STATE OF NEW JERSEY VS. ANTHONY IRIZARRY(12-08-0619, PASSAIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-1518-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY IRIZARRY a/k/a TONE,
Defendant-Appellant.
_______________________________
Submitted May 30, 2017 – Decided June 12, 2017
Before Judges Sabatino and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
12-08-0619.
Joseph E. Krakora, Public Defender, attorney
for appellant (John A. Albright, Designated
Counsel, on the briefs).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Robert J. Wisse,
Assistant Prosecutor, of counsel and on the
briefs).
PER CURIAM
This case arises out of an incident in which defendant Anthony
Irizarry engaged in sexual activity with an adult woman, P.R. 1
The State's theory at trial was that defendant threatened P.R. at
knifepoint, drove her to a desolate location, and forced her to
engage in oral and anal sexual acts. Defendant, who testified at
trial in his own defense, asserted that P.R. had offered to have
sex with him in exchange for drugs, and that their ensuing sexual
relations were consensual.
Following a nine-day trial, a jury acquitted defendant of
kidnapping, terroristic threats, and various weapons charges.
However, the jury found him guilty of first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(4), and third-degree
aggravated criminal sexual contact, N.J.S.A. 2C:14-2(a)(4). The
State voluntarily dismissed an additional count that charged
defendant with a "certain persons" weapons offense. After denying
defendant's new trial motion, the court sentenced defendant on the
first-degree offense to an extended custodial term of thirty-five
years, subject to the parole ineligibility period mandated by the
No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The sentence
was to run consecutively to a sentence defendant was serving on
an unrelated conviction.
1
We use initials to protect the privacy of the person the State
deemed to be the victim.
2 A-1518-14T4
On appeal, defendant contends that the trial court improperly
and prejudicially allowed the prosecutor to cross-examine him
about his failure to divulge his sex-for-drugs explanation of the
underlying incident during post-arrest interrogation by the
police. Defendant further argues that the jury charge was flawed
in omitting an instruction about the defense of consent, and in
not alternatively charging second-degree sexual assault and
fourth-degree criminal sexual contact as lesser included offenses.
Lastly, defendant argues his sentence is manifestly excessive and
is the product of an abuse of discretion.
For the reasons that follow, we reverse and remand for a new
trial because of the post-arrest silence issue, but reject all of
defendant's remaining claims of error.
I.
As we have noted, the State and defendant presented
diametrically conflicting narratives at trial, except insofar as
defendant acknowledged that he and P.R. engaged in sexual activity
on the date in question. Both defendant and P.R. are adults.
Defendant has an associate's degree from a technical school,
resided with a long-time girlfriend, and had one child. P.R., who
testified through a Spanish interpreter, was a factory worker who
rented a room in the City of Passaic.
3 A-1518-14T4
P.R.'s Version
According to P.R., on May 20, 2011, she left her residence
at approximately 5:30 a.m. and began walking to catch a bus to
take her to work. She testified that, as she walked down the
street, a car stopped behind her. Suddenly a man grabbed her from
behind. P.R. was briefly able to break free, but the man caught
up with her a block away. She did not scream because the man
covered her mouth and told her that if she cried out he would kill
her. Although P.R. recalled that other people were nearby, none
of them intervened to assist her.
P.R. testified that the man was armed with a knife
approximately four inches long. He put her in a black car and
drove her to a construction site. She described the area as
desolate, although she did see another person walking along a path
as the black car arrived.
After they arrived, the man threatened to kill P.R. with the
knife unless she performed oral sex on him. She complied. Then
he made her take her pants off. He directed her to the car's
front seat, where he sexually assaulted her anally. According to
P.R., she screamed out and pled with defendant to stop, but he
persisted. When he finished, he gave her a glove to wipe off her
4 A-1518-14T4
anus. She asked him to drive her home, promising that she would
not reveal what had occurred.
They got back in the car, and the man drove P.R. back to
Passaic. Before he released her, he took her cell phone and told
her "he had the names of all my relatives and that if I said
anything he said he knew people in Passaic that would kill me if
I [told anyone]."
The man dropped P.R. off about a half-hour away from her
home. She walked over to a taxi stand, and the cab driver called
the police. When the police arrived, she told them her account,
and they attempted to drive her to where the sexual assault took
place. They then took her to the hospital.
The police did not attempt to have P.R. identify her attacker.
At trial, P.R. stated that she did not remember what her attacker
looked like, and that she had never seen him before this incident.
The prosecutor did not ask P.R. whether she recognized defendant
in the courtroom.
Defendant's Version
Defendant's trial testimony presented a markedly different
narrative. He stated that at about 5:30 a.m. on May 20, 2011, he
was selling crack cocaine on Passaic Street near a park. He said
he had been out there for about ten to eleven hours. A short
woman approached him, and defendant testified "she was willing to
5 A-1518-14T4
exchange a favor for drugs," which meant to him that she was
"willing to have sex for drugs." Defendant said he agreed to the
proposition.
According to defendant, he and the woman then walked to a
nearby alley, where they had anal sex. Defendant said he did not
force the woman to do so. He denied having any oral sex with her.
Once he ejaculated, defendant pulled his pants up, and turned to
leave. The woman asked defendant for drugs, and he told her to
leave. He then left and went home. He testified that he never
intended on giving the woman drugs. He never saw the woman again.
On cross-examination, defendant testified that he made "$750,
$760" that night selling drugs. Additionally, he stated that he
does not drive and did not have a vehicle.
The Investigation
The police investigation of the incident was conducted by
several officers from the City of Passaic Police Department,
including Officer Raymond Rodriguez.
On the day of the incident, Officer Rodriguez took P.R. in
his patrol car and drove onto Route 21 to the area where she
alleged the incident took place. She could not find the location,
but was able to identify a "castle-looking" building where her
assailant had dropped her off. The officer then took P.R. to the
hospital for a medical examination.
6 A-1518-14T4
Massiel Delacruz Green, a physician's assistant specializing
in O.B./G.Y.N., testified as an expert witness for the State. She
is qualified in the field of sexual assault forensic examination.
Delacruz Green examined P.R. for about three hours on the day of
the incident. During that exam, Delacruz Green interviewed P.R.,
and collected samples from various parts of her body, including
her anus, vagina, and mouth. Delacruz Green noticed "certain oral
edema, so around P.R.'s mouth it was swollen." Additionally,
Delacruz Green identified "multiple lacerations along the anal
folds" and "micro lesions" along the woman's posterior. However,
Delacruz Green did not notice any bruises, scratches, or knife-
marks on P.R. anywhere on her body, including her anus.
Police Detective Edward Valentin also took part in the
investigation. Initially, police attempted to interview P.R., but
Valentin testified that she was too shaken up to provide a
statement to police. Three days after the incident, Valentin met
P.R. again, and she guided Valentin and Officer Rodriguez to the
place where she believed the assault had occurred. He testified
that P.R. directed them to Route 21, and they got off at a desolate
industrial area in Newark.
P.R. directed the police to a construction site. Once there,
Valentin testified the police noticed a security camera. After
noticing the camera, the police returned P.R. to the Passaic City
7 A-1518-14T4
Police headquarters. Valentin testified that P.R. told police
that her assailant had taken her from her residence at knifepoint,
drove her to the industrial area off Route 21, and assaulted her.
She told police that she never got a good look at her assailant.
After the interview, Valentin returned to the location and
obtained camera footage of the area. However, in viewing that
surveillance video, the officers did not see a car stopping at the
location at the time P.R. said it would appear.
An expert serologist with the State Police conducted a body
fluid analysis from the sexual assault kit. The serologist
detected sperm in the rectal and anal swabs, but found none in the
oral, vaginal, pubic, and fingernail swabs. A DNA expert from the
State Police found a match between the sperm sample and defendant's
own DNA, which had been provided through a previous buccal swab.
The Suppression Hearing and the Subsequent Trial
Prior to trial, the judge reviewed a tape of a post-arrest
interview Detective Valentin conducted of defendant. The judge
also heard testimony from the detective at a suppression hearing.
Based on the detective's failure to inform defendant of his charges
before the questioning, the judge suppressed his statements from
being admitted during the State's case-in-chief. However, because
the judge found the statements were voluntarily given, she ruled
8 A-1518-14T4
that she would allow the statements to be used for impeachment,
if defendant chose to testify.2
As we have already noted, defendant elected to testify. On
cross-examination by one of the two assistant prosecutors who
tried the case as co-counsel, defendant was extensively questioned
about his failure to provide the police with the exculpatory
version of events that he had presented on direct examination.3
The jury deliberated for over a day before rendering its
verdict. The jury found defendant not guilty of kidnapping,
possession of a weapon for an unlawful purpose, unlawful possession
of a weapon, and terroristic threats, but guilty of aggravated
sexual assault and aggravated criminal sexual contact.
After the verdict, defendant moved for a new trial on the
basis that the judge should have submitted lesser-included
offenses to the jury. The judge denied that motion in an oral
opinion.
Sentencing
The trial judge sentenced defendant on October 8, 2014. The
judge merged the third-degree aggravated sexual contact count into
the first-degree aggravated sexual assault count. The judge
2
We discuss this in more detail, infra, in Part II(A).
3
We discuss this cross-examination and defendant's associated
claims of its impropriety, infra, in Part II(A).
9 A-1518-14T4
granted the State's motion to impose an extended term because of
defendant's status as a persistent offender.
The judge found that three aggravating sentencing factors
applied: (3) the risk that defendant will commit another offense,
N.J.S.A. 2C:44-1(a)(3); (6) the extent of defendant's prior
criminal record and the seriousness of the offenses of which he
was convicted, N.J.S.A. 2C:44-1(a)(6); and (9) the need for
deterring defendant and others from violating the law, N.J.S.A.
2C:44-1(a)(9). The judge also found one mitigating factor: (11)
the imprisonment of defendant would entail excessive hardship to
himself or his dependents, N.J.S.A. 2C:44-1(b)(11). The judge
observed that the "aggravating factors are extremely strong and
outweigh the one mitigating factor." As we have already noted,
the judge imposed on defendant a thirty-five-year custodial
sentence, subject to the NERA parole disqualifier.
This appeal followed.
II.
Defendant raises these points for our consideration:
POINT I
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY
AT ALL AS TO THE LAW REGARDING CONSENT
DEPRIVED DEFENDANT OF HIS ONLY DEFENSE AND A
FAIR TRIAL. (Not Raised Below).
10 A-1518-14T4
POINT II
THE TRIAL COURT ERRED IN PERMITTING EXTENSIVE
CROSS-EXAMINATION OF DEFENDANT ABOUT HIS
FAILURE TO PROVIDE DETECTIVE VALENTIN WITH HIS
EXCULPATORY VERSION OF EVENTS DURING HIS POST-
ARREST INTERROGATION.
POINT III
THE FAILURE TO CHARGE SECOND-DEGREE SEXUAL
ASSAULT AS A LESSER-INCLUDED OFFENSE OF FIRST-
DEGREE AGGRAVATED SEXUAL ASSAULT, AND LESSER-
INCLUDED OFFENSE OF THIRD-DEGREE AGGRAVATED
CRIMINAL SEXUAL CONTACT WAS PLAIN ERROR
BECAUSE SEXUAL PENETRATION OR CONTACT THROUGH
USE OF PHYSICAL FORCE OR COERCION WITHOUT THE
VICTIM SUSTAINING SEVERE INJURY WAS CLEARLY
INDICATED IN THE RECORD.
POINT IV
THE THIRTY-FIVE YEAR DISCRETIONARY EXTENDED
TERM SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
AND AN ABUSE OF THE LOWER COURT'S DISCRETION.
He amplifies the post-arrest silence argument in his reply brief,
as follows:
REPLY POINT I
THE LOWER COURT ERRED IN PERMITTING EXTENSIVE
CROSS-EXAMINATION OF DEFENDANT ABOUT HIS POST-
ARREST SILENCE BECAUSE HIS STATEMENT COULD NOT
HAVE BEEN VOLUNTARY FOLLOWING THE A.G.D.
VIOLATION -- THE DETECTIVE'S FAILURE TO ADVISE
DEFENDANT OF THE PENDING CHARGES DEPRIVED HIM
OF THE ABILITY TO MAKE A VOLUNTARY STATEMENT
UNDER THE LAW (12T106-18 to 107-11; 4T70-23
to 71-1).
11 A-1518-14T4
III.
We discuss defendant's arguments in a reorganized and
slightly different sequence.
A.
Defendant contends that the trial court erred in allowing one
of the two assistant prosecutors who tried the case to cross-
examine him extensively about his failure to present an exculpatory
account of the underlying events during his post-arrest
interrogation by Detective Valentin. For the reasons that follow,
we agree with that contention.
1.
The relevant aspects of defendant's police interrogation and
cross-examination at trial are as follows. As recounted by
Detective Valentin at the suppression hearing, after P.R. reported
the alleged sexual assault, the State Police requested Valentin
to interview defendant based on a positive match between
defendant's DNA and the victim's submitted sperm sample. Defendant
was already in custody on an unrelated offense.
To facilitate the interview, Detective Valentin arranged for
defendant to be brought on March 20, 2012 at 2:30 a.m. from the
Passaic County Jail to the Passaic City Police Station. Defendant,
still in handcuffs, was brought into an interview room at around
12 A-1518-14T4
11:00 a.m. The detective administered Miranda 4 warnings, and
defendant's restraints were removed before questioning began.
Notably, the detective did not inform defendant of the charges
against him before reading him his rights under Miranda and
proceeding with the interrogation. As the trial court correctly
found, that critical omission violated the requirements set forth
by our Supreme Court in State v. A.G.D., 178 N.J. 56, 66-69 (2003)
(holding that police are obligated before interrogating persons
that a criminal complaint or arrest warrant has been filed or
issued against that person). The foundation of this principle is
that the government's failure to so inform a suspect that such a
criminal complaint or arrest warrant had been filed or issued
"deprives that person of information indispensable to a knowing
and intelligent waiver of [his] rights [to assert the privilege
against self-incrimination]." Id. at 68. "Without advising the
suspect of his true status when he does not otherwise know it, the
State cannot sustain its burden . . . that suspect has exercised
an informed waiver of rights, regardless of other factors that
might support his confession's admission." Ibid.
Applying A.G.D., the trial judge properly ruled that
defendant's responses to the detective's questions could not be
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
13 A-1518-14T4
used affirmatively by the State against defendant in its case-in-
chief. 5 However, the judge added a qualification that, if
defendant elected to take the stand and testify in his own defense,
the prosecution could cross-examine him about his responses to the
detective as potential impeachment evidence. Defendant's trial
counsel argued against this decision and later objected to this
qualification at trial, but the objection was overruled.
During the detective's recorded interview of defendant, he
asked defendant if he knew somebody by the name of P.R. Defendant
replied that he never heard of her. The detective then alluded
to defendant's detention and his brother's involvement in
narcotics, and then asked defendant, "You want to tell me
something?" Defendant replied, "No."
The detective pressed further and described how the alleged
victim had been threatened at knifepoint, was taken to another
location, and was sexually assaulted. Defendant responded, "I
don't know anything about that." The detective urged defendant
to cooperate with the investigation, noting that he did not "pick
[defendant's] name out of a hat." He again asked defendant if he
did the crime. Defendant repeated, "No." The detective then
asked a general question as to how defendant "got around" the
5
The State has not cross-appealed this aspect of the trial judge's
ruling.
14 A-1518-14T4
previous summer, to which defendant tersely replied in one word:
"Foot."
The interview then turned to the DNA evidence that the
detective said linked defendant to the victim. Once again,
defendant denied knowing the alleged victim. He further denied
the detective's accusation that he had picked up a woman, drove
her into Newark, and had sex with her. The detective then
confirmed that defendant "really [didn't] want to tell [him]
anything."
At that point, the detective read to defendant standard
language consenting to the provision of fresh buccal swabs, noting
that he already had a judge's order compelling such swabs to be
provided. One last time, the detective reiterated, "You're not
going to tell me anything else? You don't have anything else to
say to me?" Defendant remained uncommunicative, and the recorded
interview terminated at that point.
Later at trial, defendant elected to take the stand and
presented on direct examination his sex-for-drugs account of
events. On cross-examination, an assistant prosecutor – as
permitted by the court's pretrial ruling – repeatedly and pointedly
challenged defendant about his failure to provide the sex-for-
drugs narrative when he had been interrogated at the police station
by Detective Valentin. Defense counsel objected repeatedly
15 A-1518-14T4
throughout the cross-examination, but the judge overruled her
argument that no prior inconsistent statements were being
challenged.
The assistant prosecutor read through Detective Valentin's
interview questions, which, as we have already shown, essentially
consisted of P.R.'s account and defendant denying knowledge of
those facts. The prosecutor then inquired of defendant whether
the detective had asked him if he "knew anything about" the rape.
Defendant agreed that he had told the detective "no."
The assistant prosecutor next went through defendant's
positive DNA match. He noted that the detective had asked him "if
something happened." Defendant responded that he told the
detective "I don't know."
After presenting to the jury most of Detective Valentin's
interview, the assistant prosecutor then challenged defendant,
"You never said anything about having sex with a woman in exchange
for drugs, did you? . . . Yes or no?" Defendant responded in the
negative. Pressing him more, the prosecutor asked:
You never said anything to the detective, you
know what? I was out selling drugs that day,
I was trying to make a living for my family,
I had a little bit of drugs left. The woman
offered me some sexual favors for drugs and I
went with her. You never said that to him,
did you?
16 A-1518-14T4
Once again, defendant denied having volunteered such information
during his police interview.
Following a brief recess, defense counsel requested the court
to give the jurors a curative instruction about her client's right
to not volunteer information to the police. Although the judge
did not approve defense counsel's blanket request, the judge did
agree that the prosecutor's specific query to defendant about not
offering to speak again with the police after the interview should
be stricken as improper. The jury returned and the judge issued
a curative instruction on that discrete basis, advising the jurors
that defendant had "a constitutional right to not speak again" to
the detective and that they should not consider that particular
failure to speak up in their deliberations.
After that instruction, the assistant prosecutor resumed
cross-examining defendant about his failure to provide an
exculpatory version of events during the police station interview.
He posed this lengthy leading question:
So, on March 20 of 2012, when you're sitting
down and you're speaking to the detective and
he’s asking you questions in a calm, non-
threatening, non-coercive situation, before
he’s even told you your charge, and he’s
asking you, and he’s telling you that this
information relates to the investigation, you
don't tell him what you've told us today about
a woman coming up to you and tricking and
asking for sexual favors in return for drugs
and that you were out drug dealing that day
17 A-1518-14T4
and that the woman approached you; you don't
tell him any of that, right?
DEFENDANT: Yes.
[(Emphasis added).]
Finally, the assistant prosecutor's cross-examination of
defendant ended with the following exchange:
PROSECUTOR: When you told Detective Valentin,
when you gave him the answers, he told you you
were charged, and he told you about the
scientific database, you never gave him the
story that you told today, did you?
DEFENDANT: No.
PROSECUTOR: And that's because you thought
you were going to get away with it, didn't
you?
DEFENDANT: What? Excuse me?
PROSECUTOR: That was because [sic] that you
were going to get away with it, didn't you?
DEFENSE COUNSEL: Judge, I have to object at
this point.
DEFENDANT: Get away with what?
DEFENSE COUNSEL: I'm going to ask to be heard.
THE COURT: I will allow it. He is probing
his state of mind at the time. I will allow
it.
DEFENSE COUNSEL: I don't know if the question
makes sense, if he even understands it.
THE COURT: Well, you have your argument. You
have redirect. Overruled. Go ahead.
18 A-1518-14T4
DEFENDANT: I didn't think I was getting away
with nothing, 'cause I didn't do nothing
wrong.
[(Emphasis added).]
During the final charge, the court explained to the jurors
that they were permitted to consider defendant's responses during
the detective's interview as prior statements that could affect
his credibility. The judge advised the jurors in this regard to
consider "such factors as to where and when the prior statement[s]
occurred, and the reasons given, if any, therefore."
2.
On appeal, defendant urges that the State was improperly
allowed to impeach him with his failure to present an exculpatory
account of the incident during the post-arrest interview with
Detective Valentin. He further argues that the assistant
prosecutor unfairly capitalized on this erroneous ruling on cross-
examination, thereby undermining his constitutional right to be
silent and refrain from providing such a narrative to the
investigating authorities.
The pertinent case law supports defendant's claim of error.
In State v. Deatore, 70 N.J. 100, 115-16 (1976), the Supreme Court
noted that it is "fundamental" in our State that a criminal suspect
has the right to remain silent when in police custody or
19 A-1518-14T4
interrogation, id. at 114, and that when such an individual
expressly refuses to answer police queries, "no inference can be
drawn against him under the doctrine of acquiescence or any other
concept," id. at 115 (quoting State v. Ripa, 45 N.J. 199, 204
(1965)).
The Court amplified these principles in State v. Muhammad,
182 N.J. 551, 568 (2005), reiterating that a prosecutor may not
refer to a defendant's silence while he was in police custody as
a basis to infer his guilt. Similar to the present case, the
prosecutor in Muhammad faulted the defendant, who was charged with
a sexual assault, for failing to tell the police that the alleged
sexual encounter was consensual. Id. at 566. The Court repudiated
this tactic as "impal[ing] defendant on his silence[.]" Id. at
566-67. The Court reasoned that a jury should not be able to
infer guilt from a suspect's silence, because we "cannot know
whether a suspect is acquiescing to the truth of an accusation or
merely asserting his privilege[.]" Id. at 567.
To be sure, our case law does recognize these principles are
not without limitation. As the Supreme Court ruled in State v.
Tucker, 190 N.J. 183, 189 (2007), "a defendant's right to remain
silent is not violated when the State cross-examines a defendant
on the differences between a post-Miranda statement and testimony
at trial." When a defendant speaks, he has not remained silent.
20 A-1518-14T4
Ibid. Therefore, it is not inappropriate for the State "to point
out differences in the defendant's testimony at trial [if] his
[earlier] statements [] were freely given." Ibid.
In Tucker, the defendant volunteered – in his third and final
session with police interviewing him about the death of his mother
– that he had taken her to the bank during the pertinent timeframe,
a claim that he had not divulged in his first two interviews. Id.
at 186-87. Given such circumstances, the Court held that it was
permissible for the prosecution to point out at trial the
inconsistencies in defendant's voluntary statements and other
evidence at trial. Id. at 190. The State's use of such
inconsistencies, the Court held, did not comprise "an
unconstitutional comment on [a defendant's] silence." Ibid.
Very recently, the Supreme Court applied these general
principles in State v. Kucinski, 227 N.J. 603 (2017).6 In that
case, the defendant was arrested for murder, given Miranda
warnings, and then participated in an interview with the police.
Id. at 608. The defendant insisted that he speak with the police
"to tell [them] the truth," and he initially provided certain
details. Id. at 622. However, as the interview progressed, the
defendant refused to answer certain specific questions, conduct
6
Counsel helpfully submitted to us supplemental briefs addressing
Kucinski shortly after it was issued.
21 A-1518-14T4
which the Court deemed to be "not an attempt to end the dialogue,
but rather . . . 'part of an ongoing stream of speech[.]'" Id.
at 623 (citing Bradley v. Meachum, 918 F.2d 338, 342 (2d Cir.
1990) cert. denied, 501 U.S. 1221, 111 S. Ct. 2835, 115 L. Ed. 2d
1004 (1991)). The Court held that the defendant waived his right
to silence, and that any conflicts between his direct testimony
at trial and his post-arrest statement were appropriate topics for
cross-examination by the prosecutor. Id. at 623-24.
The situation here is markedly different from Tucker and
Kucinski. For one thing, as the judge determined, defendant was
not even duly informed of the charges against him until part-way
through the interview. Beyond that flaw, a fair reading of the
interview transcript as a whole supports defendant's argument that
his responses to Detective Valentin essentially consisted of flat
denials, interspersed with outright refusals to respond. Unlike
the suspects in Tucker and Kucinski, defendant did not volunteer
to the police an affirmative narrative, such as Tucker's alleged
trip to the bank with his mother, see Tucker, supra, 190 N.J. at
186, or Kucinski's claim that the decedent, his brother, had
threatened to kill him with a gun and had bitten him. See Kucinski,
supra, 227 N.J. at 609-10. Here, as Detective Valentin literally
remarked to defendant after peppering him with questions without
success, he "really didn't want to tell him anything."
22 A-1518-14T4
Although we appreciate the trial court's general sensitivity
to defendant's constitutional rights and her conscientious efforts
to impose boundaries on the prosecution, the State went too far
here in emphatically criticizing defendant for not volunteering
to Detective Valentin that he had consensual sex with P.R. after
she had offered to exchange sex for drugs. The protracted cross-
examination permitted by the court improperly failed to honor
defendant's constitutional right to refuse to engage in a
substantive dialogue with the interrogating officer.7
We further conclude that this violation of defendant's rights
was not harmless error. The case largely hinged upon the
credibility of P.R.'s version of events versus defendant's
competing version. There were no eyewitnesses presented at trial.
The surveillance video of the alleged location of the sexual
assault failed to substantiate P.R.'s narrative. The knife
allegedly used to threaten P.R. was never produced. Several
details of her account were only claimed for the very first time
in her direct examination at trial. The DNA testing did show that
defendant had sexual contact with P.R., but that fact was not
7
To be clear, we do not suggest that the assistant's prosecutor's
cross-examination was in any way unprofessional, since his mode
of impeachment had been expressly authorized in advance by the
trial court. The assistant prosecutor did exactly what a zealous
advocate might be expected to do in compliance with a court's
ruling.
23 A-1518-14T4
disputed at trial. What was hotly disputed were the actual series
of events that led to the contact occurring.
In sum, this was a relatively close case on the facts, which
turned greatly on the jury's assessments of the sexual actors'
credibility. The tenor and contents of the prosecution's
blistering cross-examination of defendant likely made a difference
in the jury's evaluation of which actor to believe.
We are mindful that the trial court issued well-intentioned
instructions to the jurors, which were designed to contain the
impact of the State's cross-examination to the impeachment of
defendant's testimony. Although such instructions surely would
have been appropriate in a case in which a defendant had provided
a contrary narrative to investigating officers, no such narrative
was advanced by this defendant at the police station. Instead,
he provided no substantive information, except the incidental fact
that he got around on "foot." Even though the assistant prosecutor
who presented the State's closing argument to the jury did not
mention her colleague's cross-examination, she did not need to do
so strategically, for presumably the damage had already been done
through her partner's lengthy excoriation of defendant's silence.
In sum, we lack confidence that the error was inconsequential,
and thereby direct that the case be tried anew. See State v.
Macon, 57 N.J. 325, 333 (1971); R. 2:10-2 (regarding the appellate
24 A-1518-14T4
court's role in providing relief from trial errors that were
"clearly capable of producing an unjust result"). At the new
trial, the prosecution will be barred from presenting any evidence
of defendant's responses to the detective's interrogation.
B.
Because we are ordering a new trial, we need not comment at
length on the remaining issues. Nevertheless, we address them
briefly for sake of completeness.
1.
Defendant claims that the final jury charge was flawed because
it did not include an instruction about a sexual actor's consent.
In addition, defendant separately argues that the trial judge
should have included in the charge the elements of the lesser-
included offenses of second-degree sexual assault, N.J.S.A. 2C:14-
2(c)(1), and fourth-degree criminal sexual contact, N.J.S.A.
2C:14-3(b).
Significantly, none of these jury charges were requested by
defendant before or during trial. Where, as here, a defendant
does not object to jury instructions at a trial, the plain error
standard of review applies. See, e.g., State v. Burns, 192 N.J.
312, 341 (2007). In addition, we must consider alleged errors in
the jury charge in light of its totality, rather than in isolation.
Ibid. (citing State v. Chapland, 187 N.J. 275, 289 (2006)). That
25 A-1518-14T4
said, we are also mindful of the general principle that trial
courts have "the independent duty" to provide jurors with "accurate
instructions on the law as it pertains to the facts and issues of
each case, irrespective of the particular language suggested by
either party." State v. Reddish, 181 N.J. 553, 613 (2004).
Applying these principles here, we discern no basis to grant
defendant a new trial because of alleged flaws in the charge.
First, we reject defendant's argument that the trial court
was obligated, sua sponte, to instruct the jurors as to the law
of consent reflected in the model criminal charges. See Model
Jury Charge (Criminal), "Aggravated Sexual Assault in the Course
of a Felony: Consent Alleged, N.J.S.A. 2C:14-2(a)(3)" (2012). Such
an instruction on consent was not required in the circumstances
here, because this was a case in which the alleged victim contended
that she was compelled to take part in sexual acts due to
defendant's threats of violence or force. See State v. Jones, 308
N.J. Super. 174, 187 (App. Div.), certif. denied, 156 N.J. 380
(1998) (ruling that a consent instruction was not necessary in a
case where the State contended that the defendant had kidnapped
the victim and used force against her to sexually assault her);
State v. Cuni, 303 N.J. Super. 584, 598 (App. Div. 1997), aff'd
on other grounds, 159 N.J. 584 (1999) (holding, by contrast, that
a consent instruction was necessary, given the factual dispute
26 A-1518-14T4
concerning the mental capacity of the alleged victim to engage in
the sexual conduct, and where the State did not allege that the
defendant had used force or violence). See also In re M.T.S., 129
N.J. 422, 447-49 (1992) (noting that defense of consent is
inapplicable to cases in which the State alleges "violence or
force extrinsic to the act of penetration").
Nor was the trial court obligated to instruct the jurors, sua
sponte, on the two lesser-included offenses that defendant did not
posit until after the verdict was rendered. As a general
proposition, unrequested jury charges on lesser-included offenses
are only necessary where the facts and evidence "clearly indicate"
a basis to support such an offense. State v. Carrero, ___ N.J.
___, ___ (2017) (slip op. 11); State v. Jenkins, 178 N.J. 347, 361
(2004).
Here, the proofs adduced at trial did not clearly indicate a
sufficient evidential basis to charge the lesser-included offenses
of non-aggravated sexual assault and sexual contact. The jury was
presented with only two testimonial versions of the incident:
P.R.'s account of her abduction at knifepoint and forced sexual
assault versus defendant's claim that the sexual activity was the
result of his acceptance of P.R.'s offer of sex for drugs. Either
the jury was likely to believe defendant that the sex was not
physically coerced, or alternatively believe P.R. that it was.
27 A-1518-14T4
The evidence did not manifestly support a middle-ground
possibility of non-aggravated sexual wrongdoing committed without
any force or threat of violence. The mere fact that defendant was
ultimately acquitted of kidnapping, terroristic threats, and
weapons offenses does not retroactively compel the issuance of an
instruction on lesser offenses that was never requested and one
not "clearly" suggested by the evidence.
2.
Defendant's final argument that his extended-term sentence
is manifestly excessive requires little comment. As the trial
judge appropriately took into account, defendant has a substantial
prior criminal record, including multiple felony convictions, and
his commission of what the jury found to be his guilt of a first-
degree offense warranted a lengthy custodial term. We discern no
abuse of discretion in the judge's sound and detailed sentencing
analysis, and therefore will not disturb it. State v. Case, 220
N.J. 49, 65 (2014); State v. Fuentes, 217 N.J. 57, 73 (2014). Had
we upheld defendant's guilty verdict, the sentence would have been
entirely justified.8
8
To the extent that we have not already explicitly addressed them,
all other arguments and sub-arguments raised on appeal by defendant
lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
28 A-1518-14T4
IV.
Defendant's judgment of conviction is reversed and remanded
for a new trial, solely because of the prosecution's improper and
highly prejudicial cross-examination impugning his failure to
present an exculpatory narrative during post-arrest police
interrogation. In all other respects, defendant's claims of error
are rejected, and the trial court's rulings and overall handling
of this matter are affirmed. We do not retain jurisdiction.
29 A-1518-14T4