State v. Irizarry

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY IRIZARRY, a/k/a TONE, ANTHONY IRAZZARRY,and ANTHONY IRRIZARRY, Defendant-Appellant.

DOCKET NO. A-0485-18T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted February 24, 2020

March 20, 2020

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Sabatino and Geiger.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 12-08-0619.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael A. Priarone, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Ali Y. Ozbek, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This case arises out of an incident in which defendant Anthony Irizarry engaged in sexual activity with an adult woman, P.R.¹ The State alleged defendant threatened P.R. at knifepoint, drove her to a desolate location, and forced her to engage in oral and anal sexual acts. P.R. was unable to identify her assailant, but a specimen obtained during an examination of P.R. matched defendant's DNA to that found on her. Defendant, who testified at trial in his own defense, asserted that P.R. had offered to have sex with him in exchange for crack cocaine, and that their ensuing sexual relations were consensual.

Defendant has been tried twice for the sexual assault of P.R. Following a nine-day trial, a jury acquitted defendant of kidnapping, terroristic threats, and various weapons charges but found him guilty of aggravated sexual assault and aggravated criminal sexual contact. Defendant was sentenced to an extended custodial term of thirty-five years with periods of parole ineligibility and parole supervision following his release from prison, as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On direct appeal, we reversed and remanded for a new trial because defendant's constitutional right to remain silent post-arrest was violated. State v. Irizarry, Docket No. A-1518-14 (App. Div. June 12, 2017) (slip op. at 23-25). The State's petition for certification wasdenied, State v. Irizarry, 213 N.J. 527 (2017), as was defendant's cross-petition for certification. State v. Irizarry, 213 N.J. 540 (2017).

Defendant was retried in 2018. Prior to the retrial, defendant moved to bar the "while armed" aspects of both charges in light of his acquittal of the weapons charges at the first trial. The court denied defendant's motion but reserved on whether the charges might be amended to include the allegation that defendant was "armed with a knife or some object that in the manner which it was fashioned appeared to be a weapon or a knife." The parties stipulated that defendant's DNA was found on P.R.

A second jury convicted defendant of second-degree sexual assault by physical force, N.J.S.A. 2C:14-2(c)(1), and fourth-degree criminal sexual contact by physical force/coercion, N.J.S.A. 2C:14-3(b). Following merger, defendant was sentenced as a persistent offender to an extended twenty-year NERA term. He was also sentenced to parole supervision for life, N.J.S.A. 2C:43-6.4, and ordered to comply with the registration requirements imposed by Megan's Law, N.J.S.A. 2C:7-1 to -23.

Defendant now appeals his second conviction and sentence, contending there were errors at the second trial that warranted a reversal of his convictionand his sentence is excessive. For the reasons that follow, we affirm his conviction and sentence.

I.

We derive the facts from the testimony and evidence presented at the second trial. The jury heard testimony from Detective Edward Valentin of the City of Passaic Police Department; Massiel De La Cruz, a Sexual Assault Forensic Examiner (SAFE); P.R.; and defendant.

Valentin testified that while working on May 20, 2011, he was called to Mountainside Hospital to interview an alleged victim of sexual assault. After Valentin arrived at the hospital, he met with the SAFE "nurse," De La Cruz, who had just examined P.R. During trial, the following colloquy took place:

Q. Did anything happen when you spoke to the nurse?

A. No. They² just said that she was a victim of a sexual assault.

Defense counsel objected immediately. The court then issued two limiting instructions to the jury. However, defense counsel wanted to be heard further; the court excused the jury. Defense counsel moved for a mistrial "[b]ecause now, according to [Valentin's] testimony the nurse has given the [j]ury theinformation that there was a sexual assault." The court denied the motion and instead issued a curative instruction stating in relevant part, "[De La Cruz] was not expressing an opinion, nor can she express an opinion."

Next the State called De La Cruz. De La Cruz testified that in 2011 she was employed as an independent contractor, working as a SAFE for the Essex County Prosecutor's Office. She explained that a SAFE differs from a Sexual Assault Nurse Examiner (SANE) because she is a physician assistant as opposed to a nurse. She then explained her educational background and qualifications. The court qualified De La Cruz as an expert in the field of sexual assault forensic examination. The court informed the jury that "an expert witness . . . may give her opinion as to any matter in which she is versed which is material to the case."³

De La Cruz testified she was called to Mountainside Hospital to perform an examination on P.R. There, she conducted P.R.'s examination in Spanish because P.R. does not speak English. She also explained that there was an "advocate" in the room to "help the patient in case . . . they need representation."

During her testimony, De La Cruz recounted various statements P.R. made to her, including the cause of her injuries, the ethnicity of her attacker, whatoccurred during the attack, and that she was in fear for her life. Defense counsel objected to these statements. The court overruled defendant's objections, explaining that the statements were admissible under N.J.R.E. 803(c)(4) as statements for purposes of medical diagnosis or treatment, because "[t]hese are details a medical person has to have." The court also noted that under N.J.R.E. 803(c)(3), "then existing mental, emotional or physical condition . . . is also an exception."

The State then called P.R. who testified through an interpreter. She stated that on May 20, 2011, she left her home in Passaic at 5:30 a.m. to go to work. As she was walking down Harrison Street, towards the bus stop, she heard a car stop behind her. Suddenly, she was grabbed from behind; when she tried to run away her attacker⁴ caught up to her and "told [her] not to move." He then placed a knife⁵ to her hip area and stated, "if you move, I'm going to kill you."

P.R. stated she was then forced into the front-passenger seat of her attacker's car; the two drove on Route 21, towards Newark, until the attacker parked in "a rural area where there were trees" surrounded by construction equipment. There, while still inside of the car, the attacker made P.R. perform oral sex by grabbing her head and pushing it downward. Then the attacker pulled P.R.'s pants and underwear off and sodomized her.

P.R. testified that after the attacker ejaculated, he gave P.R. a glove to "clean up." The attacker then told P.R. that he was driving her back to Passaic and that she should not contact "the police or anyone else." After arriving in Passaic, the attacker stopped suddenly on Main Street and pushed P.R. out of the car while reiterating not to contact anyone about the rape or else he would kill her.

P.R. stated that she cried as she walked down Main Street until a man asked her if she was alright. She then told the man about the rape. The police were called and soon arrived around 6:00 a.m. In the responding officer's report, he indicated that P.R. stated initially that she was robbed and did not mention being sexually assaulted. Eventually, however, she informed him that she was sexually assaulted. The officer and his partner then drove P.R. to the location where she said the assault took place.

Subsequently, the responding officers transported P.R. to Saint Mary's Hospital. However, she was then driven to Mountainside Hospital because Saint Mary's was unable to perform a sexual assault examination.

On May 24, 2011, P.R. drove with Valentin to where she believed she was assaulted; the address, later ascertained, was 110 Riverside Avenue, Newark. P.R. was later informed by Valentin that security camera footage from 110 Riverside Avenue did not show any cars being parked there on the morning of May 20, 2011.

On cross-examination, defense counsel asked P.R. if her testimony was "different today than it was back in 2014." In response, P.R. stated she would be willing to take a polygraph. Defense counsel requested a curative instruction which the court provided. P.R. later exclaimed that "[p]eople don't believe Hispanics." Defense counsel requested a mistrial. The court provided a curative instruction to this comment later in the trial. P.R. also denied telling the police, initially, that she had been robbed and not sexually assaulted. The State rested following P.R.'s testimony.

Defendant elected to testify. During direct-examination, defendant stated that on the morning of May 20, 2011, he was selling crack cocaine on Passaic Street. Defendant testified that around 5:00 or 5:30 a.m., P.R. approached himand asked if he had drugs, to which defendant responded affirmatively. According to defendant, P.R. then proposed that defendant give her crack cocaine in exchange for sex. Defendant accepted.

Defendant testified that he and P.R. then "walked down Third Street to an alleyway, between Passaic and South" and had unprotected anal sex. Following the encounter,...