On June 21, 2019, a three-judge appellate panel decided the Passaic County case of State v. Cruz-Pena. The principal issue was whether a kidnapping charge (N.J.S.A. 2C:13-1) should be considered by a jury when the act of “confinement” is incidental to the related first-degree aggravated sexual assault.
Former Deputy Attorney General and newly-appointed Appellate Division Judge Ronald Susswein wrote for the panel in relevant part: We now turn to the application of the foregoing legal principles to the evidence adduced by the State at trial. The victim initially entered the covered porch voluntarily. It was only after C.M. realized that Lillian would not return with more drugs that she decided to leave. At that point, defendant threatened her and struck her violently. That was the moment that involuntary confinement began for purposes of our kidnapping analysis.
What followed was a protracted sequence of violent, nonconsensual sexual acts spanning the course of four to five hours. This series of sex acts and physical assaults were integral parts of a single course of uninterrupted criminal conduct. We note in this regard that count one of the indictment, which charged defendant with first-degree aggravated sexual assault, alleged that the defendant “did commit an act of aggravated sexual assault upon [C.M], by performing an act of sexual penetration, with the use of physical force or coercion.” (Emphasis added). The theory of the prosecution as set forth in the indictment is consistent with the notion that the alleged sexual predation in this case constituted a single continuous criminal episode spanning several hours. That is significant because we need to determine whether the acts constituting the alleged kidnapping are coextensive and coterminous with the acts constituting the alleged sexual assault.
The Court’s focus on the language in the indictment confirms the significance of the language used in an indictment. Since well below one percent of all cases that are indicted culminate in a jury verdict, it is easy for prosecutors to be complacent when proposed indictments are drafted.
