State v. MoschState v. Mosch
Following a jury trial, defendant Edward C. Mosch was convicted of third degree sexual contact,
On appeal defendant contends that:
1. The court‘s failure to charge the jury with respect to the issue of identification requires reversal of the conviction of defendant in the interest of justice. 2. The sentence imposed upon defendant was improper and must be modified by the reviewing court. (A) The sentence imposed was illegal with respect to the term of parole ineligibility in that the trial court failed to recite those aggravating and mitigating factors which caused the sentence to be imposed. (B) The trial court failed to separately state its reasons for imposing consecutive sentences in its decision.
3. A. Defense counsel‘s failure to call or subpoena alibi witnesses on behalf of appellant constituted ineffective assistance of counsel.
B. Counsel was not provided sufficient time to properly prepare his defense.
4. The out-of-court identification of defendant-appellant was so suggestive as to amount to a denial of due process.
According to State‘s evidence, in the early morning hours of July 9, 1984, defendant burglarized D.D.‘s apartment by cutting a window screen. After taking $50 from her purse, which was on her desk, defendant ransacked D.D.‘s dresser drawеrs in search of pantyhose with which he would make a head mask. Defendant then proceeded to D.D.‘s bedroom and, at approximately 4:00 a.m., she was awakened by defendant touching her genital area. Startled, she sat upright and defendant, who was wearing the pantyhose taken from her dresser as a head mask, said, “If you scream, I‘m going to kill you.” When D.D. did begin to scream, defendant ran out of her apartment.
We have considered the contentions raised in light of the record and the controlling legal principles аnd conclude that all issues raised, with the exception of point two, are clearly without merit.
The standards for appellate review of sentencing decisions under the Code of Criminal Justice are sеt forth in State v. Roth, 95 N.J. 334 (1984) and State v. Hodge, 95 N.J. 369 (1984). The reviewing court must ascertain whether the correct
Our Criminal Code resembles a model for sentencing based on the notion of proportionality and desert, State v. Yarbough, 100 N.J. 627, 635 (1985), cert. den. ___ U.S. ___, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986), and thus does not focus on rehabilitation, but is offense-oriented. State v. Hodge, 95 N.J. 369, 375 (1984). The Code requires the sentencing court to look at the individual offender in balancing the defined aggravating and mitigating factors, including defendant‘s prior record and the likelihood of furthеr criminal conduct, to determine the range of the sentence or whether a parole disqualifier is warranted. Yarbough, supra, 100 N.J. at 636. See also
However, the Code does not set forth specific standards to guide sentencing courts when imposing sentences for imprisonment for more than one offense, except to say that “multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence.” Yarbough, supra, at 636. See also
In this case, we are presented with the problem of multiple convictions arising from one incident involving one victim but which is comprised оf distinct and dissimilar offenses. See, Raymar, supra, at 55. Clearly, the burglary offense is distinct
We first point out that although the trial judge did not orally state the aggravating factors during sentencing, the judgment of conviction and order for commitment, which is dated the same day sentencing ocсurred, clearly sets forth the aggravating circumstances as follows:
(1) The nature and circumstances of the offense and the role of defendant therein; (2) The gravity and seriousness of the harm inflicted on the victim; (3) The risk that defendant will commit another offense; (4) A lessеr sentence would depreciate the seriousness of the defendant‘s offense; (5) The extent of defendant‘s prior criminal record and the seriousness of the offense of which he has been convicted; and (6) The need for deterring defendant and others frоm violating the law.
The court found no mitigating circumstances to be present. We must note, however, that point (4) above was incorrectly cited here as an aggravating circumstance in that that section deals with a violation of public trust under Chapters 27 and 30 оr a breach of a position of trust or confidence. Clearly, that section is inapplicable here and we have excluded it from our consideration. In light of the numerous other aggravating factors, and finding of no mitigating factor, we conclude the trial court fully complied with
We recognize that defendant‘s sentence as to the sexual offense is proper in that defendant has been classified as a repetitive sex offender and did not refute or challenge in any way the findings and conclusions of the Adult Diagnostic and Treatment Center. Consequently,
Consecutive sentencing may be an appropriate means to protect society from those who are unwilling to lead a productive life and resort to criminal activity in furtherance of their anti-societal lifestyle. Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). See also State v. Maxey, 42 N.J. 62, 64-66 (1964); Matter of Kershner, 17 N.J. Super. 30, 32 (1951), aff‘d 9 N.J. 471, 44, 73 S.Ct. 59, 97 L.Ed. 656 (1952); State v. Vance, 112 N.J. Super. 479, 481 (App.Div. 1970). Sometimes circumstances will indicate that defendant is the type of repetitive offender not likely to be rehabilitated and, therefore, should be incarcerated under consecutive sentences for the protection of the public. Gray, supra, at 393. Such is the situation here. Although defendant‘s prior record indicates he has been arrested and convicted on numerous occasions between 1968 and 1984 for juvenile, disorderly and various criminal offеnses, as of the time the presentence report was prepared, he had spent only 5 days in jail. Defendant himself revealed that he had raped three women prior to being convicted and sentenced to Avenel in 1978, and that his method was always the same — he planned his attacks, waited for the woman to be alone and then broke into her dwelling via a window. More significantly, however, during the presentence interview when asked whether he was capable of raping again, defendant stated that given the right
The criteria set forth by the New Jersey Supreme Court to be used when imposing consecutive sentences include that:
(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 consеcutive or concurrent sentence should be separately stated in the sentencing decision; .... (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 term that could be imposed for the two most serious offenses. [Yarbough, supra, [100 N.J.] at 643-644.]
Clearly, the two crimes for which defendant was convicted involve separate and distinct elements which do not merge. See State v. Best, 70 N.J. 56, 69-70 (1976). See also State v. Davis, 68 N.J. 69, 78 (1975); State v. Cooper, 211 N.J. Super. 1, 22 (App.Div. 1986). The first guideline the court set forth in Yarbough, supra, is that there shall be “no free crimes” in a system where the punishment shall fit the crime. In other words, the punishment must fit the crime, not the criminal. Hodge, supra, 95 N.J. at 376. The Criminal Code specifically requires an inexorable focus upon the offense when formulating a sentence. Roth, supra, 95 N.J. at 367; Hodge, supra, 95 N.J. at 377. The sentence imposed must reflect the legislature‘s intention to emphasize the degree of the crime itself. Id. at 377. Any punishment creates some type of hardship; indeed that is the purpose of punishment. Hence, the “no free crimes” criteria of Yarbough, supra, is satisfied by defendant‘s consecutive sentence.
Yarbough, supra, is not intended to trammel all consecutive sentences. To the contrary, Yarbough is a guide for cases that ordinarily сome before the court for sentencing. Indeed, where appropriate, Yarbough allows for consecutive sentences; however, the court must clearly state its reasoning for imposing a consecutive sentence. Id. 100 N.J. at 643. See
The scales of justice remind us that the public as well as this victim have a right to feel safe when alone in their own homes. Since the incident here occurred, D.D. has been afraid to leаve her apartment, afraid to be left alone and, even worse, afraid to walk around her own apartment. Each and every one of us has the fundamental right to be left alone. Our right to privacy is one of the most protected of our natural rights, having its origin in natural law, and protected by both state and federal constitutions. See
Defendant here is an admitted habitual offender from whom the public must be protected. Hopefully, the justice system can deter defendant‘s criminal activities by giving him the opportunity to contemplate what our Supreme Court meant by “no free crimes.” Perhaps defendant would have us believe that he did
We add only that since our system is one in which “the punishment shall fit the crime,” and defendant apparently has had his share of “free crimes“; it is now time for defendant to receive his just desert.
Affirmed.