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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3047-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.S.,1
Defendant-Appellant. _______________________
Argued March 5, 2026 – Decided March 19, 2026
Before Judges Mawla and Marczyk.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 20-12- 0509.
Melissa Rosenblum argued the cause for appellant (Law Offices of Melissa Rosenblum, LLC, attorneys; Melissa Rosenblum and Marissa Keddis, on the briefs).
Kimberly P. Will, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae,
1 We use initials to protect the victim's identity. R. 1:38-3(d)(10). Cumberland County Prosecutor, attorney; Kimberly P. Will, of counsel and on the brief).
PER CURIAM
Defendant J.S. appeals from his convictions for: first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(4); first-degree kidnapping, N.J.S.A. 2C:13-
1(b)(2); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); second-degree
burglary, N.J.S.A. 2C:18-2(a)(1); third-degree terroristic threats, N.J.S.A.
2C:12-3(b); third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-4(d); and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). We
affirm.
Defendant and the victim A.R. were romantic partners for twenty-four
years and have two adult sons. In August 2019, A.R. broke up with defendant
due to his infidelity. In 2020, after giving defendant a second chance, A.R. told
him she did not love him and the relationship was over.
A.R. resided with the younger son in a home she, alone, owned. The
younger son was approximately twenty years old. Defendant previously lived
at the same address, but by 2020, A.R. did not allow him in her house.
Nevertheless, defendant would constantly come over, uninvited, and the parties'
son would let him in while A.R. was at work. Defendant refused to return his
A-3047-23 2 house key, so A.R. changed the locks. A.R. testified she wanted nothing to do
with defendant, but he refused to believe the relationship was over and always
asked her for sex.
On the night of August 12, 2020, A.R. was preparing to fly to Texas the
following morning to visit her boyfriend, whom she had been seeing for a few
months. She spoke on the phone with her boyfriend and then went to bed. A.R.
did not tell defendant about the relationship.
A.R. woke up around midnight to find defendant standing at the foot of
her bed. When defendant saw she was awake, he reached to turn on the vanity
light. A.R. jumped, sat up on her bed, and screamed. She testified defendant
"just went off," calling her a "f[**]king ho" and a "bitch." He said he was in the
closet recording her the entire time and heard everything she said to her
boyfriend. Defendant "just kept going on and on and on, just screaming and
yelling" at A.R. He then picked up a hatchet and charged at A.R., which made
her "even more scared."
Defendant ordered A.R. to take her clothes off. She asked if he was crazy,
and he replied, "I'm going to kill you." He raised the hatchet "as if he was going
to hit" A.R. and again told her to undress. As A.R. was removing her clothes,
A-3047-23 3 defendant held his phone as if to record her. He narrated her actions stating,
"she's getting undressed." A.R. thought he was recording to humiliate her.
Once A.R. was nude, defendant pulled his pants down and sat on the edge
of the bed, setting the hatchet down next to him. He grabbed A.R.'s hair and
tried to make her perform oral sex. A.R. "kept saying no," but when she opened
her mouth, defendant forced his penis inside her mouth. This lasted "a few
minutes."
Because A.R. was not complying with defendant's demands, he stood up
and ordered her to lie on the bed. He took off his pants and climbed on top of
A.R., while "saying [']you love me.[']" A.R. said she did not love defendant and
told him to get off her. Defendant masturbated to get an erection and penetrated
A.R.'s vagina with his penis. He "said that it was his p[***]y for [twenty-four]
years[ so] he could [do] what he wants." A.R. stared at the ceiling and tried to
stay still until defendant finished. She did not want to chance getting hurt
because he still had the hatchet at his side. Defendant ejaculated after a few
minutes.
Defendant got off the bed and went to open the bedroom door. A.R. also
stood up and tried to get dressed. Defendant picked up his cell phone to record
her. He said they had "just finished having sex," and that he "nutted in [A.R.]
A-3047-23 4 and that [she] liked it." Defendant then put the phone down and threatened that
he "was going to put [the video] on social media so everybody could see . . . the
dirty ho that [A.R. was]."
A.R. testified defendant stood near the door and "guarded it." The hallway
outside her bedroom was narrow. Their younger son was inside his bedroom
located next to hers. She testified defendant "started telling [their son] that your
mom is trying to say that I raped her" and asked the son if he "even hear[d] her."
A.R. went to the bathroom, located in the same hallway, beyond the son's
room, and washed herself. When she came out, defendant was still standing at
her bedroom door. She felt she had no way to leave because she would have to
pass defendant in the narrow hallway to exit. So, A.R. returned to the bedroom
and lay on the bed, hoping defendant would leave.
Defendant asked A.R. if she was going to call the police. When she
responded she was, defendant said he "d[id]n't give a f[**]k, that he'[d] kill
[her]." Defendant found A.R.'s cell phone on her jewelry box and smashed it
with the hatchet, damaging the box as well. He threw the phone at A.R., and it
fell behind her bed. According to A.R., defendant was so angry she "d[id]n't
know what he was going to do" next.
A-3047-23 5 Defendant then took lotion from A.R.'s vanity and began massaging her
feet. He held up his phone "like he was going to record" her, and said, "I'm
massaging her feet right now, and she likes it." A.R. thought if she stayed quiet,
defendant would leave. However, after he finished massaging her feet,
defendant stood in the bedroom for approximately two hours "just talking and
running his mouth," "accusing" A.R. of "trad[ing] him for someone else."
Defendant said he would come back "whenever the f[**]k he wanted to."
Defendant eventually left. A.R. assumed he took the hatchet with him,
because she could not find it afterward. Police never found the hatchet.
A.R. testified she was scared when she was in the bedroom with
defendant. She did not feel free to leave because "[h]e guarded the door." A.R.
did not try to escape because she feared defendant would kill her. She did not
call the police that night because defendant broke her phone, and she lacked a
land line.
The following morning, A.R. went to her father's house and spoke with
her adult daughter, who contacted police. A.R. gave a statement at the police
station and then went to the hospital for a rape kit examination. The examination
produced no DNA evidence of a sexual assault. A.R. gave her phone to
A-3047-23 6 detectives who observed it was "slightly concave," "crushed," and had "pieces
of the glass . . . falling out."
Police contacted A.R.'s sons. The older son initially agreed to give a
statement but then declined. The younger son was interviewed. However, no
witness testified about what he said during the interview.
Police located defendant, arrested him, and seized his cell phone. State
Police extracted data from the phone and found a video from the morning of
August 13, 2020, showing A.R. lying on her bed. In the video, defendant says,
"I had to record it," and A.R. replies, "You raped me. Get out."
Another video showed defendant's conversation with the younger son, in
which defendant asked: "Did you hear your mom screaming saying I raped—
I'm raping her? Listen, did you hear her say I'm raping her?" The son, who was
wearing headphones and playing a video game, replied, "No." Defendant then
said: "We just had sex, me and her. She's trying to make it look like I raped
her." The son answered, "You're trying to make it seem like it's that big of a
f[**]kin' deal." Defendant reiterated he and A.R. "were just having sex."
In the recording, defendant continued:
I came here[,] I thought I would bust a nut. I told her to take her clothes off. At first she said no, and then she threw her clothes off. I got on top of her and I got a no. That's what happened. I busted a nut on her. I
A-3047-23 7 did not rape her. She's ready to say I raped her. [To the younger son: D]id you hear her say your dad['s] raping me? Did you hear her screaming at all? Yes or no? . . . Did you hear your mom screaming or anything, making any noise, tell me to stop? Did you hear any of the above? Did you hear any of that? Yes or no?
The younger son replied, "No." The recording ends with defendant saying, "No?
Okay. That's all I wanted to know."
Defendant also had video recordings on his phone from the night of the
incident of a woman's voice discussing her family and other matters. At trial,
A.R. identified the voice as hers and said it was the conversation she was having
with her boyfriend before she went to bed on August 12. She was unaware
defendant was in her home when these recordings were made. Another video,
taken at 12:17 a.m. on August 13, showed the same type of pants A.R. said
defendant was wearing when he attacked her.
No recordings were found on defendant's phone of A.R. undressing or of
any sexual activity between the couple. When confronted about this at trial,
A.R. testified she assumed defendant was recording her because of the way he
was holding the phone.
Part of the defense to the burglary charge centered on the assertion that
contrary to A.R.'s claims, defendant was invited to the house to fix a water pump.
The parties stipulated the younger son contacted defendant to request he come
A-3047-23 8 to fix the pump. A.R. did not discuss inviting defendant to her home with her
son for this purpose and she did not know if defendant repaired the pump, but
the home had running water on the date of the incident.
Defendant raises the following points on appeal:
POINT I. THE TRIAL COURT COMMITTED A MULTITUDE OF REVERSIBLE ERRORS THAT WARRANT A NEW TRIAL.
A. THE TRIAL COURT COMMITTED A REVERSIBLE ERROR BY ALLOWING JUROR NUMBER TWO TO SERVE ON THE JURY, DESPITE VIEWING [DEFENDANT] IN HANDCUFFS PRIOR TO THE START OF TRIAL.
B. THE COURT COMMITTED A REVERSIBLE ERROR IN FAILING TO PROVIDE A CURATIVE INSTRUCTION TO THE JURY. (NOT RAISED BELOW).
C. THE COURT COMMITTED REVERSIBLE ERROR BY DENYING [DEFENDANT]'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE KIDNAPPING CHARGE AS A MATTER OF LAW.
i. THERE WAS INSUFFICIENT EVIDENCE SUBMITTED TO THE JURY THAT A.R. WAS KIDNAPPED.
ii. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A KIDNAPPING CHARGE, SINCE A.R. WAS NOT UNLAWFULLY CONFINED
A-3047-23 9 IN THE BEDROOM PURSUANT TO RELEVANT STATUTES AND CASE LAW.
iii. THERE WERE INSUFFICIENT FACTS TO SUPPORT A KIDNAPPING CHARGE AS ANY ALLEGED CONFINEMENT WAS NOT FOR A SUBSTANTIAL PERIOD OF TIME OR A PERIOD OF TIME MORE THAN INCIDENTAL TO THE ALLEGED SEXUAL ASSAULT AND DID NOT POSE AN INCREASED RISK OF HARM TO A.R.
D. THE COURT ERRED BY DENYING [DEFENDANT]'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE BURGLARY CHARGE AS A MATTER OF LAW.
i. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION AS SET FORTH IN [STATE V.] REYES[2] FOR BURGLARY, AS [DEFENDANT] ENTERED THE HOME AT THE INVITATION OF HIS SON TO FIX THE WATER PUMP AND NOT [TO] COMMIT A CRIME.
E. THE COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL PURSUANT TO R[ULE] 3:20-1.
F. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO
2 50 N.J. 454 (1967). A-3047-23 10 GRANT A CONTINUANCE TO ALLOW [DEFENDANT TO] RETAIN NEW COUNSEL.
G. THE CUMULATIVE ERRORS, INDIVIDUALLY AND COLLECTIVELY, WARRANT THE GRANTING OF A NEW TRIAL.
POINT II: [DEFENDANT]'S SIXTH AMENDMENT RIGHT TO EFFECTIVE COUNSEL WAS VIOLATED WARRANTING A NEW TRIAL. (NOT RAISED BELOW).
I.
In Point I.F of his brief, defendant argues his constitutional right to choice
of counsel was violated when the trial judge denied his request for an
adjournment to hire a new attorney. He claimed he could not have a fair trial
because there was a communication breakdown between he and his counsel, he
did not receive all the discovery, and counsel coerced him to go to trial—all of
which the judge ignored. Instead, defendant maintains the judge was more
concerned about the trial calendar.
In considering whether to adjourn a matter for a defendant to seek new
counsel, "the trial court must strike a balance between its inherent and necessary
right to control its own calendar and the public's interest in the orderly
administration of justice, on the one hand, and the defendant's constitutional
right to obtain counsel of [their] own choice, on the other." State v. Maisonet,
A-3047-23 11 245 N.J. 552, 566 (2021) (quoting State v. Hayes, 205 N.J. 522, 538 (2011)).
"To help trial judges balance the relevant interests when a defendant seeks an
adjournment to retain counsel, we adopted a series of factors from" other
jurisdictions. Ibid. Those factors include:
the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case.
[State v. Furguson, 198 N.J. Super. 395, 402 (App. Div. 1985) (quoting United States v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978)).]
"[T]he right to retain counsel of one's own choice is not absolute, and
'cannot be insisted upon in a manner that will obstruct an orderly procedure in
courts of justice and deprive such courts of the exercise of their inherent powers
to control the same.'" Id. at 401 (citations omitted) (quoting Smith v. United
A-3047-23 12 States, 288 F. 259, 261 (D.C. Cir. 1923)). A trial court has "the power to tightly
control its own calendar so that the assignment of cases cannot be manipulated
by . . . the defendant." Ibid. As a result, a defendant must "act expeditiously in
obtaining counsel of [their] own choice." Ibid.
"Trial courts have broad discretion in weighing the factors and striking
the proper balance, and their decisions are entitled to deference on appeal."
Maisonet, 245 N.J. at 566. Judges are "require[d] . . . to conduct a 'reasoned,
thoughtful analysis'" of these factors when a defendant requests an adjournment
to hire new counsel. Id. at 559 (quoting State v. Kates, 216 N.J. 393, 396-97
(2014)). A decision on whether to grant a continuance to a defendant who wants
to change counsel is reviewed for an abuse of discretion. Id. at 560.
Pursuant to these principles, we are satisfied the trial judge did not abuse
his discretion when he denied defendant's request for new counsel. Defendant
sent a letter to the court seeking new counsel on the first day of trial when a jury
was about to be picked. He claimed A.R. signed an affidavit, recanting her
allegations. Defense counsel interviewed A.R. prior to trial and explained, in
detail, to the judge why this was not true, that A.R. had not signed an affidavit,
and had every intention of seeing defendant prosecuted.
A-3047-23 13 Counsel denied pressuring defendant to proceed to trial. On the contrary,
he asserted he counseled defendant to consider taking a plea and to receive a
lesser sentence because he had exposure to a life sentence. Defendant's reply to
counsel's advice was "let's do life." The judge observed the State's offer was a
five-year flat sentence, and defendant had already spent thirty-six months in
jail.3
Defense counsel explained how he was personally committed to defendant
and defendant never expressed a desire to replace him. He continued to
represent defendant, even though defendant's relatives had ceased paying his
fees because defendant's "liberty [wa]s at stake." Counsel nonetheless used his
personal funds to purchase clothing for defendant to wear at trial after a relative
failed to provide clothing.
Defense counsel explained defendant had the discovery, noting his office
had re-sent all the discovery to him. Defendant told counsel's secretary he had
relocated his bunk area in the jail and may have lost some materials in the
process. Counsel said he would be "glad to provide" defendant with the material
he claimed he did not have.
3 Following defendant's conviction, he received an aggregate sentence of twenty-five years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. A-3047-23 14 The judge analyzed the Furguson factors and concluded a new attorney
would likely take "a substantial amount of time" to get "up to speed," because
the case was "complicated" and involved "a lot of different charges" with serious
potential consequences. Defendant did not have other competent counsel
prepared to try the case. The judge observed the parties had been "laboring . . .
[for] several months" to get the case to the point of jury selection, and there had
been "a number of continuances." The court held roughly thirteen conferences,
and the case was trial-ready months in advance of the first trial date. The judge
concluded defendant was not prejudiced by continuing with his attorney.
The record amply supports the judge's decision to deny defendant's
request was not an abuse of discretion. None of defendant's reasons for wanting
new counsel at the eleventh hour were supported by the facts in the record.
II.
In Points I.A and I.B, defendant argues the trial judge should have
dismissed a juror whom defendant claims saw him in handcuffs prior to trial.
For the first time on appeal, he claims the court erred by failing to issue a
curative instruction concerning his incarceration and to explain his appearance.
The Sixth Amendment to the United States Constitution and Article I,
paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
A-3047-23 15 right to an impartial jury during trial. State v. R.D., 169 N.J. 551, 557 (2001).
Criminal defendants are "entitled to a jury that is free of outside influences and
will decide the case according to the evidence and arguments presented in court
in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60
(1983). "The securing and preservation of an impartial jury goes to the very
essence of a fair trial." Ibid.
"[I]f during the course of the trial it becomes apparent that a juror may
have been exposed to extraneous information, the trial court must act swiftly to
overcome any potential bias and to expose factors impinging on the juror's
impartiality." R.D., 169 N.J. at 557-58. "[T]he court must . . . determine
whether the jurors are capable of fulfilling their duty in an impartial and
unbiased manner." State v. McGuire, 419 N.J. Super. 88, 153 (App. Div. 2011).
"[T]he trial court is in the best position to determine whether the jury has
been tainted." R.D., 169 N.J. at 559. It must "consider the gravity of the
extraneous information in relation to the case, the demeanor and credibility of
the juror or jurors who were exposed to the extraneous information, and the
overall impact of the matter on the fairness of the proceedings." Ibid. If there
is a possibility of juror taint, the judge must voir dire the potentially tainted juror
A-3047-23 16 and, "in appropriate circumstances, the remaining jurors." State v. Bisaccia, 319
N.J. Super. 1, 13 (App. Div. 1999).
A new trial is not warranted in every instance where a juror may have been
exposed to outside information. R.D., 169 N.J. at 559. "[I]t is virtually
impossible to shield jurors from every contact or influence that might
theoretically affect their vote." Smith v. Phillips, 455 U.S. 209, 217 (1982).
A defendant's freedom from handcuffs or shackles in the presence of the
jury is "important to his right to a fair and impartial trial." State v. Damon, 286
N.J. Super. 492, 498 (App. Div. 1996). One reason "for not keeping a defendant
restrained is 'to avoid a prejudice in the mind of the jury against the accused as
being a dangerous [person].'" Ibid. (quoting State v. Jones, 130 N.J. Super. 596,
599 (Law Div. 1974)). However, a defendant "is not denied a fair trial and is
not entitled to a mistrial solely because he was momentarily and inadvertently
seen in handcuffs by jury members" outside the courtroom. Jones, 130 N.J.
Super. at 602.
In State v. Sykes, jurors saw the defendant in handcuffs in a public
hallway while he was being brought back to the courtroom after a lunch recess.
93 N.J. Super. 90, 91-92 (App. Div. 1966). We concluded there was no
prejudice by this brief viewing. Id. at 94; see also Jones, 130 N.J. Super. at 602
A-3047-23 17 (defendant's "fleeting episode" of exposure to the jury in handcuffs outside the
courtroom was not "sufficiently prejudicial to impair his fundamental right to a
fair trial").
Here, following jury selection, the court took a lunch break. After the
break, the trial judge conducted a sidebar with counsel regarding an issue with
a member of the jury. After the jury entered the courtroom, the judge called
Juror #2 to sidebar. The judge then informed the jury he had been "tending to
some logistics" and asked the prosecutor to begin her opening statement.
After trial ended for the day, the prosecutor stated she "want[ed] to make
sure . . . what happened with [J]uror #2" was "clear on the record." The
prosecutor stated: "defendant's okay with it" and she had "deferred . . . to
defense counsel" about whether Juror #2 should be "[struck] out of an abundance
of caution."
The prosecutor then stated a sheriff's officer indicated that while walking
by the jury room with defendant, she saw Juror #2 opening the door. However,
the officer "just saw [Juror #2]" and did not say she thought Juror #2 saw
defendant. At sidebar earlier in the day, the judge asked Juror #2 if she saw
defendant, and she replied, "Who's the defendant?" When the judge pointed out
defendant to Juror #2 she answered, "No." After he told Juror #2 who defendant
A-3047-23 18 was, he asked once more if she "[had seen] . . . defendant in the back hallway"
and she answered, "No, I didn't see him."
After the trial, defendant's new counsel moved for a new trial arguing
Juror #2 had seen defendant while he was in handcuffs with a sheriff's officer.
Counsel asserted even though the juror might not have realized defendant was
the defendant for the trial on which the juror was empaneled, the judge should
have dismissed her nonetheless. According to counsel, Juror #2 had
"commented and made a remark that she knew the [s]heriff['s] [o]fficer," which
suggested she did see that officer with defendant. Counsel alleged even though
the juror did not initially know who defendant was, she "indicate[d] that later
she understood . . . it was the same individual" she had seen "in custody,
shackled[,] and surrounded by three officers."
The prosecutor recounted the sidebar with Juror #2, where the trial judge
pointed out to the juror who defendant was and the juror's response. She also
recounted defense trial counsel and defendant had a private "back and forth . . .
that led to them not asking for [Juror #2] to be removed." The judge ha d the
same recollection.
Although the sheriff's officer acted appropriately by reporting Juror #2's
possible sighting of defendant to the trial judge, the record readily shows Juror
A-3047-23 19 #2 neither saw defendant in handcuffs nor knew defendant was the person being
escorted in the hallway. Regardless, the trial judge acted promptly to confront
the juror about the potential sighting and based on the sidebar discussions,
neither the judge nor either counsel was convinced there was juror taint. For
these reasons, the judge did not abuse his discretion.
It follows there was no reversible error when the judge did not sua sponte
give the jury a curative instruction regarding defendant's incarceration. Where
a defendant does not request an instruction or object to the lack of one, we
review a trial judge's actions under a plain error standard. State v. Cole, 229
N.J. 430, 455 (2017); R. 1:7-2; R. 1:8-7(b). Given that no juror saw defendant
in handcuffs, there was no reason to instruct the jury.
III.
In Point I.E of his brief, defendant argues the court erred by denying his
motion for a mistrial after A.R. testified: she had obtained restraining orders
against defendant; he chased her car with a machete; their sons were angry at
her because defendant was in jail; and he took Percocet and Xanax. Defendant
claims this was improper prior bad acts evidence, which deprived him of a fair
trial.
A-3047-23 20 A mistrial is "an extraordinary remedy to be exercised only when
necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J.
385, 397 (2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). "If there
is 'an appropriate alternative course of action,' a mistrial is not a proper exercise
of discretion." State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. Allah,
170 N.J. 269, 281 (2002)). Alternatives to declaring a mistrial include "a
curative instruction, a short adjournment or continuance, or some other remedy."
Ibid.
"The decision to grant or deny a mistrial is entrusted to the sound
discretion of the trial court." Harvey, 151 N.J. at 205. We defer to a trial judge's
decision because they are "in the best position to gauge the effect of the allegedly
prejudicial evidence." Ibid. Thus, we do not disturb a decision to deny a mistrial
motion, "absent an abuse of discretion that results in a manifest injustice." Ibid.
During A.R.'s direct examination regarding the rape kit examination, she
testified she felt violated but was thankful she was still alive because defendant
could have killed her. She explained it "looked like he was under the influence"
when he attacked her and that he "takes Percocets and Xanax." Defendant did
not object to this testimony.
A-3047-23 21 On cross-examination, defense counsel asked A.R. when she ended her
relationship with defendant. A.R. responded the relationship ended in August
2019, but defendant called her at work "nonstop" after she was denied a
restraining order. She explained she obtained a restraining order "[s]everal
times." Defense counsel asked her if she did so to be with her boyfriend and she
responded: "No. Restraining orders were in place even before [my boyfriend]
existed."
Defense counsel asked about an alleged incident in which the boyfriend
pulled a gun on defendant and asked if defendant obtained a restraining order
then. A.R. did not recall the incident and said "I just recall when [defendant]
chased me in the car and threw the machete at the car . . . when [my boyfriend]
was in it." She then recounted the incident occurred while she was driving her
boyfriend on July 26, 2020. Defendant chased them with his vehicle, cut them
off, and then he and the boyfriend exited the cars and began "talking back and
forth." A.R. testified defendant then "went back to his car and got the machete
out [of] the back," and "threw the machete at [her] car." A.R. and her boyfriend
drove away, and defendant got back in his car and continued to chase them.
Later, defense counsel questioned A.R. about whether the children were
angry with her and whether the older son was angrier with her than the younger
A-3047-23 22 one. A.R. explained the children were not angry, but instead frustrated with the
situation. The older son was "upset because he says that he wants his dad out,
because his dad is telling him from jail that he's having heart problems . . . .
Like he manipulates him on the phone."
Following A.R.'s testimony, the prosecutor asked the judge whether the
parties could address the testimony regarding the existence of a restraining
order, defendant's incarceration, and his use of prescription drugs elicited on
cross-examination. The judge found nothing prejudicial regarding the mention
of prescription drugs, and the defense raised no concern about the issue. The
defense also did not complain about the incident regarding the machete.
Nonetheless, the prosecutor suggested a limiting instruction regarding the
restraining orders and defendant's incarceration may be appropriate. When the
judge asked defense counsel if he wanted a limiting instruction, counsel sought
a mistrial because he did not think an instruction would cure the prejudice.
The judge noted the defense raised the existence of the restraining orders.
Also, A.R.'s testimony did not indicate there was a restraining order in place the
day of the incident. The judge similarly noted the defense's questioning led A.R.
to mention defendant's incarceration. He observed "most thinking jurors think
that a person charged with a first-degree aggravated sex[ual] assault probably is
A-3047-23 23 in jail." Even so, the judge found there was no evidence showing defendant was
in jail at the time of trial; he was not shackled and did not wear a jail uniform
during the trial. He concluded a limiting instruction would only draw attention
to these issues and denied the request for a mistrial.
The parties continued to debate the issue. Although the judge disagreed
there was an issue, he asked the parties to draft proposed limiting instructions
regarding the restraining order and incarceration issues.
The next day of trial, the judge read a proposed instruction prepared by
the prosecutor. It said: "You have heard testimony referencing incarceration
and restraining orders. This testimony should not be considered in your
deliberations. Jurors should not consider this in determining whether or not the
State has proven each element of the crime charged beyond a reasonable doubt."
The defense agreed the instruction was fine and the judge gave the jury the
instruction as a part of the final jury charge.
"The admission or exclusion of evidence at trial rests in the sound
discretion of the trial court." State v. Willis, 225 N.J. 85, 96 (2016). Where the
trial court has not fully analyzed the admissibility of other-bad-acts evidence,
we "may conduct a plenary review." State v. Barden, 195 N.J. 375, 391 (2008).
A-3047-23 24 "The mere possibility that evidence could be prejudicial does not justify
its exclusion." State v. Morton, 155 N.J. 383, 453-54 (1998). Evidence is
inadmissible when its relevance "is substantially outweighed by the risk of . . .
[u]ndue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 403(a).
"[E]vidence of other crimes, wrongs, or acts is not admissible to prove a person's
disposition in order to show that on a particular occasion the person acted in
conformity with such disposition." N.J.R.E. 404(b)(1).
Trials are "often unpredictable," and "even the most precise question" by
an attorney "may bring an unexpected response from a witness" which causes
inadmissible evidence to come to the jury's attention. Yough, 208 N.J. at 397.
"Alleged errors induced by counsel 'ordinarily are not a basis for reversal on
appeal.'" Id. at 399 (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). There
must be a clear showing the defendant suffered actual harm. State v. LaBrutto,
114 N.J. 187, 207 (1989). If it is likely "the results of the trial would have been
the same," the mistake is considered harmless. State v. Camacho, 218 N.J. 533,
554 (2014).
The evidence of the restraining order and defendant's incarceration should
not have been admitted. However, in both instances, the State did not elicit this
information. Having considered the entire record, we are convinced these errors
A-3047-23 25 were harmless and the information did not lead to an unjust result , especially
considering the fact the judge gave the jury a curative instruction to disregard
this evidence. "One of the foundations of our jury system is that the jury is
presumed to follow the trial court's instructions." State v. Burns, 192 N.J. 312,
335 (2007). We have no reason to believe the jury did not follow the judge's
instruction.
We decline to conclude the mention of the machete and prescription drugs
constituted reversible error. The testimony regarding the prescription drugs was
volunteered by A.R. and was not elicited by the prosecutor. The defense did not
object to this evidence or cite it as grounds for a mistrial. The use of prescription
drugs did not qualify as prior bad act evidence. The testimony regarding the
machete was elicited by the defense and was not cited as a basis for the mistrial
motion.
IV.
In Points I.C and I.D, defendant argues the trial judge should have granted
his motion for acquittal on the kidnapping and burglary charges, respectively.
He claims the State did not prove he confined A.R. at all, much less for a
substantial period to support the kidnapping charge. A.R. left the bedroom after
the alleged assault, and there was no evidence he forced her back into the
A-3047-23 26 bedroom with him. He also contends any confinement was "incidental to" the
alleged sexual assault. Defendant asserts acquittal was warranted on the
burglary charge because the State did not prove he was not "licensed or
privileged" to enter A.R.'s home or that he entered "with [the] purpose to commit
an offense," because the son invited him over to fix the water pump.
A judgment of acquittal should be entered at the close of the State's case
"if the evidence is insufficient to warrant a conviction." R. 3:18-1. The court
must decide "whether, based on the entirety of the evidence and after giving the
State the benefit of all its favorable testimony and all the favorable inferences
drawn from that testimony, a reasonable jury could find guilt beyond a
reasonable doubt." State v. Williams, 218 N.J. 576, 594 (2014). The burden is
upon the defendant to show the evidence did not support the jury's verdict. State
v. Papasavvas, 170 N.J. 462, 479-80 (2002).
On appeal, we apply the same standard as the trial court. See Williams,
218 N.J. at 593-94. We review the sufficiency of the evidence presented on an
acquittal motion de novo. Ibid.
A.
N.J.S.A. 2C:13-1(b)(2) states a person is guilty of kidnapping if they
"unlawfully confine[] another for a substantial period" with the purpose "[t]o
A-3047-23 27 inflict bodily injury on or to terrorize the victim or another." N.J.S.A. 2C:13 -
1(d) defines an "unlawful" confinement as one which "is accomplished by force,
threat, or deception." The requirement that a period of confinement be
"substantial" is intended "to prevent an overly broad reading" of the kidnapping
statute, by limiting kidnapping to incidents in which the duration of the
confinement, when combined with the purpose of the perpetrator, renders the
action particularly dangerous or terrifying to the victim. State v. Cruz-Pena, 243
N.J. 342, 355 (2020). Thus, "not every . . . confinement of a victim is a
kidnapping." State v. La France, 117 N.J. 583, 586 (1990).
"A kidnapping is criminal conduct that is 'not ordinarily inherent in the
underlying criminal conduct itself' or 'merely incidental to the underlying
crimes.'" Cruz-Pena, 243 N.J. at 356 (quoting La France, 117 N.J. at 589-90).
To be considered a kidnapping, a confinement must "substantially increase the
risk of harm beyond that necessarily present in the crime itself." La France, 117
N.J. at 587. For example, where "the burglar puts the householder in the closet
while he fills his sack with the silver," this brief confinement will not support
an additional charge of kidnapping. Ibid. (quoting State v. Estes, 418 A.2d 1109,
1113 (Me. 1980)). While "a sexual assault necessarily requires a confinement
of the victim," it "is not transformed into a kidnapping" unless the length of the
A-3047-23 28 confinement is "substantial." Cruz-Pena, 243 N.J. at 356. Instead, the
"substantial-period-of-confinement requirement[] address[es] a scenario where
a defendant 'isolates the victim and exposes [them] to an increased risk of
harm.'" Ibid. (quoting State v. Masino, 94 N.J. 436, 445 (1983)). This is because
"[t]he forlorn state of the victim remain[s] the paramount evil of kidnapping."
Masino, 94 N.J. at 441.
When assessing a kidnapping charge, "juries must make a qualitative
judgment about the nature of . . . the confinement." La France, 117 N.J. at 593.
The statute's durational requirement is "not susceptible to a neat mathematical
formulation." Cruz-Pena, 243 N.J. at 356. A confinement may be considered
"incidental to another crime" if it is "of minimal duration," while "a prolonged
confinement" may not be considered incidental. Id. at 357. A kidnapping
conviction may nevertheless be upheld "where the period of confinement was
not relatively long, but where the terror and depraved acts committed against the
victims combined with their isolation and helplessness [is] severe." Ibid.
Although N.J.S.A. 2C:13-1(b) "distinguishes kidnapping from conduct that is
merely incidental to the underlying crimes," it "does not make kidnapping a 'free
crime' when it accompanies another violent crime such as rape or robbery." La
France, 117 N.J. at 590. Indeed, the statute itself requires a non-ransom
A-3047-23 29 kidnapping "be committed with the purpose of committing another unlawful
act." State v. Brent, 137 N.J. 107, 125 (1994).
In Cruz-Pena, the defendant held the victim at knifepoint for four-to-five
hours on the porch of an abandoned house, while forcing her to perform various
sex acts. 243 N.J. at 348-50. The Court found although "the length of the
confinement [wa]s co-extensive with the continuous sexual and physical abuse
of the victim," it was not "merely incidental" to the sexual assault and thus , a
kidnapping conviction could be sustained. Id. at 346. Based on the evidence
presented, "[t]he jury was entitled to make highly fact-sensitive determinations
in deciding whether [the victim] was confined for a 'substantial period.'" Id. at
346-47.
In State v. Jackson, the defendant's gunpoint robbery of the victim, a taxi
driver, "consumed a short span of time," but he then forced the victim to drive
him "through the city of Paterson." 211 N.J. 394, 419 (2012). The Court
affirmed the defendant's conviction, concluding "the victim's peril lasted
significantly longer" than the initial time it took for the defendant to steal his
cash and wallet, and he was "exposed to a substantially extended confinement
and a substantially increased risk." Ibid.
A-3047-23 30 By contrast, in State v. Purnell, the defendant sexually assaulted the victim
in a stairwell and then ordered her to "remain there until he left the building."
394 N.J. Super. 28, 54 (App. Div. 2007). It took him approximately thirty
seconds to descend the stairs and leave. Ibid. The State argued this additional
period constituted a kidnapping because the victim knew the defendant had a
knife and "was in fear for her safety if she left the landing before he left the
building." Ibid. We reversed because it was "very doubtful" the brief period
the victim was left on the landing "[could] be properly characterized as
confinement," and since the defendant was leaving the scene, the risk of harm
to the victim was "diminishing, not increasing." Id. at 54-55.
Following close of the State's case, defendant moved for acquittal on the
kidnapping, arguing there was no testimony he had confined A.R. for a
substantial period of time. A.R. testified she went to the bathroom and came
back to the bedroom following the assault. She did not testify defendant
threatened to harm her if she tried to leave the bedroom again. The judge denied
the motion because the evidence established A.R. was not free to leave.
Defendant stood in, and partially blocked, a narrow hallway leading to and from
the bedroom and bathroom. Plaintiff testified she was scared and did not know
what defendant was capable of because he "was ranting and raving."
A-3047-23 31 The trial judge did not err. Although A.R. testified she left the bedroom
after defendant sexually assaulted her, she also testified there was no way for
her to get to an exit without passing defendant, who was standing by her
bedroom door, in the narrow hallway. Defendant had threatened her with a
hatchet, forcibly sexually assaulted her, and said he would kill her if she did not
comply. Afterwards, A.R. said defendant threatened to kill her if she tried to
contact police and subsequently used the hatchet to smash her cell phone. By
rendering her phone inoperable, defendant left A.R. more isolated and unable to
seek help. Defendant then massaged her feet, putting him in close physical
proximity to her while she tried to stay still, in hopes he would leave. However,
he remained in the bedroom for two more hours, continuing to "guard" the door,
while ranting angrily against her and saying he would return to her home
whenever he liked. This period extended long after the underlying sexual assault
was completed, and defendant had access to the hatchet the entire time.
Giving the State the benefit of all favorable inferences from this
testimony, a reasonable jury could have found defendant's actions in "guarding"
the bedroom door intimidated A.R. into returning to that room, instead of trying
to escape. A jury could also have concluded A.R. was "confined," and the
confinement was "substantial" and not merely "incidental to" the assault.
A-3047-23 32 B.
Under N.J.S.A. 2C:18-2(a)(1), a person is guilty of burglary if they enter
a premises while not "licensed or privileged" to do so, "with purpose to commit
an offense therein." "Burglary is complete upon entry with the purpose of
committing an offense," whether or not that offense is successfully
accomplished. State v. Robinson, 289 N.J. Super. 447, 453 (App. Div. 1996).
Where the evidence "[p]lainly" indicates a defendant's actions "are
inconsistent with lawful conduct," an unlawful purpose may be inferred from
those actions. State v. Tassiello, 75 N.J. Super. 1, 6 (App. Div. 1962). In
Tassiello, the defendants returned to a locked and darkened restaurant shortly
after leaving it, knowing it was unattended, and "entered it by breaking or
otherwise" while one of them stood as a lookout. Ibid. There was no evidence
that once inside the building, the defendants stole anything or committed any
other crime. Id. at 5. We concluded the State had presented sufficient evidence
to defeat a motion for acquittal of the burglary charge, because the defendants'
conduct evinced an unlawful intent in entering the restaurant, and the matter
"required jury determination of the issues presented." Id. at 6.
Defendant argued the burglary charge could not stand because even
though A.R.'s name was on the home's mortgage, he could have an equitable
A-3047-23 33 interest in the home, having lived there as her partner and raising children with
her. The judge denied an acquittal on the burglary charge because the State
proved A.R. owned the house and "didn't want [defendant] there." A.R. said she
would call the police and say defendant was trespassing if he insisted on coming.
The record lacked evidence to support finding defendant had an equitable
interest in the home. We discern no error.
At the outset, we note defendant did not raise the burglary charge as a part
of his acquittal motion. It was instead raised in his motion for a new trial. We
address the argument for the sake of completeness.
As we recounted, there was testimony defendant was sometimes let into
A.R.'s home by the younger son, and the parties stipulated the son had invited
defendant there to fix the water pump the day before the incident. However,
there was no evidence defendant came into the house on August 12 to fix the
pump. A.R. denied telling the son to summon defendant to fix the pump. She
testified she showered before going to bed, which shows the pump must have
been fixed before then. A.R. testified, as owner of the house, she did not want
defendant there. She repeatedly stated she wanted nothing more to do with him
and changed the locks to prevent him from entering the home. Giving the State
A-3047-23 34 the benefit of all favorable inferences, there was sufficient evidence defendant
was not "licensed or privileged" to enter A.R.'s house on August 12 or 13, 2020.
The State also presented sufficient evidence defendant entered with the
purpose to commit an offense. A.R. testified defendant brought a hatchet and
told her he hid in her closet and listened to her conversation with her boyfriend.
Recordings were found on his phone capturing parts of her conversation. A.R.
also testified defendant frequently demanded sex and she refused. Giving the
State the benefit of this testimony, a reasonable jury could have found defendant
came into A.R.'s house with a purpose "inconsistent with lawful conduct."
Tassiello, 75 N.J. Super. at 6.
In Point I.G, defendant argues even if none of the errors raised on appeal
independently warrant reversal, their cumulative effect does. "An error is
harmless unless, in light of the record as a whole, there is a 'possibility that it
led to an unjust verdict' — that is, a possibility 'sufficient to raise a reasonable
doubt' that 'the error led the jury to a result it otherwise might not have reached.'"
State v. J.L.G., 234 N.J. 265, 306 (2018) (quoting State v. Macon, 57 N.J. 325,
335-36 (1971)). Error which may itself be harmless, when combined with
A-3047-23 35 another error may have a "cumulative effect [which] can cast sufficient doubt
on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008).
We are unconvinced there was prejudicial error on either an individual or
cumulative basis. "[A] defendant is entitled to a fair trial, [but they are] not
entitled to a perfect trial, 'for there are no perfect trials.'" United States v. Payne,
944 F.2d 1458, 1477 (9th Cir. 1991) (quoting Brown v. United States, 411 U.S.
223, 231-32 (1973)). Defendant received a fair trial.
VI.
Finally, in Point II of his brief, defendant argues he was denied his
constitutional right to effective assistance of counsel. He asserts trial counsel
was ineffective for: failing to move for a mistrial when the State referenced
A.R.'s restraining order against him in its opening statement; allowing A.R. to
give prejudicial testimony without moving to strike it; failing to obtain the
handwritten notes of the lead detective even though he asked for them at trial;
failing to call the younger son as a witness; failing to provide him with all
discovery; and coercing him into going to trial, instead of pleading guilty.
To establish ineffective assistance of counsel, a defendant bears the
burden of satisfying the two-prong test of Strickland v. Washington, which
requires a showing trial counsel's performance was deficient and, but for the
A-3047-23 36 deficient performance, the result would have been different. 466 U.S. 668, 687
(1984). Our Supreme Court has expressed a preference for resolving ineffective
assistance of counsel claims, like those presented here, on collateral review.
State v. Preciose, 129 N.J. 451, 459-60 (1992). "Contentions of ineffective
assistance of counsel are more effectively addressed through petitions for post-
conviction relief [PCR], at which point an appropriate record may be
developed." State v. Rambo, 401 N.J. Super. 506, 525 (App. Div. 2008).
We conclude defendant's ineffective assistance of counsel claims are
better presented in a PCR petition. This is especially the case regarding the
claims his attorney did not provide him with discovery and coerced him to
proceed with the trial rather than enter a guilty plea. The facts regarding both
issues must be developed because they largely reside outside the trial record.
The remaining four arguments defendant raises would also benefit from a fuller
record, since they may involve matters of strategy, rather than prejudicial errors
made by counsel.
Affirmed.
A-3047-23 37