SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1711-93T4
STATE OF NEW JERSEY,
Plaintiff/Respondent,
v.
EDWARD J. GALLAGHER,
Defendant/Appellant.
___________________________________________________________________
Submitted: October 12, 1995 - Decided: November 27, 1995
Before Judges Stern, Wallace and Newman.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County.
Susan L. Reisner, Public Defender, attorney
for appellant (Frank J. Pugliese, Assistant
Deputy Public Defender, of counsel and on
the brief).
Deborah T. Poritz, Attorney General of the
State of New Jersey, attorney for respondent
(Craig V. Zwillman, Deputy Attorney General,
of counsel and on the brief).
The opinion of the court was delivered by
WALLACE, JR., J.A.D.
Defendant was found guilty of aggravated sexual assault by
anal penetration in violation of N.J.S.A. 2C:14-2a (count one);
aggravated sexual assault by vaginal penetration while armed with
a weapon in violation in N.J.S.A. 2C:14-2a (count two); criminal
restraint in violation of N.J.S.A. 2C:13-2 (count three);
terroristic threats in violation of N.J.S.A. 2C:12-3a and/or 12-3b
(count four); possession of a handgun for an unlawful purpose in
violation of N.J.S.A. 2C:39-4a (count five); and robbery in
violation of N.J.S.A. 2C:15-1 (count seven). At the conclusion of
the State's case, the trial court dismissed the possession of an
imitation firearm for an unlawful purpose in count six. The trial
court sentenced defendant on count one to a twenty year term with
a ten year parole disqualifier; on count two to a consecutive
twenty year term with a ten year parole disqualifier; on count
three to a concurrent five year term; on count four to a concurrent
five year term; on count five to a concurrent ten year term; and on
count seven to a consecutive twenty year term with a ten year
parole disqualifier. The trial court also imposed VCCB penalties
totaling $20,120. Defendant's aggregate sentence was sixty years
in prison with a thirty year parole disqualifier.
In his brief on appeal defendant makes the following
contentions.
POINT I:
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS FEDERAL AND
STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE
PROCESS OF LAW BY FAILING TO SUBMIT THE LESSER INCLUDED
OFFENSES OF AGGRAVATED SEXUAL ASSAULT TO THE JURY, AND BY
ERRONEOUSLY INSTRUCTING THE JURY THAT "INSERTION OF THE
PENIS INTO THE CREVICE FORMED BY THE LEFT AND RIGHT
BUTTOCKS TO ANY DEGREE ... WOULD CONSTITUTE PENETRATION
FOR PURPOSES" OF FIRST DEGREE SEXUAL ASSAULT. (U.S.
CONST., AMENDS. VI, XIV; N.J. CONST., ART. I, PARS. I, 9,
10).
POINT II:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT VOICE IDENTIFICATION AND THE TAINTED IN-COURT VOICE IDENTIFICATION OF THE DEFENDANT BY THE VICTIM, AND THUS DENIED HIM HIS RIGHT TO A FAIR TRIAL UNDER THE UNITED
STATES AND NEW JERSEY CONSTITUTIONS. (U.S. CONST.,
AMENDS. VI; XIV; N.J. CONST., ART. I, PARS. 10).
POINT III:
THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE, AND
VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AND
FOURTEENTH AMENDMENTS.
A. THE IDENTITY OF DEFENDANT AS THE
ASSAILANT IN THIS CASE WAS NOT
ESTABLISHED BEYOND A REASONABLE DOUBT.
B. THE EVIDENCE RELATING TO COUNT ONE OF THE
INDICTMENT WAS INSUFFICIENT TO SUPPORT A
FINDING THAT DEFENDANT COMMITTED AN ACT
OF ANAL PENETRATION UPON THE VICTIM WITH
HIS PENIS.
POINT IV:
THE COURT ABUSED ITS DISCRETION BY IMPOSING MAXIMUM TERMS
AND BY ORDERING CONSECUTIVE SENTENCES ON COUNTS ONE, TWO
AND SEVEN. ADDITIONALLY THE COURT ABUSED ITS DISCRETION
BY ORDERING THE MAXIMUM V.C.C.B. PENALTIES ON COUNTS ONE
AND TWO.
A. THE MAXIMUM TERMS IN THIS CASE ARE MANIFESTLY
EXCESSIVE.
B. THE THREE CONSECUTIVE SENTENCES ARE NOT
SUPPORTED WITH ANY REASONS AND CAN NOT BE
JUSTIFIED.
C. THE MAXIMUM FINES ON COUNTS ONE AND TWO
ARE MANIFESTLY EXCESSIVE.
We hold that the jury charge on aggravated sexual assault by
anal penetration was erroneous, that lesser included offenses to
aggravated sexual assault by anal penetration should have been
charged, that the court failed to give reasons for imposing
consecutive sentences, and that it was an abuse of discretion to
impose an aggregate VCCB penalty of $20,120. In all other
respects, we affirm defendant's judgment of conviction.
The jury could reasonably have found from the evidence that on
October 17, 1991, around 8:20 p.m., M.M., a twenty-two year old
woman, left a health club in Pequannock to get into her car. As
she put her key into the door lock, she saw a man wearing a
stocking mask approach her with a gun. The man was wearing faded
blue jeans and a navy blue hooded sweatshirt. The man warned M.M.
that if she moved or screamed he would blow her brains out. He
then took her by her left arm and pushed her into the adjacent
woods which were dense and full of pricker bushes. M.M. told him
she could not go any further. The man put his hand over her mouth.
M.M. noticed his hands were white and thin with long fingernails.
She also detected a very foul odor.
M.M. asked the man what he wanted. He said that he was taking
her hostage because the police suspected him of committing a
robbery and had impounded his truck by the lake. M.M. continued to
ask the man questions even after he threatened to kill her. She
could not see his face but listened very carefully to his voice so
she could hopefully identify it later. The man continued to hold
the gun to her left side. He then took her to a masonry plant in
a secluded area. The man tied her wrists behind her back with wire
or plastic and put tape over her eyes and mouth. The tape was not
very sticky because M.M. could see by looking down, and the tape
loosened as she began to speak.
The man led her to another area and stood behind M.M. to push
her up an embankment. M.M. climbed over a fence and cut her leg.
The man told M.M. that if she said anything about this he would
kill her parents, tie her up, and force her to watch him having sex
with her two sisters. At a certain point the man stopped M.M., cut
her hands loose, and took her clothes off. The man ordered her to
get on her knees, but M.M. refused. He then told her to lean
forward and attempted anal penetration. M.M. kept moving forward
and would tense up to prevent penetration. M.M. said that the man
became frustrated and pulled his pants up.
The assailant then placed M.M.'s jacket on the ground and
ordered her to lay face down on her jacket. M.M. said she was
laying on her stomach when the man inserted a bottle of hair spray
into her vagina. He had apparently discovered the bottle of hair
spray among the contents of her pocketbook which he had dumped on
the ground. He told her to count to 200. M.M. heard him leave.
After counting to 100, M.M. got up, and noticed that her bra,
underwear, socks, and pocketbook with $30 were missing. She was
not sure whether the $30 consisted of three ten dollar bills or a
twenty dollar bill, a five dollar bill, and five one dollar bills.
She gathered her remaining belongings and made her way back to
the health club parking lot. There she encountered a spa employee,
James Kayal. She told Kayal of the assault. Kayal drove M.M. home
where she met her girlfriend who accompanied her to the Pequannock
police station. M.M. provided details of the attack to Patrolman
Louis Behrens at or about 9:30 p.m. She described her attacker as
being about five feet nine inches tall weighing between 140 and 160
pounds. She said he was wearing faded blue jeans, which were
frayed at the bottom, and a navy blue hooded sweatshirt. M.M.
described the man's voice as being "very lethargic" and "lower
class, uneducated."
Around 9:45 p.m. the police transported M.M. back to the
scene. Along the path leading to the scene of the assault, Behrens
found a piece of adhesive tape, a hair spray bottle, and an aspirin
container. M.M. was later taken back to the police station where
she was interviewed by Detective Catherine Fenske of the Morris
County Prosecutor's office. M.M. was then transported to the
hospital. After consulting with her supervisor, Fenske decided
that no rape test kit should be performed because of the limited
physical contact between M.M. and the attacker. The doctor
examined M.M.'s anal and vaginal area and reported no abnormalities
or bruises in her vaginal vault and no evidence of contusions on
the buttocks or evidence of any rectal tears.
At approximately 10:00 p.m. on October 17, Patrolman Paul
Rusiniak was in the police station when defendant entered and said
he was looking for Behrens, his stepfather, regarding the location
of his truck. Defendant asked Rusiniak what was happening at
Woodland Lake. At that point, Rusiniak was unaware of the sexual
assault that occurred near that location and replied nothing.
Defendant stated that he was in the park earlier that night with a
male he met there for the first time, and they saw flashing lights
near the masonry building. Defendant stated that when the other
man saw the lights he told defendant that "they must be looking for
us." Rusiniak called Detective Angelo Troiano and told him that
defendant might have some information about a crime committed at
Woodland Lake.
Troiano met with defendant. Defendant told Troiano that he
was riding his bicycle when a man approached and began talking.
Defendant again stated that the man commented that the police must
be looking for them. At that point Troiano informed defendant he
would contact him if he needed him.
Between the night of the assault and the time of his arrest,
defendant had several contacts with the police. On the morning of
October 18, Lieutenant William Montano and Detective Daniel Balunis
went to interview defendant at a gas station located about 300
yards from the scene of the assault. Defendant's truck had been
parked there for several months. When they arrived, defendant was
sitting against the tailgate of his truck wearing a dark blue
hooded sweatshirt. Defendant voluntarily returned to the police
station where his statement regarding the stranger at Woodland Lake
Park was videotaped.
Montano drove the defendant back to his truck. Montano then
searched the area where the assault took place. During part of
this search, defendant followed Montano and pointed out the spot
where he had met the man the night before. Approximately ten feet
from that spot, Montano discovered a blue Avon eye liner pencil,
which M.M. later identified as hers.
That same evening defendant was brought back to the station by
the police. Montano advised defendant of his Miranda rights at
7:45 p.m. Defendant waived his rights and gave a statement. At
some point, Montano confiscated $29 from defendant, consisting of
two ten dollar bills, one five dollar bill, and four one dollar
bills. During the interview, defendant expressed that there had
been an attempted or actual rape of a girl on the night of October
17 near Woodland Lake. He said he saw a female detective take the
victim to the hospital to "look for somebody's sperm or something
like that." Defendant said the money he had was the remainder of
fifty dollars he had earned two weeks before while working for a
carpenter. At or about 11:30 p.m. Montano executed a search
warrant of defendant's pickup truck. The police found two pairs of
blue jeans, one of which fit the victim's description of the faded
and frayed blue jeans worn by the assailant, a pair of brown work
boots, two blue hooded sweatshirts, and a box of flex cuffs.
On the morning of October 21, Montano picked defendant up at
his truck and drove him to the Morris County Prosecutor's office.
Detective Barry Arigo read defendant his rights and defendant
agreed to be interviewed. At one point defendant asked Arigo "why
was a gun used in this?". When Arigo asked him how he knew that a
gun had been used, defendant did not respond. Defendant was also
asked to give a voice exemplary. He recited two nursery rhymes on
a tape cassette. At the conclusion of the interview defendant was
arrested and charged with the crimes committed against M.M.
The next day, after Detective Loughman had prepared a voice
identification line-up, M.M. listened to the voices in the line-up.
When defendant's voice came on, M.M. appeared uneasy and disturbed
by the voice. She identified defendant's voice as that of her
assailant. At trial, M.M. also identified defendant's voice as
that of her assailant.
Defendant did not testify. He called several witnesses.
Detective Thomas Paradiso testified that he had examined various
pieces of evidence, including the tape used to cover M.M.'s mouth.
The one fingerprint found on the tape did not match defendant's
fingerprints. Other experts testified that no blood or hairs were
found on defendant's clothing submitted for testing.
Defendant contends that the trial court erred in instructing the jury with respect to the definition of penetration on count one. Further, he contends that this erroneous instruction precluded the trial court from instructing the jury on lesser included offenses such as attempted aggravated sexual assault, aggravated criminal sexual contact, and criminal sexual contact. We are convinced that the trial court erred in defining penetration and should have charged lesser included offenses.
A person is guilty of aggravated sexual assault if he or she "commits an act of sexual penetration" under certain circumstances, such as during the commission of a robbery or while armed with a weapon. N.J.S.A. 2C:14-2a(3) and (4). Sexual penetration is defined as "vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. The depth of insertion shall not be relevant
as to the question of commission of the crime[.]" N.J.S.A. 2C:14-1c. In contrast, aggravated criminal sexual contact occurs when a
person "commits an act of sexual contact" under any of the
circumstances listed in N.J.S.A. 2C:14-2a. N.J.S.A. 2C:14-3.
Sexual contact is defined as "an intentional touching by the victim
or actor, either directly or through clothing, of the victim's or
actor's intimate parts...." N.J.S.A. 2C:14-1d. "`Intimate parts'
means the following body parts: sexual organs, genital area, anal
area, inner thigh, groin, buttock or breast of a person[.]"
N.J.S.A. 2C:14-1e. In construing the terms contained in N.J.S.A.
2C:14-1, the court should employ their "ordinary and well
understood meaning." State v. Fraction,
206 N.J. Super. 532, 535
(App. Div. 1985), certif. denied,
104 N.J. 434 (1986).
We begin with the "basic tenet of statutory construction that
penal statutes are to be strictly construed in favor of the
accused. Nevertheless, the construction must conform to the intent
of the Legislature." In re M.T.S.,
129 N.J. 422, 431 (1992). A
plain reading of the definition of penetration dictates that
touching the buttocks or slightly penetrating between the two
cheeks does not constitute anal penetration. While the depth of
insertion is not relevant, there must be an insertion "into the
anus" in order to prove penetration. N.J.S.A. 2C:14-1c.
In the present case, the trial court charged the jury on count
one that "insertion of the penis into the crevice formed by the
left and right buttocks to any degree" constituted penetration.
This was error. Anal intercourse requires penetration, however
slight, into the anus. See State v. Fraction, supra, 206 N.J.
Super. at 536. While insertion of the penis between the left and
right buttocks may be sufficient to prove sexual contact in that
there is a touching of the victim's intimate part, it is not
sufficient to prove anal intercourse.
Defendant also urges that the trial court erred in failing to
charge lesser included offenses of aggravated sexual assault. We
agree with this contention. A defendant "is entitled to a charge
on all lesser included offenses supported by the evidence." State
v. Short,
131 N.J. 47, 53 (1993). Moreover, the trial court should
charge a lesser included offense when the evidence would warrant a
conviction for that offense even if the defendant does not request
the charge. See State v. Clark,
198 N.J. Super. 219, 224 (App.
Div. 1985). We are satisfied that the evidence presented "a
rational basis on which the jury could acquit the defendant of the
greater charge and convict defendant of [a] lesser." State v.
Brent,
137 N.J. 107, 117 (1994).
Here, the jury could have convicted defendant of attempted
aggravated sexual assault by finding that defendant intended to
engage in anal penetration during the commission of a robbery, but
did not succeed in penetrating M.M. N.J.S.A. 2C:14-2a and N.J.S.A.
2C:1-8d. Further, the evidence adduced at trial could have
supported a conviction for attempted sexual assault if the jury
found that defendant intended to engage in anal penetration with
M.M. but failed to complete the act. N.J.S.A. 2C:14-2c(1). Also,
the jury could have convicted defendant of aggravated criminal
sexual contact by determining that defendant intentionally touched
M.M.'s buttocks with his penis during the commission of a robbery,
but did not intend anal penetration. N.J.S.A. 2C:14-3a. Finally,
the jury could have found defendant guilty of criminal sexual
contact by concluding that defendant intentionally touched M.M.'s
buttocks with his penis, but not during the commission of the
robbery. N.J.S.A. 2C:14-3b.
As a general rule, when a conviction for the greater offense
is vacated for failure to charge the jury on the lesser included
offense, the State can request that the court sentence the
defendant for the lesser included offense in lieu of a new trial,
if the jury verdict "constitutes a finding that all the elements of
a lesser included offense have been properly established and no
prejudice to the defendant will result." State v. Hauser,
147 N.J.
Super. 221, 228 (App. Div.), certif. denied,
75 N.J. 27, 28 (1977);
State v. Alexander,
215 N.J. Super. 522, 531 (App. Div. 1987).
Here, the State urges that we order that a judgment of conviction
be entered on the lesser included offense of attempted aggravated
assault. In our view, that is not appropriate in this case because
we do not know which lesser included offense the jury might find
defendant committed.
Moreover, after careful review of the record, we are satisfied
that there was insufficient evidence to submit the issue of anal
penetration under count one to the jury, and therefore the charge
of aggravated sexual assault must be dismissed. M.M. at first
testified that defendant touched the outside of her buttocks with
his penis but did not penetrate between the crevice. The next day
M.M. testified that she had misunderstood some of the questions
posed to her about the assault. In response to the prosecutor's
comment to tell what happened with respect to the attempted sodomy,
M.M. replied:
[a]s [defendant] told me to lean forward,
he -- I felt himself press up against me in
which I was so tense that he did not enter -
there was no anal penetration, but there was
penetration against my buttocks.
The evidence is clear that the defendant did not penetrate the
victim's anus with his penis. As penetration is a necessary
element for a conviction of aggravated sexual assault by anal
penetration, the failure to prove penetration is fatal to that
charge. Consequently, we reverse defendant's conviction of
aggravated sexual assault by anal penetration under count one. If
the State seeks to retry defendant under count one, it may proceed
only on the lesser included offenses.
We turn now to defendant's argument that the voice identification procedure was impermissibly suggestive and denied him due process. Further, defendant contends that the out of court identification tainted the in-court voice identification of the defendant by the victim. We disagree. In our view the voice identification procedure was not impermissibly suggestive.
The constitutional safeguards that apply to visual identifications also apply to voice identifications. State v.
Clausell,
121 N.J. 298, 328 (1990); State v. Johnson,
138 N.J.
Super. 579 (App. Div.), certif. denied,
71 N.J. 340 (1976). A
"voice identification is inadmissible if its reliability is
outweighed by the suggestiveness of the identification procedure."
Reliability depends on such factors as the witness's opportunity to
hear the accused and the consistency with prior voice
identifications." State v. Clausell, supra, 121 N.J. at 328. In
other words, the witness must have an adequate basis for comparing
defendant's voice with the voice he or she identified as the voice
of the assailant. State v. Johnson, supra, 138 N.J. Super. at 582.
A two step analysis must be applied to determine the
admissibility of M.M.'s voice identification of defendant. State
v. Madison,
109 N.J. 223, 232-33 (1988). In Madison, our Supreme
Court noted:
a court must first decide whether the
procedure in question was in fact
impermissibly suggestive. If the court does
find the procedure impermissibly suggestive,
it must then decide whether the objectionable
procedure resulted in a "very substantial
likelihood of irreparable misidentification."
Simmons v. United States, supra, 390 U.S. at
384, 88 S. Ct. at 971, 19 L. Ed.
2d at 1253;
accord Neil v. Biggers, supra, 409 U.S. at
199-201, 93 S. Ct. at 382-383, 34 L. Ed.
2d at
411; Stovall v. Denno, supra, 388 U.S. at 302,
87 S. Ct. at 1972, 18 L. Ed.
2d at 1206. In
carrying out the second part of the analysis,
the court will focus on the reliability of the
identification. If the court finds that the
identification is reliable despite the
impermissibly suggestive nature of the
procedure, the identification may be admitted
into evidence. "Reliability is the linchpin
in determining the admissibility of
identification testimony...." Manson v.
Brathwaite, supra, 432 U.S. at 114, 97 S. Ct.
at 2253, 53 L. Ed.
2d at 154. The reliability
determination is to be made from the totality
of the circumstances adduced in the particular
case. Neil v. Bigger, supra, 409 U.S. at 199,
93 S. Ct. at 382, 34 L. Ed.
2d at 411.
[State v. Madison, supra, 109 N.J. at 232-33].
A review of several cases is helpful. In Clausell, our
Supreme Court held that the totality of the circumstances indicated
that the suggestive identification was unreliable. Clausell,
supra, 121 N.J. at 328-29. The only voice identification occurred
in the courtroom and the defendant was the only person who spoke.
Ibid. Defendant spoke the words that the perpetrator spoke on the
night the crime was committed and twenty months had elapsed between
the commission of the crime and the in-court identification. Id.
at 329. The witness only heard the perpetrator speak two words on
the night when the crime was committed and her in-court
identification was not bolstered by any pretrial voice
identification. Ibid. Finally, although the witness identified
his voice as the voice of the perpetrator, she testified that there
was nothing distinct about the defendant's voice. Ibid.
In State v. Johnson, supra, 138 N.J. Super. at 585, the court
concluded that the victim's voice identification was reliable
because the assailant carried on a conversation with the victim for
a half hour before, during, and after the sexual assault. Further,
the victim was alert, gave an accurate description of defendant's
voice, and made a positive identification the day after the attack
at a voice "show-up" at police headquarters. Id. at 584.
In United States v. Schultz,
698 F.2d 365 (8th Cir. 1983), a
pretrial voice lineup occurred that was similar to the procedure
used in the case at bar. The defendant alleged that the recording
of his voice sounded halting and uneducated with an accent while
the voices of the five FBI agents who participated in the lineup
sounded educated and highly trained. Id. at 367. The court stated
that the difference in accent and vocal style was not so pronounced
as to result in impermissible suggestiveness, but the discrepancy
in volume and sound resolution when defendant's voice was played
did amount to impermissible suggestiveness. Id. at 367-68.
Nevertheless, the court found that the in-court identification was
admissible because the witnesses paid careful attention to the
extortionist's voice even though they only heard it for a short
period of time, neither witness equivocated in the identification
of defendant even though neither provided a description of the
extortionist's voice prior to trial, and the three months that
elapsed between the crime and the lineup did not render the
identifications unreliable. Id. at 368.
In United States v. Patton,
721 F.2d 159, 162-63 (6th Cir.
1983), the court found that the in-court voice identification was
admissible because the witness received threats on four separate
occasions, the fact that she could repeat the threats demonstrated
a high level of concentration, and her exposure to defendant's
voice during the pretrial lineup was minimal. Further, only three
weeks elapsed between the commission of the crime and the pretrial
lineup. In addition, upon hearing defendant's voice the witness
"immediately recoiled" indicating a familiarity with the voice from
the four threatening phone calls. Id. at 162.
In United States v. Duran,
4 F.3d 800, 803 (9th Cir. 1993),
cert. denied, ___ U.S. ___,
114 S. Ct. 894,
127 L. Ed.2d 87
(1994), the court held that an in-court voice identification was
reliable because the witnesses who were bank tellers had a
sufficient opportunity to hear the bank robber who shouted several
commands and threats, the tellers were most likely quite attentive
due to the presence of a weapon accompanied by threats, they
provided accurate descriptions of defendant's distinctive voice,
and neither witness equivocated in her identification of defendant.
In the instant matter, at a pretrial hearing held on the issue
of M.M.'s voice identification of defendant, Loughman testified
that after listening to defendant's voice on a tape, he selected
people he concluded had voices similar to defendants. The voice
array contained six voices, including defendant's, who each recited
identical nursery rhymes. Prior to playing the tape for M.M.,
Loughman told her that she would be listening to tapes of nursery
rhymes recited by six different voices, that "one of them may or
may not be the voice of the assailant," and that after listening to
all the voices she should advise him if she could "recognize anyone
specifically." After listening to the voices on the tapes, M.M.
replied "number four, that's the one, I'll never forget that
voice." Number four was the voice of the defendant. The trial
court listened to the tapes. The court found that several voices
sounded similar to defendant's voice and concluded that the voice
lineup "does not give rise to any suggestibility." We are
satisfied there was sufficient credible evidence in the record for
the trial court to reach this conclusion. State v. Johnson,
42 N.J. 146, 161-62 (1964).
Even if we were to conclude the out-of court identification
procedure was impermissibly suggestive, we would still conclude
that the voice identification was reliable. M.M. had ample
opportunity to listen to her attacker's voice because she engaged
him in conversation by asking him questions. She said she intently
listened to his voice hoping that she could later identify him.
Further, she described her attacker's voice to the police and the
pretrial voice identification occurred only a few days after the
incident. Moreover, M.M. never equivocated in her identification
of defendant's voice as the voice of the assailant. Under the
totality of circumstances, we are satisfied that there was no
substantial likelihood of misidentification in M.M.'s
identification of defendant's voice, both out-of court and in-court.
Defendant next contends that the verdict was against the weight of the evidence because the State failed to prove the identity of defendant as the assailant beyond a reasonable doubt and failed to prove he committed aggravated sexual assault by anal penetration. We previously expressed our agreement with defendant's contention that the State failed to prove anal penetration. However, we find no basis to support defendant's claim that there was insufficient evidence to conclude that
defendant was the perpetrator of the crimes and therefore the
remaining verdicts were against the weight of the evidence. There
was ample evidence linking the defendant to the crimes. M.M's
description of her attacker's fingernails as long and his hands as
white, thin, dirty and emitting a foul odor matched the
observations of defendant by the police officers. M.M. identified
ties found in defendant's truck as similar to those used to bind
her hands. She also identified a blue hooded sweatshirt and pair
of blue jeans found in defendant's truck as the clothing worn by
her assailant.
Furthermore, the assailant had taken thirty dollars from M.M's
pocketbook, consisting of either three ten dollar bills or a twenty
dollar bill, a five dollar bill, and five single dollar bills. On
October 18, 1991 Montano confiscated twenty nine dollars from
defendant, consisting of two ten dollar bills, one five dollar bill
and four one dollar bills. Further, in defendant's various
statements to the police, he insisted that he left the Pequannock
library at 8:55 p.m. on October 17, but a librarian testified that
he could not have been there that late.
More importantly, M.M. identified defendant's voice both out
of court and in court, as the voice of her assailant. If believed,
the witnesses presented by the State provided overwhelming evidence
of defendant's guilt. The evaluation of the credibility of the
witnesses is the function of the jury. State v. Brown,
118 N.J. 595, 618 (1990). Consequently, we find no cause to conclude that
the jury's verdict constituted a miscarriage of justice under the
law. R. 2:10-1; State v. Sims,
65 N.J. 359, 373-74 (1974).
Defendant's final argument pertains to his sentence. He contends that his sentence is excessive, both with respect to the length of the prison terms and the Violent Crimes Compensation Board penalties imposed, and that the trial court violated the consecutive sentencing guidelines set forth in State v. Yarbough, 100 N.J. 627 (1985), certif. denied, 475 U.S. 1014 (1986).
We find no sound basis to disturb the trial court's findings of five aggravating factors and no mitigating factors. There is ample support in the record for the conclusion that the crimes were committed in an especially heinous, cruel or depraved manner. N.J.S.A. 2C:44-1a(1). As pointed out previously, the victim was abducted at gunpoint, her hands tied behind her back, her eyes and mouth taped, and she was taken to an isolated area and sexually assaulted. To be sure, the defendant's use of a gun was an element of the aggravated sexual assault. However, considering all of the circumstances, we do not regard the trial court's reference to defendant's use of a gun as improper double counting. The court also cited the gravity and seriousness of harm. N.J.S.A. 2C:44-1a(2). The court noted that the victim was rendered "substantially incapable of exercising [her] normal physical or mental power of resistance." Undoubtedly, the court was also influenced by the victim's comment at sentencing that she carries "constant pain of
self-degradation" and that she "will always be a prisoner of fear,"
in reaching its finding. Even if this finding is error, we would
regard the court's error as harmless. The court further determined
that there was a substantial risk of future recidivism as evidenced
in part by defendant's lengthy history of criminal activity.
N.J.S.A. 2C:44-1a (3), (6) and (9). The evidence supports the
court's finding in that regard and its conclusion that there were
no mitigating factors. See State v. Roth,
95 N.J. 334, 365-66
(1984).
When the aggravating factors preponderate over the mitigating
factors, the trial court may impose a sentence higher than the
presumptive term. See State v. Kruse,
105 N.J. 354, 358 (1987).
Although not expressly noted by the court, it obviously concluded
that the aggravating factors substantially outweighed the non-existent mitigating factors to impose a maximum sentence of twenty
years and a ten-year period of parole ineligibility. N.J.S.A.
2C:43-6b. We affirm the sentence imposed on counts two, three,
four, five and seven.
Defendant also urges that the trial court abused its
discretion in the imposition of consecutive sentences.
Specifically he contends that the court failed to give any
statement of reasons for the imposition of consecutive terms. The
State argues that the consecutive sentences did not violate the
guidelines set forth in State v. Yarbough, supra,
100 N.J. 627.
N.J.S.A. 2C:44-5a expressly gives the sentencing court
discretion to impose consecutive sentences. In Yarbough, supra,
100 N.J. 627, the Supreme Court noted that "in fashioning
consecutive or concurrent sentences under the Code, sentencing
courts should be guided by the Code's paramount sentencing goals
that punishment fit the crime, not the criminal...." Id. at 630.
Specifically the Court stated the following criteria should be
considered:
(1) there can be no free crimes in a system
for which the punishment shall fit the crime;
(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing decision;
(3) some reasons to be considered by the
sentencing court should include facts relating
to the crimes, including whether or not:
(a) the crimes and their objectives
were predominantly independent of
each other;
(b) the crimes involved separate
acts of violence or threats of
violence;
(c) the crimes were committed at
different times or separate places,
rather than being committed so
closely in time and place as to
indicate a single period of aberrant
behavior;
(d) any of the crimes involved
multiple victims;
(e) the convictions for which the
sentences are to be imposed are
numerous;
(4) there should be no double counting of
aggravating factors;
(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense; and
(6) there should be an overall outer limit on
the cumulation of consecutive sentences for
multiple offenses not to exceed the sum of the
longest terms (including an extended term, if
eligible) that could be imposed for the two
most serious offenses.
Id. at 643-44.
We are unable to discern from the record the analysis used by
the trial court because it failed to give reasons for imposing
consecutive sentences. Consequently, we remand for the trial court
to articulate reasons for imposing either consecutive or concurrent
sentences.See footnote 1
Finally, defendant urges that the maximum Violation Crimes
Compensation Board (VCCB) penalties imposed on counts one and two
are manifestly excessive because the trial court failed to consider
defendant's present ability to pay those penalties.
N.J.S.A. 2C:43-3.1a(1) provides in pertinent part:
any person convicted of a crime of violence ... shall be
assessed at least $100.00, but not to exceed $10,000.00
for each such crime for which he was convicted which
resulted in the injury or death of another person. In
imposing this assessment, the court shall consider
factors such as the severity of the crime, the
defendant's criminal record, defendant's ability to pay
and the economic impact of the assessment on defendant's
dependents.
In State v. Pindale,
249 N.J. Super. 266, 289 (App. Div. 1991), we
noted that the trial court should have expressed its reasons for
imposing VCCB penalties of $2,500 on defendant's three manslaughter
convictions, even though the penalties were within the permissible
range.
Here, the trial court did not set forth its reasons for
imposing the maximum penalty of $10,000 on counts one and two. The
only comment the trial court made was that defendant might come
into a substantial amount of money in the future that would enable
him to pay the penalties which the court acknowledged he could not
currently pay. In our view, that was not enough. If that reason
were deemed sufficient, the imposition of the maximum penalty could
be justified in every crime of violence. There must be some
relationship between defendant's ability to pay over the course of
his incarceration and parole, and the actual VCCB penalty imposed.
See State v. Newman,
132 N.J. 159, 169 (1993) (before imposing a
fine or restitution the court must determine if defendant will be
able to pay it). We reverse the imposition of the maximum VCCB
penalty and remand for reconsideration.
In sum, the conviction on counts two, three, four, five and seven are affirmed. We reverse the conviction of aggravated sexual assault in count one and dismiss that charge. If the matter is retried, the State may proceed on attempted aggravated assault and the lesser included offenses of count one, but not on aggravated sexual assault. We remand for reconsideration of the imposition of consecutive sentences and the amount of the VCCB penalty, which
should await the result of any retrial. We do not retain jurisdiction.
Footnote: 1 The Legislature amended N.J.S.A. 2C:44-5 to provide that the sentencing judge may impose any number of consecutive sentences. This will affect some of the factors delineated in Yarbough, supra 100 N.J. 627 (1985). The amendment became effective August 5, 1993. The crimes here were committed in 1991. Both the State and defendant urge that the Yarbough factors apply. We agree.