneel on the floor facing a wall. After directing her to remove
her headscarf, defendant tightly tied Y.S.'s hands behind her
back with it. He gagged and blindfolded her and used scissors
to cut through the tank top she was wearing underneath her
cardigan. He touched her breasts underneath her bra, and made
her stand as he pulled her jeans, leggings and underwear down
below her knees. He told her he wanted to take pictures of her
to embarrass her.
When she was again made to kneel on the floor, she heard
plastic ripping and a zipper, leading her to think he was
putting on a condom. When defendant made her stand again and
touched her vagina, she began to scream uncontrollably.
Defendant came from behind her, putting his hand over her gagged
mouth and holding a gun to her head. She scratched at his
thighs and felt his penis through the condom. When she would
not stop screaming, defendant placed a heavy plastic bag over
her head and held it against her mouth, preventing her from
breathing.
Defendant kicked at her feet, making her fall to the floor
on her back. He had one hand between her legs and was using the
other one to hold her down. She testified the bag was still on
her head, making it impossible to breathe, but she was so scared
3 A-2594-14T4
she could not stop screaming even as he threatened to kill her.
She testified she was choking and started to kick her feet in an
effort to get air. When she could finally get herself to stop
screaming, defendant removed the bag from her head. Saying he
needed to wash her hands because she had scratched him with her
nails, he walked her to a sink in another room.
As he sprayed something on her hands, still tied behind her
back, and brushed her nails, he asked her if there was a reason
she could not have sex with him. She told him she could not
have sex before marriage, that her family would kill her, and
that he would ruin her whole future. He responded that he would
have to "pass [her] out so he could have sex with [her]." She
testified that she "started saying no, please no, please," and
started screaming again.
He told her to calm down and led her back to kneel again on
the floor, and said, "let me go talk to him. . . . I'll be
back." When defendant returned, he told her "he wants to jerk
off." Y.S. did not understand. When defendant explained, she
started screaming again. He told her to stop and that he would
"talk to him." Defendant again left the room briefly. When he
returned, he told Y.S. he was "trying to make him let [her] go,"
and that defendant "didn't know he's such a psycho." Defendant
told her he was trying to "get [her] out of [there]" and asked
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if she trusted him. Believing that defendant might let her go,
she told him she trusted him and asked him to help her.
After several more rounds of defendant leaving and coming
back, he told her he was going to let her go. He pulled up her
pants and tried to cover her with her scarf and what remained of
her shirt. He untied her and removed her gag and blindfold. As
he led her out, she looked at him. Still holding the gun, he
told her not to look at him, and that there were "five other
guys out there" that would shoot her if she did anything. He
walked her up the stairs and down the street and left her,
telling her not to look back.
Y.S. ran into the nearest business and asked the woman
behind the counter to call the police. The 911 call was played
for the jury and the prosecutor played it again during her
summation. When the police arrived, Y.S. walked them back to
the place she believed she was held captive, where they
recovered her headband, condom wrappers, the plastic bag
defendant put over her head, as well as scissors and a rag. The
owner of the house advised that defendant had lived in the
basement and still had keys.
Going to defendant's new address, the police found a maroon
dodge Caravan outside with a license plate beginning "G40."
Looking through the window, they saw a woman's handbag, later
5 A-2594-14T4
identified as belonging to Y.S. Defendant was sleeping naked
when the police roused him. When he got out of the bed,
officers noticed scratches on both his thighs. DNA recovered
from under Y.S.'s nails revealed that defendant and his paternal
male relatives could not be excluded as possible contributors to
the sample.
From defendant's apartment and van, police recovered a blue
shirt, jeans and a striped jacket that Y.S. identified as the
same ones worn by her attacker, as well as her purse, her
college I.D., and her iPhone and bunny case. They also
recovered a gun, which defendant's stepfather identified as one
stolen from him a few weeks earlier. Although Y.S. identified
her attacker's clothes and identified defendant as her attacker
at trial, she did not pick him out of a photo array shortly
after his arrest.
Y.S. was examined by a Sexual Assault Response Team
Coordinator, who testified at trial that Y.S. reported
"headache, body ache, upper arms and shoulders and left inner
aspect of the left elbow, pain." The witness testified she
found dried blood on Y.S.'s headscarf and injuries in her mouth,
on her face, wrist and elbow:
[T]he inner aspect of her — her left upper
cheek was cut. She had dried blood on the
crack where the upper lip meets the lower
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lip and she had an abrasion on her lip. And
then she had stated that her hands were
bound behind her back and there was a,
approximately a half a centimeter red
scratch on her right, right wrist.
A bruise the size of about a quarter which
was . . . purple and that's where she
had — was complaining that she had pain
prior in the report. . . . The inner aspect
of the left elbow.
Y.S. testified to those physical injuries and to a bruise
on her back from when defendant made her fall. She also
described the emotional harm she suffered as well.1 When asked
how her abduction and assault made her feel, she responded that
she "thought [she] was going to die."
I felt insecure, helpless. I wasn't in
control of myself or anything. It affected
my relationship with my parents. I thought
I was going to die. I'm so unconfident. I
just — weak. I can't focus at school. I —
I can't concentrate, and that's not me.
I'm, like, a good student. It's affected me
— it's affected my entire life. I don't
feel like I'm the same person.
At the charge conference, defendant requested a
modification of the model charge for first-degree kidnapping.
Relying on State v. Sherman, 367 N.J. Super. 324 (App. Div.),
certif. denied, 180 N.J. 356 (2004), overruled in part on other
1
The trial judge excluded the State's evidence that Y.S. was
taking prescribed anti-depressant and anti-anxiety medications
because the information had not been provided to defense counsel
in advance of trial.
7 A-2594-14T4
grounds, State v. Dalziel, 182 N.J. 494, 504 (2005), defendant
requested the court modify the model charge to distinguish
between the type of harm occurring in every kidnapping from the
harm the State must prove to secure a conviction. He asked that
the charge include that "minimal or insubstantial injuries are
insufficient to establish physical harm. The harm component
must be distinguished from the type of harm inherent in every
kidnapping. Inherent means involved in the essential character
of something." Defendant contended that language in Sherman
acknowledged a difference between emotional and psychological
harm sufficient to satisfy the statute and "the type of harm
inherent in every kidnapping," he argued that distinction should
apply to all harm, not merely psychological harm.
Judge Pincus denied the request, finding a defendant is
entitled to a jury instruction on first-degree kidnapping that
makes clear the State is required to prove the defendant
knowingly caused emotional, physical, or psychological harm, or
knowingly released the victim in an unsafe place, but is not
"entitled to an instruction that the harm component must be
distinctive from the kind of harm inherent in every kidnapping."
The judge accordingly delivered the model charge on first-degree
kidnapping in effect at the time of trial, with no alterations.
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The jury convicted defendant of two counts of first-degree
kidnapping, N.J.S.A. 2C:13-1b; second-degree attempted
aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-
2a; third-degree attempted aggravated criminal sexual contact,
N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3a; third-degree terroristic
threats, N.J.S.A. 2C:12-3b; second-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4a; second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and third-
degree criminal restraint, N.J.S.A. 2C:13-2. The jury acquitted
him of attempted murder, two counts of invasion of privacy and
receiving stolen property. Following the verdict, defendant
pled guilty to a second-degree certain persons offense, N.J.S.A.
2C:39-7b, charged in a separate indictment. As to the "unharmed
release" element of first-degree kidnapping, the jury found
defendant released Y.S. in a safe place prior to apprehension,
but also found he knowingly harmed her.
Defendant moved for a new trial, arguing he was entitled to
the modification to the instruction on kidnapping he had
requested, and that the State had failed to prove the "unharmed
release" element elevating kidnapping to a first-degree offense.
Judge Pincus denied the motion. She found:
In this case, Y.S. was removed from the
street at gun point by defendant, who was a
stranger. Brought to the basement of an
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unknown isolated residence. Bound, gagged
and blindfolded. Had her clothes ripped
off, her breasts and vaginal region touched,
and was threatened with a gun throughout the
course of this ordeal.
Y.S., fearing that defendant was about
to sexually assault her as a result of
hearing him unzip his pants and rip open a
condom, began to scream. To stop her from
screaming, defendant took a thick plastic
bag, put it over her head with his hand on
top of the portion of the bag that was over
her mouth so that she could not breathe.
He continued to tell her to stop
screaming, and when she did not comply he
kicked her feet out from under her which
caused her to fall on her back. The plastic
bag was still on her head and defendant’s
hand was between her legs as he held her
down.
Y.S. was kicking and screaming because
she could not breathe. She – there was
blood on the area of her head as a result of
being – as a result of the defendant's
actions, and she suffered other injuries,
including cuts to her mouth and wrist, and
bruises to her elbow.
The defendant argues that Y.S. suffered
only minimal and insubstantial injuries . .
. . And just to be clear, the defendant's
argument that she suffered only minimal and
insubstantial injuries which would be
insufficient to prove physical harm is
clearly contradicted by those facts.
Y.S.'s injuries were neither minimal
nor insubstantial. Clearly, based on these
facts, the jury could have found that Y.S.
suffered physical injuries which would
satisfy the element of first-degree
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kidnapping in that Y.S. was not released
unharmed.
The judge distinguished a recent unpublished decision from
our court in which we held the testimony regarding the victim's
emotional state following the defendant's confinement of her in
her own apartment was insufficient evidence of harm to support
defendant's conviction for first-degree kidnapping. In that
case, Judge Pincus noted
the victim knew the defendant and did not
suffer any physical injuries whatsoever.
While in our case the defendant, who was a
stranger to Y.S. and a situation in which
Y.S. was physically harmed, in that she was
bound, gagged, blindfolded, suffocated,
smothered, kicked, had cuts on her mouth and
wrist, scratches on her hand, bruises to her
elbow and back, and was knocked to the
ground, and there was bleeding in the area
of her head.
There is no requirement that the State
prove Y.S's injuries through medical
evidence. And the jury could have
reasonably come to the determination that
Y.S. suffered physical harm based on her
testimony as to what transpired during the
kidnapping.
Consequently there was no requirement
for the jury to be given the instruction
that the harm must exceed that which is
inherent in every kidnapping. And this
court is not addressing Y.S.'s psychological
or emotional trauma as it is not necessary
for the purpose of this motion, but I do
recognize that Y.S. testified she felt like
she was going to die. Her relationship with
her parents suffered. She felt insecure and
11 A-2594-14T4
helpless. She lost her ability to
concentrate at school.
The judge concluded the charge both conformed to the
holding in Sherman and followed the model charge, and that the
jury applied the law as instructed and determined defendant
knowingly harmed Y.S. She found the jury's verdict finding
defendant guilty of first-degree kidnapping was not against the
weight of the evidence and did not result in a manifest denial
of justice under the law and thus denied the motion.
Following appropriate mergers, Judge Pincus sentenced
defendant to twenty-five years in State prison for first-degree
kidnapping subject to the periods of parole ineligibility and
supervision required by the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2; to a consecutive seven-year NERA term for
second-degree attempted aggravated sexual assault subject to
parole supervision for life pursuant to N.J.S.A. 2C:43-6.4; a
concurrent seven-year term for second-degree unlawful possession
of a weapon subject to three years' parole ineligibility under
the Graves Act, N.J.S.A. 2C:43-6c; and to a consecutive seven-
year term on second-degree certain persons not to have weapons
subject to five years' parole ineligibility pursuant to N.J.S.A.
2C:39-7b.
Defendant appeals, raising the following issues:
12 A-2594-14T4
POINT I
THE TRIAL JUDGE'S ERROR IN FAILING TO
PROPERLY INSTRUCT THE JURY ON THE HARM
ELEMENT OF THE FIRST-DEGREE KIDNAPPING
CHARGE DEPRIVED NUNEZ-MOSQUEA OF HIS RIGHTS
TO A FAIR TRIAL AND DUE PROCESS.
POINT II
NUNEZ-MOSQUEA WAS DEPRIVED OF HIS RIGHT TO A
FAIR TRIAL WHEN THE TRIAL JUDGE REFUSED TO
DECLARE A MISTRIAL AFTER THE JURY TALKED,
DURING AND AFTER DELIBERATIONS, ABOUT THE
FACT THAT NUNEZ-MOSQUEA'S LAWYER WAS
APPOINTED BY THE PUBLIC RATHER THAN PRIVATE,
AND THE EXPENSE OF THE TRIAL.
POINT III
THE SENTENCING JUDGE ERRED IN APPLYING
AGGRAVATING TWO BY DOUBLE COUNTING THE HARM
THAT ELEVATED THE KIDNAPPING OFFENSE TO THE
FIRST-DEGREE LEVEL, RESULTING IN A
MANIFESTLY EXCESSIVE TWENTY-FIVE-YEAR NERA
TERM.
He adds the following points in a pro se brief.
POINT I
APPELLANT WAS DEPRIVED OF DUE PROCESS OF LAW
AND FAIR TRIAL GUARANTEED BY THE FIFTH,
SIX[TH] AND FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION, WHEREBY, THE
TRIAL COURT FAILED TO PROVIDE THE JURY WITH
A COMPLETE IDENTIFICATION CHARGE.
SPECIFICALLY, THE CROSS-RACIAL
IDENTIFICATION LACKED THE MOST ESSENTIAL
COMPONENTS OF THE STANDARD MODEL CHARGE.
POINT II
APPELLANT WAS DEPRIVED OF DUE PROCESS OF LAW
AND FAIR TRIAL GUARANTEED BY THE FIFTH,
13 A-2594-14T4
SIX[TH] AND FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION, WHEREBY, STATE
FAILED TO PROVE CRITICAL ELEMENT OF "SEXUAL
PENETRATION" REQUIRED BY THE CHARGE OF
SECOND-DEGREE ATTEMPTED AGGRAVATED ASSAULT
PURSUANT TO N.J.S.A. 2C:5-1 AND N.J.S.A.
2C:14-2A COUNT FOUR.
POINT III
IMPOSITION OF DEFENDANT'S SENTENCES BEYOND
THE STATUTORY MAXIMUM BASED ON JUDICIAL
FACT-FINDING OF AGGRAVATING FACTOR WHICH WAS
NEVER ADMITTED TO BY DEFENDANT OR SUBMITTED
TO A JURY AND PROVED BEYOND A REASONABLE
DOUBT VIOLATED BOTH HIS STATE AND FEDERAL
CONSTITUTIONAL RIGHTS.
POINT IV
THE CUMULATIVE EFFECT OF THE ERRORS
COMPLAINED OF RENDERED THE TRIAL UNFAIR.
Having considered defendant's arguments in light of the facts
and the applicable law, we affirm.
The grading provision of the kidnapping statute, N.J.S.A.
2C:13-1c(1), provides, as pertinent here, that "kidnapping is a
crime of the first degree . . . [but i]f the actor releases the
victim unharmed and in a safe place prior to apprehension, it is
a crime of the second degree." There is no question but that
harming or failing to release the victim is an element the State
must prove in order to secure a conviction for first-degree
kidnapping. State v. Federico, 103 N.J. 169, 174 (1986); State
14 A-2594-14T4
v. Casilla, 362 N.J. Super. 554, 566-67 (App. Div.), certif.
denied, 178 N.J. 251 (2003).
We construed the "unharmed release" provision in Sherman, a
case involving the kidnapping of a six-year-old child for
ransom. 367 N.J. Super. at 332. After abducting the child and
holding her at his mother's home for nearly twenty-four hours,
where he built her a "fort" from cushions, fed her Cheerios,
yogurt and apple juice, let her watch cartoons and provided her
with a book and a game when he left her alone for ten minutes to
make a ransom call, the defendant had a change of heart and
decided to return the child to her parents. Id. at 332-33. He
dropped her at a shopping mall shortly after it opened with
instructions "to run to the first adults she saw and tell them
the police were looking for her." Id. at 333.
The child quickly happened upon a school teacher, who
reported her as "composed and not in any distress." Ibid.
Although an examination of the child revealed her "in good
condition, with no sign of physical injury or emotional
distress," and she reported that "the man that took her treated
her nicely," she subsequently experienced nightmares, anxiety,
and a fear of again being kidnapped and was diagnosed with post-
traumatic stress disorder. Id. at 333-34.
15 A-2594-14T4
Although we reversed the defendant's first-degree
kidnapping conviction, based on the denial of his in limine
motion to modify the jury charge to reflect the State's
obligation to prove unharmed release beyond a reasonable doubt,
we rejected his argument that the child's anxiety, nightmares
and fear constituted only minimal emotional or psychological
harm insufficient to support first-degree kidnapping. Id. at
330-31, 342. We held that the "harm" in the unharmed release
provision of N.J.S.A. 2C:13-1c, includes emotional or
psychological harm suffered by the victim. Id. at 330. We also
held that "disproving unharmed release is a 'material' element
of the crime of first-degree kidnapping, requiring the State to
prove that a defendant 'knowingly' harmed or 'knowingly'
released the victim in an unsafe place." Ibid. We concluded
that
the "harm" component of the unharmed release
provision contained in N.J.S.A. 2C:13-1c
focuses on the conduct of the kidnapper
during the purposeful removal and holding or
confining of the victim, as distinguished
from the type of harm inherent in every
kidnapping. Therefore, when a victim is
released in a safe place prior to the
kidnapper's apprehension, as [in Sherman],
in order to prove that the kidnapper is
guilty of first-degree kidnapping, the State
must prove beyond a reasonable doubt that
the kidnapper knowingly caused physical,
emotional or psychological harm to the
victim.
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[Sherman, supra, 367 N.J. Super. at 330-31.]
In reaching that conclusion in Sherman, we relied on our
opinion in State v. Tronchin, 223 N.J. Super. 586, 594 (App.
Div. 1988), a case involving the sexual assault of a woman who
had voluntarily accepted a ride from the defendant. Although
finding the State did not prove kidnapping in that case as the
victim was neither "confined" nor "removed," we soundly rejected
the notion that the victim of a second-degree sexual assault
"suffered neither physical nor emotional injury, and was thus
released unharmed, N.J.S.A. 2C:13-1c(1)." Id. at 594 n.4.
Following our opinion in Sherman, the model charge for
first-degree kidnapping was amended to provide that the State
must prove the defendant "knowingly harmed" or "knowingly did
not release" the victim in a safe place prior to his
apprehension and that "[t]he 'harm' component can include
physical, emotional, or psychological harm." See Model Jury
Charge (Criminal), "Kidnapping – Permanent Deprivation of
Custody" (March 5, 2007). In accordance with the model charge,
the trial court instructed the jury as follows:
If you find that the State has proven
to you beyond a reasonable doubt that the
defendant committed the crime of kidnapping,
you must go on to determine whether the
State has also proven beyond a reasonable
doubt that the defendant knowingly harmed
17 A-2594-14T4
[Y.S.], or knowingly did not release her in
a safe place prior to apprehension.
The harm component can include
physical, emotional, or psychological harm.
In this case, the State alleges that
defendant bound, gagged, smothered, held a
gun to [Y.S.'s] head, and attempted to
sexually assault her. In the course of
doing so[,] defendant caused cuts to her
mouth, wrist, and bruises to her elbow. The
State alleges that [Y.S.] was traumatized as
a result of these crimes.
On the other hand, defendant contends
that he did not knowingly cause harm to
[Y.S.], and that she was released in a safe
place, a residential street, in daylight.
Several months after the trial, the model charge for first-
degree kidnapping was again revised with regard to what the
State must prove when alleging non-physical harm as follows:
If the State is contending that the victim
suffered emotional or psychological harm, it
must prove that the victim suffered
emotional or psychological harm beyond that
inherent in a kidnapping. That is, it must
prove that the victim suffered substantial
or enduring emotional or psychological harm.
[Model Jury Charge (Criminal), "Kidnapping"
(revised Oct. 6, 2014).]
Defendant, however, did not request a modification of the
charge as it related to the victim's psychological injuries. He
maintained he was entitled to a charge instructing the jury that
"minimal or insubstantial injuries are insufficient to establish
physical harm" and that "[t]he harm component must be
18 A-2594-14T4
distinguished from the type of harm inherent in every
kidnapping."
No New Jersey case of which we are aware has ever suggested
that there is a difference between the physical harm sufficient
to satisfy the released unharmed provision of the statute and
"the type of harm inherent in every kidnapping."2 Moreover,
2
The Supreme Court has previously rejected reliance on the
comments of the Criminal Law Revision Commission on which
defendant relies, proposing "to maximize the kidnapper's
incentive to return the victim alive, by making first degree
penalties apply only when the victim is not 'released alive in a
safe place.'" State v. Masino, 94 N.J. 436, 446 (1983).
Any argument that our legislature intended
to soften its treatment of kidnappers is
foreclosed by reference to an early draft of
2C:13-1, subsequently rejected, that
discussed a downgrading provision: "We
propose to maximize the kidnapper's
incentive to return the victim alive by
making first degree penalties apply only
when the victim is not 'released alive in a
safe place' . . . . Certainly those
formulations which authorize extreme
penalties unless the victim is 'liberated
unharmed' are unsatisfactory . . . ."
[Final Report of the New Jersey Criminal Law
Revision Commission, vol. II: Commentary
(1971) at 187] (emphasis added). As it
turned out, of course, the legislature did
ultimately authorize first degree sentences
of 15 to 30 years unless the victim was
released unharmed. N.J.S.A. 2C:13-1(c).
[Ibid.]
The Sherman court likewise rejected any argument that by
employing the word "unharmed" the Legislature intended it "to
19 A-2594-14T4
while we accept that "[i]t may be possible that some types of
injury would be of such trifling nature as to be excluded from
the category of injuries which [the Legislature] had in mind,"
Robinson v. United States, 324 U.S. 282, 285, 65 S. Ct. 666,
668, 89 L. Ed. 944, 946-47 (1945), the harm inflicted on Y.S.,
whom the court aptly described as having been "bound, gagged,
blindfolded, suffocated, smothered, [and] kicked" to the ground
in the course of an attempted aggravated criminal sexual contact
and attempted aggravated sexual assault, resulting in "cuts on
her mouth and wrist, scratches on her hand, [and] bruises to her
elbow and back," plainly was not of that trifling character.
See Tronchin, supra, 223 N.J. Super. at 594 n.4.
Likewise, we do not fault the trial judge for not modifying
the charge regarding emotional harm sua sponte in anticipation
of the revision adopted several months after the trial. That
revision, although apparently based on Sherman, was not made for
ten years following our opinion in that case. More important,
the error, if there was one, was undoubtedly harmless as there
was ample evidence on this record to permit the jury to find
mean only that the victim suffered no bodily injury or no
serious bodily injury." 367 N.J. Super. at 343-44; see also
State v. Sewell, 127 N.J. 133, 135-36 (1992) (including in
"bodily injury" as defined in N.J.S.A. 2C:11-1, a sore leg,
back, hip, and chest with no bruising, and briefly elevated
blood pressure induced by collision with a fleeing thief).
20 A-2594-14T4
beyond a reasonable doubt that defendant knowingly inflicted
physical harm on Y.S. in the course of the kidnapping.
Defendant's argument with regard to alleged jury misconduct
warrants no discussion here. R. 2:11-3(e)(1)(E). The comments
by a single juror speculating on whether defendant was
represented by private counsel or the public defender were
promptly and appropriately addressed by the trial judge. The
judge questioned each juror individually as to whether the juror
recalled a conversation about "appointed attorneys versus
private attorneys" and instructed all who heard such comments
that the comments must play no role in their deliberations. The
jurors advised the judge they could follow her direction.
Judge Pincus proceeded in this matter exactly as the
Supreme Court directed in State v. R.D., 169 N.J. 551, 557-61
(2001). Her conclusion that the remarks were no more than "a
passing comment" having no effect on the jury's deliberations is
supported by the record and thus entitled to our deference. Id.
at 559. Defendant's contention that the remarks entitled him to
a mistrial are without merit.
We also reject defendant's argument that the trial judge
double counted in applying aggravating factor two, resulting in
a manifestly excessive twenty-five-year NERA term on the
kidnapping count. N.J.S.A. 2C:13-1c(1) provides the sentencing
21 A-2594-14T4
court discretion to sentence a defendant to between fifteen and
thirty years for first-degree kidnapping. State v. Megargel,
143 N.J. 484, 505 (1996). Although acknowledging that "factors
one and two are not easily found," Judge Pincus concluded that
"this is the case for which they are appropriate."
Specifically, the judge reasoned that factor one applied
because the kidnapping
was committed in an especially heinous,
cruel or depraved manner, in that Defendant
did not only abduct the victim at gunpoint
and take her to a deserted basement
apartment where he threatened to kill her,
but he did much more than that . . . .
He told her that her cousin was the
mastermind and there was a man directing
what he was doing in the other room. And
that that man wanted him to do sexual things
to Y.S. He tied her hands behind her back,
blindfolded her, gagged her, put a bag over
her head choking and smothering her to stop
her from screaming. He attempted to
sexually assault her and continued to tell
her that other men were involved and wanted
to touch her.
All of these circumstances increased
her terror and went well beyond what was
necessary to accomplish the kidnapping.
As to factor two, the judge explained that:
Factor two has to do with the gravity
and seriousness of the harm inflicted on the
victim. And in this case the defendant
terrorized the victim from the moment that
he grabbed her off the street at gunpoint,
brought her to an isolated basement
22 A-2594-14T4
apartment at gunpoint. Blindfold, gagging,
tying her hands, smothering her.
She described the harm that was
inflicted on her [in her victim impact
statement]. And here it is appropriate to
talk about the emotional harm. And in this
case in particular, any person would be
unbelievably frightened by all of these
circumstances, and especially that part of
the crime that had to do with attempting to
sexually assault her by cutting her clothes,
taking her clothes off, hearing him unzip
his pants, put on a condom, all of that.
But to this victim in particular, the
harm was much more because she is an
observant Muslim. And certainly described
during the trial and today that it would not
be acceptable for her to have a sexual
relationship with anyone before marriage.
And even though she was the victim here[,]
the family is still looking at her as if in
some way she's at fault. She's not
permitted to talk about it, she can't talk
to her family. She has to cry in privacy.
And this obviously had such a
significant impact on her that aside from
the normal emotional trauma that would
accompany any victim of an attempted
aggravated sexual assault, along with the
kidnapping and all of the other frightening
circumstances, she has additional emotional
harm through which she suffers and continues
to suffer.
"Appellate review of the length of a sentence is limited."
State v. Miller, 205 N.J. 109, 127 (2011). Although it is
axiomatic "that facts that established elements of a crime for
which a defendant is being sentenced should not be considered as
23 A-2594-14T4
aggravating circumstances in determining that sentence," State
v. Kromphold, 162 N.J. 345, 353 (2000), "a sentencing court may
justify the application of aggravating factor one, without
double-counting, by reference to the extraordinary brutality
involved in an offense," State v. Fuentes, 217 N.J. 57, 75
(2014). Judge Pincus did so here in meticulously describing the
circumstances that increased the victim's terror "and went well
beyond what was necessary to accomplish the kidnapping."
Although, as the judge acknowledged, finding factors one
and two are far from usual, we have held that application of
both factors is not per se unreasonable. See State v. Soto,
340 N.J. Super. 47, 71-72 (App. Div.) (finding no abuse of
discretion in the trial court's application of aggravating
factors one and two in sentencing the defendant for a brutal
murder), certif. denied, 170 N.J. 209 (2001), overruled in part
on other grounds, Dalziel, supra, 182 N.J. at 504. It is well
settled that where the harm to the victim far exceeds the
minimum necessary to prove an element of the offense, the court
may treat the additional harm as an aggravating factor. State
v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992).
Application of aggravating factor two "compels 'a pragmatic
assessment of the totality of harm inflicted by the offender on
the victim.'" State v. Anthony, 443 N.J. Super. 553, 575-76
24 A-2594-14T4
(App. Div. 2016) (quoting State v. Lawless, 214 N.J. 594, 610
(2013)). "'It focuses on the setting of the offense itself with
particular attention to any factors that rendered the victim
vulnerable or incapable of resistance at the time of the
crime.'" Id. at 576 (quoting Lawless, supra, 214 N.J. at 611).
Here, Judge Pincus found the victim's Muslim faith, which she
made known to defendant, increased the trauma she suffered, far
exceeding that minimally necessary to elevate the crime to
first-degree kidnapping, making this kidnapping more heinous
than typical. That finding is well supported by the record.
Because we are satisfied that Judge Pincus's careful
findings and balancing of the aggravating and non-existing
mitigating factors are supported by adequate evidence in the
record, and the sentence is neither inconsistent with sentencing
provisions of the Code of Criminal Justice nor shocking to the
judicial conscience, we affirm it in its entirety. See Fuentes,
supra, 217 N.J. at 70; State v. Bieniek, 200 N.J. 601, 608
(2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Defendant's remaining arguments, to the extent we have not
addressed them, lack sufficient merit to warrant discussion in a
written opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
25 A-2594-14T4