STATE OF NEW JERSEY VS. LUIS M. CARABALLO (05-07-1360, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED), A-5004-16

In July 2004 a woman (J.S.) fell asleep at a party and later awoke to find defendant engaged in penile penetration; defendant admitted intercourse but claimed it was consensual.
A grand jury indicted defendant for two counts of first‑degree aggravated sexual assault (physically helpless victim).
At the first (bench) trial the judge convicted but this Court reversed because of a Bruton confrontation error; the case was remanded for retrial.
At retrial the judge declined to instruct on fourth‑degree criminal sexual contact but, over defense objection limited to factual sufficiency, instructed the jury on second‑degree sexual assault (physical force).
The jury acquitted on the first‑degree counts and convicted on the second‑degree counts; defendant fled before sentencing, was later extradited, and was sentenced to concurrent nine‑year terms under NERA.
On appeal defendant argued (1) the court erred by instructing on a lesser offense not indicted and (2) the Model Jury Charge impermissibly shifted the burden on consent to the defendant.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether second‑degree sexual assault (N.J.S.A. 2C:14‑2(c)(1)) is a lesser‑included offense of first‑degree aggravated sexual assault of a physically helpless victim (N.J.S.A. 2C:14‑2(a)(7)).	The elements overlap: proof that victim was physically helpless (asleep) establishes lack of consent and the act of penetration supplies the "force" element; facts provided a rational basis and defendant had notice.	Second‑degree is only a related offense, not a lesser‑included offense, so jury could not convict on an unindicted offense; defendant lacked fair notice.	Affirmed. Court held second‑degree was a lesser‑included offense on these facts and defendant had fair notice; instruction was proper.
Whether the Model Jury Charge on consent impermissibly shifted the burden to defendant to prove consent.	The model charge follows State v. M.T.S. and repeatedly states the State must prove lack of reasonable belief in consent beyond a reasonable doubt; read as a whole it does not shift the burden.	The charge effectively required defendant to prove consent (argument raised for first time on appeal).	Affirmed. Charge did not shift the burden; when read with presumption of innocence and proof‑beyond‑a‑reasonable‑doubt instructions it properly places the burden on the State.

State v. Brent, 137 N.J. 107 (permits petit jury to consider lesser‑included offenses not charged by grand jury)
State v. Jenkins, 178 N.J. 347 (trial court must instruct on lesser‑included charges when facts permit conviction on lesser and acquittal on greater)
State v. Garron, 177 N.J. 147 (act of sexual penetration without consent can supply the physical force element)
State ex rel. M.T.S., 129 N.J. 422 (clarifies burden: State must prove defendant could not reasonably have believed there was affirmative, freely‑given consent)
State v. Thomas, 187 N.J. 119 (distinguishes lesser‑included vs. related offenses; outlines tests for lesser‑included status)
State v. Rush, 278 N.J. Super. 44 (victim asleep may be found "physically helpless" for sexual‑assault statutes)