STATE OF NEW JERSEY VS. HUMBERTO GONZALEZ Â (12-10-1028, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-2784-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HUMBERTO GONZALEZ, a/k/a
SANTOS SOLARES, JOSE ROBE,
SANTOS HOMBERTO M., SANTOS
JOSE R.,
Defendant-Appellant.
_________________________________
Submitted May 15, 2017 – Decided May 31, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
12-10-1028.
Joseph E. Krakora, Public Defender, attorney
for appellant (Margaret McLane, Assistant
Deputy Public Defender, of counsel and on the
brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Amanda E. Nini,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
On October 19, 2012, a Mercer County grand jury returned a
ten-count indictment charging defendant Humberto Gonzalez with
first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count one); three
counts of first-degree aggravated sexual assault while armed,
N.J.S.A. 2C:14-2(a) (counts two, three, and four); three counts
of first-degree aggravated sexual assault in the course of a
kidnapping, N.J.S.A. 2C:14-2(a)(3) (counts five, six, and seven);
third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count
eight); fourth-degree possession of a weapon (knife), N.J.S.A.
2C:39-5(d) (count nine); and third-degree possession of a weapon
(knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count ten).
At the trial, the trial judge granted the State's motion to
dismiss counts three, four, six, and seven of the indictment. At
the conclusion of the trial, the jury found defendant guilty of
first-degree kidnapping (count one); second-degree sexual assault
as a lesser-included offense of aggravated sexual assault while
armed (count two); first-degree aggravated sexual assault in the
course of a kidnapping (count five); and third-degree criminal
restraint (count eight). The jury found defendant not guilty of
the two weapon possession charges under counts nine and ten.
On November 14, 2014, a different trial judge merged counts
five and eight into count one and sentenced defendant to twenty-
five years in prison, subject to the 85% parole ineligibility
2 A-2784-14T3
provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. The
judge sentenced defendant to a concurrent eight-year term on count
two, ordered him to comply with all Megan's Law requirements, and
imposed parole supervision for life. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE STATE FAILED TO PRESENT SUFFICIENT
EVIDENCE THAT DEFENDANT MOVED THE VICTIM A
SUBSTANTIAL DISTANCE OR CONFINED HER FOR A
SUBSTANTIAL PERIOD, REQUIRING REVERSAL OF
DEFENDANT'S CONVICTIONS FOR KIDNAPPING AND
SEXUAL ASSAULT IN THE COURSE OF A KIDNAPPING.
POINT II
DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S
FAILURE TO CHARGE THE JURY REGARDING THE
PROPER ASSESSMENT OF THE STATEMENTS ALLEGEDLY
MADE BY HIM. (Not Raised Below).
POINT III
THE PROSECUTOR'S IMPROPER BURDEN-SHIFTING IN
SUMMATION VIOLATED DEFENDANT'S RIGHT TO A FAIR
TRIAL AND REQUIRES REVERSAL OF HIS
CONVICTIONS. (Not Raised Below).
POINT IV
THE 25-YEAR SENTENCE WITH AN 85% PAROLE
DISQUALIFIER IS EXCESSIVE.
After reviewing the record in light of the contentions
advanced on appeal, we affirm.
3 A-2784-14T3
I.
We derive the following facts from the evidence produced by
the parties at trial.
The victim, M.L.,1 frequently used a bike path that was
located about three or four blocks from her home to walk and ride.
In the afternoon of May 22, 2005, M.L. and her husband, R.L., took
a thirty-mile tandem bike ride along the path. That evening, she
and her husband went to a dance recital.
When the couple returned home between 10:30 and 10:45 p.m.,
M.L. decided to take a walk by herself along the bike path, as she
usually did twice a week "just to relax and unwind, especially
when the weather was nice[,]" as it was on the evening of May 22.
As she set out for her walk at approximately 11:00 p.m., M.L.
anticipated that she would be away from home for about fifteen
minutes.
However, as she waked along the path, M.L. suddenly heard a
rustle from some bushes and a man came out and pushed her to the
ground. M.L. testified that the man had a closed switchblade
knife and told her "just do it or I'll hurt you." There were no
lights on the bike path and M.L. was not able to see her assailant's
face at that time.
1
We use initials to protect the privacy of the victim.
4 A-2784-14T3
M.L. screamed, "No, no, no." To silence her, the man pushed
M.L. down on her knees, put his hands around her neck, and began
dragging her on her stomach toward a playground.2 Although M.L.
estimated that the man only dragged her between ten to twelve
feet, an agent from the Mercer County prosecutor's office later
measured the distance as seventy-eight feet, six inches.
The man dragged M.L. off the bike path and into a fenced-in
playground. Once he got M.L. off the path, the man threw her on
a slide, showed her the knife, and placed it next to the right
side of her head. M.L. testified that she caught a glimpse of her
assailant as he began kissing her face. She believed the man was
Hispanic because he kept saying, "Lo siento mama" to her in
Spanish, which she understood to mean "I'm sorry mom."
The man pulled down M.L.'s tights and underwear and pushed
her skirt up. He then penetrated her vagina with his penis. M.L.
testified that the man penetrated her three different times, but
did not ejaculate the first or second times he assaulted her.
After he ejaculated after the third assault, defendant got off
M.L. She stood and pulled her underwear and tights up. M.L.
estimated that the assault lasted about twenty minutes, although
"[i]t felt longer. It felt like forever."
2
M.L. was fifty-three years old in May 2005. She was approximately
five-feet, two inches tall and only weighed about 125 pounds.
5 A-2784-14T3
M.L. had lost one of her shoes on the bike path as the man
was dragging her to the playground. She asked him to help her
find the shoe. The man went outside the gate "and down the path
a little and he found [M.L.'s] shoe" and returned it to her. After
she got the shoe, M.L. began to walk home slowly so she would not
alert the man that she was going to immediately report the assault.
The man left in the other direction.
About seven minutes later, M.L. got home and told her husband
what had happened. R.L. immediately drove M.L. to the hospital
emergency room. Later that evening, a nurse conducted a sexual
assault examination, which included swabbing M.L.'s vagina for
seminal fluid. M.L.'s clothes were also taken and preserved as
evidence. The nurse's examination revealed that M.L. had vaginal
tears and internal abrasions, as well as bruises and cuts on her
knees, throat, buttocks, and back.
M.L. subsequently went to the police station on three
occasions to attempt to identify her assailant from photographs.
However, she was unable to do so. In January 2010, however, the
police learned that the DNA found in the suspect's semen the nurse
collected from M.L. matched defendant's DNA. At trial, the State
presented the testimony of an expert forensic scientist confirming
this match.
6 A-2784-14T3
At trial, defendant asserted that he was seventeen years old
in May 2005,3 and was working fourteen hours a day as a cook in a
restaurant. Defendant testified that he was walking home from
work along the bike path around 11:00 p.m. on May 22, 2005 because
he thought it was unsafe to walk on the nearby streets. As he
walked, defendant stated that M.L. approached him and asked for a
cigarette. Defendant asserted that M.L. then asked defendant
where he was going and told him that "she wanted . . . to have sex
with" him.
Defendant alleged he was reluctant to have sex with M.L., but
she began to hug and kiss him. At that point, defendant stated
that he and M.L. were already in the playground. They walked to
the slide and defendant asserted that M.L. began unbuckling his
pants. However, defendant stopped her, removed his own pants, and
M.L. "took off hers." Defendant alleged that he had consensual
sex with M.L. on the platform of the slide and that he ejaculated
at least twice during the approximately fifteen-minute encounter.
3
Defendant is not a resident of the United States. At trial, he
asserted that he was born in 1987 and was seventeen years old in
May 2005. In connection with two unrelated offenses with which
he was charged in 2005, however, defendant gave authorities a 1984
date of birth. That would have made him twenty-one years old at
the time of the May 22, 2005 assault. Defendant explained the
discrepancy by asserting that he was "very drunk" when he
originally told the police he was born in 1984 when he was arrested
for the unrelated offenses.
7 A-2784-14T3
At some point, defendant claimed that M.L. told him "to be
quiet" because someone was walking along the bike path. About
three or four minutes later, defendant told M.L. he had to leave.
He testified that M.L. kissed him goodbye and they both left the
playground. Defendant denied having a knife, threatening M.L.,
dragging her along the ground, or sexually assaulting her.
II.
"A person is guilty of kidnapping if he [or she] unlawfully
removes another . . . a substantial distance from the vicinity
where he [or she] is found" with the purpose "[t]o facilitate
commission of any crime. . . ." N.J.S.A. 2C:13-1(b)(1). In Point
I of his brief, defendant argues that "the State failed to present
sufficient evidence that [he] moved the victim a substantial
distance" and, therefore, he should not have been found guilty of
kidnapping and sexual assault in the course of a kidnapping. We
disagree.
As our Supreme Court has consistently held, the "substantial
distance" element of N.J.S.A. 2C:13-1(b)(1) is not defined solely
by "a linear measurement" of the distance a defendant moves the
victim. State v. Jackson, 211 N.J. 394, 415 (2012) (quoting State
v. Masino, 94 N.J. 436, 445 (1983)). Rather, the term "substantial
distance" has been "defined . . . as one that 'isolates the victim
8 A-2784-14T3
and exposes him or her to an increased risk of harm.'" Ibid.
(quoting Masino, supra, 94 N.J. at 445).
For example, in Masino, the Court held that although the
defendant did not move the victim very far, the "substantial
distance" element was still met because the defendant isolated the
victim by taking her clothing, thereby impeding her ability to
"call attention to her plight." Masino, supra, 94 N.J. at 447.
Similarly, in State v. Matarama, we upheld the defendant's
conviction for kidnapping in a case where the victim was dragged
twenty-three feet into an alley, which made it more difficult for
the attack to be observed by passers-by. Supra, 306 N.J. Super.
6, 22 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998).
Applying these principles here, there was clearly sufficient
evidence in the record to support defendant's kidnapping and sexual
assault in the course of a kidnapping convictions. Defendant
dragged M.L. seventy-eight feet, six inches off a bike path into
a fenced playground. Not only was this a "substantial distance"
by any reasonably objective standard, defendant isolated his
victim by moving her to a more secluded area, thus making it easier
for him to complete his assault without being detected. Therefore,
we reject defendant's contention on this point.
9 A-2784-14T3
III.
As noted above, M.L. testified that defendant kept repeating
"lo sienta mama" to her during the attack. In Point II of his
brief, defendant argues that the trial judge erred by failing to
give the jury a sua sponte Hampton4 and Kociolek5 charge concerning
this statement. Again, we disagree.
Because defendant is raising this contention for the first
time on appeal, he must establish that the error about which he
complains rises to the level of plain error, that is, it had the
capacity to result in the jury reaching a decision it might
otherwise not have made. R. 2:10-2. Defendant has failed to meet
this standard.
In Hampton, the Supreme Court held that when a defendant's
confession is admitted in evidence, the judge shall instruct the
jurors "that they should decide whether . . . the defendant's
confession is true," and if they conclude that it is "not true,
then they must . . . disregard it for purposes of discharging
their functions as fact finders." Supra, 61 N.J. at 272. Here,
defendant did not give a statement to the police and, therefore,
a Hampton charge concerning the phrase he repeated to M.L. during
4
State v. Hampton, 61 N.J. 250 (1972).
5
State v. Kociolek, 23 N.J. 400 (1957).
10 A-2784-14T3
the assault was not required. State v. Baldwin, 296 N.J. Super.
391, 398 (App. Div.) (holding that "a special cautionary
instruction is not required when a defendant has allegedly made a
voluntary inculpatory statement to a non-police witness without
being subjected to any form of physical or psychological
pressure"), certif. denied, 149 N.J. 143 (1997).
The trial judge also did not err by failing to give the jury
a sua sponte Kociolek charge. The Kociolek charge pertains to the
reliability of an inculpatory statement made by a defendant to any
witness. Kociolek, supra, 23 N.J. at 421-23. As explained in
Kociolek, the jury should be instructed to "'receive, weigh and
consider such evidence with caution,' in view of the generally
recognized risk of inaccuracy and error in communication and
recollection of verbal utterances and misconstruction by the
hearer." Id. at 421. However, a Kociolek charge need not be
provided to the jury where "an alleged oral inculpatory statement
was not made in response to police questioning, and there is no
genuine issue regarding its contents, . . . because the only
question the jury must determine is whether the defendant actually
made the alleged inculpatory statement." Baldwin, supra, 296 N.J.
Super. at 401-02.
Although our Supreme Court has directed the Kociolek charge
to be given whether or not specifically requested by a defendant,
11 A-2784-14T3
it has also determined that the failure to give this charge is not
plain error per se. State v. Jordan, 147 N.J. 409, 428 (1997)
(noting it would be "a rare case where failure to give a Kociolek
charge alone is sufficient to constitute reversible error"). We
have held that "[w]here such a charge has not been given, its
absence must be viewed within the factual context of the case and
the charge as a whole to determine whether its omission was capable
of producing an unjust result." State v. Crumb, 307 N.J. Super.
204, 251 (App. Div. 1997) (finding "no reported case in which a
failure to include a Kociolek charge has been regarded as plain
error"), certif. denied, 153 N.J. 215 (1998).
Here, defendant did not make the statement in response to
police questioning and there was no dispute as to the content of
the statement at trial. In addition, defense counsel thoroughly
cross-examined M.L. concerning her allegations, and the trial
judge carefully instructed the jurors how to assess the credibility
of the witnesses. In addition, the judge gave a "false in one,
false in all" charge, and told the jurors that if "any witness
. . . willfully or knowingly testified falsely to any material
facts in this case with intent to deceive[,]" the jurors could
"give such weight to his or her testimony as you may deem it is
entitled. You may believe some of it or you may, in your
discretion, disregard all of it."
12 A-2784-14T3
Given the trial judge's extensive credibility instructions,
we conclude that the issue of the reliability of defendant's
statement to M.L. was "thoroughly and sufficiently placed before
the jury." State v. Feaster, 156 N.J. 1, 73 (1998), cert. denied,
532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Thus,
the judge's failure to give a Kociolek instruction was not plain
error. Id. at 72-73 (finding no plain error even though the
defendant's incriminating oral statements were "at the heart of
the State's case against defendant").
IV.
Next, in Point III of his brief, defendant argues that the
prosecutor's remarks during summation denied him a fair trial.
This argument also lacks merit.
Prosecutorial misconduct is not a basis for reversal unless
the conduct was so egregious that it deprived the defendant of a
fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert.
denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
Considerable leeway is afforded to prosecutors in presenting their
arguments at trial "as long as their comments are reasonably
related to the scope of the evidence presented." State v. Frost,
158 N.J. 76, 82 (1999). When, as here, the defendant fails to
object to the prosecutor's comments at trial, the allegedly
"improper remarks . . . will not be deemed prejudicial." State
13 A-2784-14T3
v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S.
858, 122 S. Ct.136, 151 L. Ed. 2d 89 (2001).
Defendant first asserts that the prosecutor improperly
attempted to shift the burden of proof to him by telling the jury
in the portion of her summation where she discussed an abrasion
to M.L.'s knee that "[t]here is no explanation as to how that cut
got there, how the bruises and abrasions got there by the
[d]efense." However, even though defendant's attorney did not
object to the prosecutor's comment, the trial judge addressed it
on his own motion and issued a forceful and comprehensive curative
instruction to the jury at the conclusion of the summations.
The trial judge instructed the jury as follows:
Ladies and gentlemen, at one point during
her closing[,] [the prosecutor], in speaking
about the cut on the knee, indicated that the
[d]efense had offered no explanation, no
contrary explanation to the cut on the knee.
I simply want to instruct you at this point
that the State has the burden of proving [its]
charges beyond a reasonable doubt and that a
defendant in a criminal case has no obligation
to offer any proof whatsoever relating to his
innocence.
The judge provided an additional instruction during his final
charge to the jury on this point. The judge reminded the jury
that "[t]he burden of proving each element of a charge beyond a
reasonable doubt rests upon the State and that burden never shifts
to the defendant. The defendant in a criminal case has no
14 A-2784-14T3
obligation or duty to prove his innocence or offer any proof
relating to his innocence."
We presume that the jury followed the trial judge's
comprehensive instructions on the State's burden of proof. State
v. Smith, 212 N.J. 365, 409 (2012) (citing State v. Loftin, 146
N.J. 295, 390 (1996)), cert. denied, ___ U.S. ___, 133 S. Ct.
1504, 185 L. Ed. 2d 558 (2013). Thus, we discern no basis for
disturbing the jury's verdict based upon the prosecutor's brief
comment.
Defendant also complains that the prosecutor made the
following comment to the jury during her summation:
Defendant's version of what happened on May
22[,] 2005 does not make sense because it is
a story. It is a fabrication. It is a lie.
A lie that was made up in desperation by a man
whose DNA was found five years after this
brutal attack, this rape of this woman. How
could he explain the evidence? How could he
explain the DNA? The answer is clear. He has
to convince you, the jury[,] that the sex was
consensual.
However, the prosecutor's remarks challenging defendant's account
of the incident were not improper. Rather, they constituted
appropriate comment on defendant's testimony and the defense's
overall strategy of attempting to portray the incident as a
consensual sexual encounter initiated by M.L. in which defendant
15 A-2784-14T3
was a reluctant participant. Therefore, we reject defendant's
contention on this point.
V.
Finally, in Point IV of his brief, defendant argues that his
sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the
sentence is based on competent credible evidence and fits within
the statutory framework. State v. Dalziel, 182 N.J. 494, 500
(2005). Judges must identify and consider "any relevant
aggravating and mitigating factors" that "are called to the court's
attention[,]" and "explain how they arrived at a particular
sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting
State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review
of sentencing is deferential," and we therefore avoid substituting
our judgment for the judgment of the trial court. Id. at 65;
State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95
N.J. 334, 365 (1984).
We are satisfied that the sentencing judge made findings of
fact concerning aggravating and mitigating factors6 that were based
6
In a supplemental letter brief submitted pursuant to Rule 2:6-
11(d), defendant cites the Supreme Court's recent decision in
State v. Zuber, 227 N.J. 422, 448 (2017). In that case, the Court
held that before imposing a sentence upon a juvenile that is "the
practical equivalent of life without parole," the judge must
16 A-2784-14T3
on competent and reasonably credible evidence in the record, and
applied the correct sentencing guidelines enunciated in the Code.
Case, supra, 220 N.J. at 65; O'Donnell, supra, 117 N.J. at 215-
16. Accordingly, we discern no basis to second-guess the sentence.
Affirmed.
consider the defendant's "youth and its attendant characteristics"
as set forth in Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012). Here, however, the sentencing judge
considered defendant's purported age at the time of the offense,
and also did not impose a sentence that was the "practical
equivalent of life without parole." Ibid.
17 A-2784-14T3