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NOT FOR PUBLICATION WITHOUT THE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-0331-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANCISCO GREEN,
Defendant-Appellant.
________________________
Submitted January 30, 2020 – Decided July 16, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 14-05-
0622.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (David M. Liston,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Francisco Green appeals from the August 15, 2017 judgment
of conviction entered after a jury found him guilty of first-degree kidnapping
and second-degree attempted aggravated sexual assault and the sentence
imposed for those crimes. We affirm.
I.
We derive the following facts from the record. On January 12, 2014, at
approximately 2:00 a.m., E.N. 1 was walking home from an evening out with
friends. While on a well-lighted street near her house, E.N. sat on the steps of
a closed store to smoke a cigarette. A man wearing a grey hooded sweatshirt,
later identified as defendant, approached E.N. and sat down next to her.
After telling defendant to leave her alone, E.N. got up and continued her
walk home. When E.N. reached the front of her neighbor's driveway, defendant
grabbed her from behind, putting his right arm around her face. Defendant
dragged E.N. down the long dark alley of her neighbor's driveway and into her
neighbor's backyard.
E.N. screamed, but defendant told her to "shut up, that he had a knife, and
he would use it." Defendant shoved E.N. to the ground, kneeled in front of her,
pinned her down, and pulled off her jeans and underwear. E.N. struggled to
1
We use initials to maintain the confidentiality of the victim. R. 1:38-3(c)(12).
A-0331-17T2
2
break free and told defendant to stop, but he "kept telling [E.N.] to shut up" and
struck her in the mouth, causing her lip to bleed.
The attack ended approximately six minutes after it began when a motion-
sensing light illuminated the area, causing defendant to flee. Because E.N.'s
neighbor had called 9-1-1 after hearing her screams, police arrived shortly after
defendant fled. They found E.N. on the ground bleeding from her mouth,
"crying hysterically," and barely able to speak or breathe. She was transported
to a hospital for medical treatment.
Investigating officers obtained video footage from nearby surveillance
cameras that recorded defendant's assault on E.N. Using still images of
defendant from the video recordings, police created a "be on the lookout"
communication, which was distributed to local law enforcement agencies.
A few days after the incident, a detective spotted defendant driving a car
and recognized him from the "be on the lookout" communication. The detective
pulled defendant over for a traffic infraction. During the stop, an officer
observed in plain view in the car a grey hooded sweatshirt "that was . . .
consistent with the clothing worn by the individual . . . depicted in the videos."
The officers impounded the car and obtained a search warrant . Laboratory
testing identified E.N.'s blood on the sweatshirt.
A-0331-17T2
3
A grand jury subsequently indicted defendant, charging him with first-
degree kidnapping, N.J.S.A. 2C:13-1(b), and second-degree attempted
aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(3).2
The trial court denied defendant's pretrial motion to suppress the blood-
stained sweatshirt. The issues raised in the motion did not include whether the
affidavit on which the search warrant was based contained false or misleading
information.
The court ordered an evaluation of defendant's competency to stand trial.
A psychologist who examined defendant opined that despite suffering from
antisocial personality disorder, he was competent to stand trial. About a year
later and just prior to trial, defense counsel asked the court to order a second
evaluation because defendant had hit his head in a fall at the county jail three
months earlier and had been exhibiting troubling behavior. According to
counsel, defendant was either not able or unwilling to cooperate with his defense
and was refusing to wear civilian clothes at trial, preferring to appear in his
prison uniform.
2
Although the indictment lists the attempted sexual assault charge as a first -
degree offense, the grading was corrected prior to trial and is accurately
reflected in the judgment of conviction as a second-degree offense.
A-0331-17T2
4
The trial court conducted a competency hearing during which it held an
hour-long colloquy with defendant. The court found defendant demonstrated he
understood the parties' roles at trial, the charges, the maximum sentence, and the
role of the judge and jury. The court concluded there was "no doubt in the
court's mind . . . defendant [understood] that [he was] going to be subject to a
jury trial," found defendant's mental processes to "be intact[,]" and found that
he had a "meaningful understanding of the facts and issues." Based on these
findings and the expert's report, the court found defendant competent to stand
trial.
Afterwards, defendant moved to dismiss the indictment, arguing the State
could not prove beyond a reasonable doubt the asportation element of the
kidnapping charge. The trial court denied the motion, finding the asportation
element of kidnapping could be satisfied by proof of defendant's movement of
the victim from a public street to a secluded backyard, which increased the
victim's risk of harm.
After a six-day trial, the jury convicted defendant on both counts. The
trial court denied defendant's motions for a judgment of acquittal
notwithstanding the verdict and for a new trial because there was sufficient
evidence on which the jury could find him guilty of the offenses.
A-0331-17T2
5
At sentencing, the court granted the State's application to sentence
defendant to an extended term as a persistent offender pursuant to N.J.S.A.
2C:44-3(a) based on his prior convictions. The court found it "clear that
[defendant's] criminal activity has progressed, and has gotten more violent over
time" and that he was "a threat to the public at large, and the public needs
protection." The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3)
(risk that defendant will commit another offense), six, N.J.S.A. 2C:44-1(a)(6)
(extent of defendant's prior criminal convictions and the seriousness of those
offenses), and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter others). The court
found no mitigating factors and that the aggravating factors substantially
outweighed the nonexistent mitigating factors.
After merging the attempted sexual assault conviction into the kidnapping
conviction, the court imposed a twenty-five-year period of incarceration, subject
to an eighty-five-percent parole disqualifier, pursuant to the No Early Release
Act, N.J.S.A. 2C:43-7.2.
This appeal followed. Defendant makes the following arguments:
POINT I
THE TRIAL COURT COMMITTED ERROR IN
FAILING TO ORDER A SECOND COMPETENCY
EVALUATION OF DEFENDANT AFTER HE
EXHIBITED DEMONSTRABLE SIGNS OF
A-0331-17T2
6
INCOHERENCY AFTER SUSTAINING A HEAD
INJURY.
POINT II
DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL DUE TO [THE] COURT'S DENIAL OF
HIS MOTION TO SUPPRESS THE BLOOD-
STAINED SWEATSHIRT AND THE FAILURE TO
HOLD AN EVIDENTIARY HEARING.
POINT III
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTIONS FOR JUDGMENTS OF
ACQUITTAL N.O.V. OR NEW TRIAL WITH
REGARD TO THE KIDNAPPING CONVICTION
BECAUSE THE STATE FAILED TO PROVE THE
ASPORTATION ELEMENT OF THE KIDNAPPING
STATUTE.
POINT IV
BECAUSE THE JUDGMENT OF ACQUITTAL ON
THE KIDNAPPING COUNT SHOULD HAVE BEEN
GRANTED, THE DEFENDANT'S SIMILAR
MOTION ON THE FIRST-DEGREE ATTEMPTED
AGGRAVATED SEXUAL ASSAULT SHOULD
HAVE BEEN GRANTED.
POINT V
THE SENTENCE OF TWENTY-FIVE YEARS
PRISON WAS EXCESSIVE BECAUSE THE COURT
ENGAGED IN DOUBLE-COUNTING OF
DEFENDANT'S TWO PRIOR CONVICTIONS
WHEN GRANTING THE STATE'S APPLICATION
FOR AND [SIC] EXTENDED TERM SENTENCE
A-0331-17T2
7
AND ALSO CONSIDERING THOSE SAME
CONVICTIONS IN SUPPORT OF AGGRAVATING
FACTOR NUMBER THREE – THE EXTENT OF THE
DEFENDANT'S PRIOR RECORD.
II.
"No person who lacks capacity to understand the proceedings against him
or to assist in his own defense shall be tried, convicted or sentenced for the
commission of an offense so long as such incapacity endures." N.J.S.A. 2C:4-
4(a). "Where evidence raises a bona fide doubt as to a defendant's competence,
a competency hearing must be held." State v. Purnell, 394 N.J. Super. 28, 47
(App. Div. 2007).
For a defendant to be found competent to stand trial, the proofs must
establish the following by a preponderance of the evidence:
(1) That the defendant has the mental capacity to
appreciate his presence in relation to time, place and
things; and
(2) That his elementary mental processes are such that
he comprehends:
(a) That he is in a court of justice charged with a
criminal offense;
(b) That there is a judge on the bench;
(c) That there is a prosecutor present who will try to
convict him of a criminal charge;
A-0331-17T2
8
(d) That he has a lawyer who will undertake to defend
him against that charge;
(e) That he will be expected to tell to the best of his
mental ability the facts surrounding him at the time and
place where the alleged violation was committed if he
chooses to testify and understands the right not to
testify;
(f) That there is or may be a jury present to pass upon
evidence adduced as to guilt or innocence of such
charge or, that if he should choose to enter into plea
negotiations or to plead guilty, that he comprehend the
consequences of a guilty plea and that he be able to
knowingly, intelligently, and voluntarily waive those
rights which are waived upon such entry of a guilty
plea; and
(g) That he has the ability to participate in an adequate
presentation of his defense.
[N.J.S.A. 2C:4-4(b); Purnell, 394 N.J. Super. at 47-48.]
The determination of whether a defendant is competent to stand trial is a
determination of whether he understands his position and can consult
intelligently with counsel in preparing a defense. Aponte v. State, 30 N.J. 441,
450 (1959). Although the court may rely on expert opinion, "the ultimate
determination of the issue is for the judge to make, not experts." Purnell, 394
N.J. Super. at 52; accord State v. Gorthy, 226 N.J. 516, 530-31 (2016). The
court has a continuing obligation to revisit defendant's competency if warranted.
Purnell, 394 N.J. Super. at 49.
A-0331-17T2
9
Our review of the trial court's competency determination is "highly
deferential." State v. M.J.K., 369 N.J. Super. 532, 548 (App. Div. 2004); State
v. Moya, 329 N.J. Super. 499, 506 (App. Div. 2000). The decision is
discretionary and will be sustained if there is sufficient supporting evidence in
the record. Purnell, 394 N.J. Super. at 50.
After carefully reviewing the record in light of these principles, we are
satisfied the trial court did not abuse its discretion when it determined defendant
was competent to stand trial. The court engaged in an extensive examination
during which it had the opportunity to observe defendant firsthand and gauge
his understanding of the criminal trial he faced. The court addressed each of the
factors in N.J.S.A. 2C:4-4 and made detailed findings in support of its
competency determination. In addition, the court was aware of counsel's
concerns regarding defendant's jailhouse fall and found any injuries he suffered
did not affect him in any way that would preclude him from standing trial. This
conclusion comported with the opinion of the expert who examined defendant
before the fall but after he reported he was hearing voices and seeing visions.
Nor are we persuaded by defendant's argument that his lack of competency
is evidenced by his initial refusal to wear civilian clothes for his trial. The trial
A-0331-17T2
10
court examined that issue at the hearing and found defendant's explanation to be
rational. Notably, defendant ultimately decided to wear civilian clothes at trial.
Additionally, the record does not indicate defendant's mental condition
"preclude[d] meaningful interaction with his . . . attorney . . . ." Gorthy, 226
N.J. at 532. After the State rested, the court noted defendant had "handled
himself very well . . . during court" and had "been very engaged . . . with his
attorney during the entire matter." Later, the court told defendant, "[T]here's no
doubt in my mind you're understanding what's going on here today," and
defendant replied "Yeah, I understand."
III.
For the first time on appeal, defendant argues the trial court erred because
he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154 (1978),
with respect to what he alleges were false statements in the affidavit submitted
in support of the search warrant for his car. According to defendant, the officers
falsely stated that they had made "positive identifications" of him as E.N.'s
assailant at the time of the motor vehicle stop.
Pursuant to the holding in State v. Witt, 223 N.J. 409 (2015), we decline
to review defendant's argument. In that case, the defendant challenged the
lawfulness of a search of his car before trial but had not challenged the
A-0331-17T2
11
lawfulness of the motor-vehicle stop that preceded the search until the case
reached our court. Id. at 418. We considered the validity of the traffic stop.
The Supreme Court reversed, noting "that the lawfulness of the stop was not
preserved for appellate review" and that we "should have declined to entertain
the belatedly raised issue." Id. at 419. As the Court explained, "[f]or sound
jurisprudential reasons, with few exceptions, our appellate courts will decline to
consider questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available." Ibid. (quoting State v.
Robinson, 200 N.J. 1, 20 (2009) (quotations omitted)). "[I]t would be unfair,
and contrary to our established rules, to decide the lawfulness of the stop when
the State was deprived of the opportunity to establish a record that might have
resolved the issue through a few questions . . . ." Ibid.
There is no question defendant did not request a Franks hearing before the
trial court. The State, therefore, was denied the opportunity to develop a record
with respect to the veracity of the statements defendant now challenges and the
state of the affiant's knowledge when the statements were made in the affidavit.
We also find no legal support for defendant's argument that the trial court
erred by not holding an evidentiary hearing on his motion to suppress , whether
or not Franks applied. A warrant is "presumed to be valid, and defendant bears
A-0331-17T2
12
the burden of demonstrating that the warrant was issued without probable cause
or that the search was otherwise unreasonable." State v. Chippero, 201 N.J. 14,
26 (2009) (quoting State v. Evers, 175 N.J. 355, 381 (2003)). "[T]he resolution
of doubtful or marginal cases in this area should be largely determined by the
preference to be accorded to warrants." State v Perry, 59 N.J. 383, 394 (1971)
(quotations omitted).
Rule 3:5-7(c) requires a testimonial hearing on a motion to suppress
evidence when there is a dispute as to a material fact. See State v. Parker, 459
N.J. Super. 26, 30-31 (App. Div. 2019). Our review of the record reveals no
disputed material facts requiring a hearing. Defendant did not dispute the facts
in the affidavit in his motion to suppress. He challenged only the argument that
those facts established a basis for issuance of the warrant.
IV.
We review de novo a trial court's denial of a motion for a judgment of
acquittal, "applying the same standard as the trial court." State v. Zembreski,
445 N.J. Super. 412, 430 (App. Div. 2016). Under that standard, a court "must
determine only 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-0331-17T2
13
a reasonable doubt.'" Ibid. (quoting State v. Williams, 218 N.J. 576, 594 (2014).
"If the evidence satisfies that standard, the motion must be denied." Ibid.
(quoting State v. Spivey, 179 N.J. 229, 236 (2004)).
When deciding a motion for acquittal the court is not "concerned with the
worth, nature or extent (beyond a scintilla) of the evidence, but only with its
existence, viewed most favorably to the State . . . ." Id. at 431 (quoting State v.
Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974)). If evidence exists, "the
motion must be denied." Id. at 430 (quoting Spivey, 179 N.J. at 236).
A defendant has a similarly high burden when moving for a new trial
based on a jury verdict being against the weight of the evidence. Rule 3:20-1
provides:
The trial judge shall not . . . set aside the verdict of the
jury as against the weight of the evidence unless,
having given due regard to the opportunity of the jury
to pass upon the credibility of the witnesses, it clearly
and convincingly appears that there was a manifest
denial of justice under law.
Motions for a new trial are "addressed to the sound discretion of the trial judge"
and "shall not be reversed unless it clearly appears that there was a miscarriage
of justice under the law." State v. Armour, 446 N.J. Super. 295, 305-06 (App.
Div. 2016) (quoting R. 2:10-1).
A-0331-17T2
14
"A person is guilty of kidnapping if he unlawfully removes another . . . a
substantial distance from the vicinity where he is found, or if he unlawfully
confines another for a substantial period, with any of the following purposes: . .
. [t]o facilitate commission of a crime . . . ." N.J.S.A. 2C:13-1(b)(1). The
"substantial distance" is not defined only as "a linear measurement" of the
distance the victim is moved. State v. Jackson, 211 N.J. 394, 415 (2012)
(quoting State v. Masino, 94 N.J. 436, 445 (1983)). The Supreme Court has
defined "substantial distance" as "one that 'isolates the victim and exposes him
or her to an increased risk of harm.'" Ibid. (quoting Masino, 94 N.J. at 445).
"[O]ne is confined for a substantial period if that confinement 'is . . . more
than merely incidental to the underlying crime,' and that determination is made
with reference not only to the duration of the confinement, but also to the
'enhanced risk of harm resulting from the [confinement] and isolation of the
victim.'" State v. La France, 117 N.J. 583, 594 (1990) (quoting Masino, 94 N.J.
at 447). Stated differently, in considering whether the asportation element is
met, courts should consider whether the underlying crime and the subsequent
movement or confinement are separate and distinct acts and whether that
movement or confinement increased the risk of harm to the victim. Jackson,
211 N.J. at 415; La France, 117 N.J. at 594; see State v. Matarama, 306 N.J.
A-0331-17T2
15
Super. 6, 22 (App. Div. 1997) ("substantial distance" element satisfied where,
during the course of a robbery, "the victim was dragged twenty-three feet . . . to
a small alley[,] . . . a more secluded place where the assailants could more easily
attack her without being seen").
Defendant argues the State failed to prove the asportation element of
kidnapping because his movement of E.N. was "merely incidental" to his
attempted sexual assault. Our review of the record identified ample evidence to
support the jury's verdict under either the "substantial distance" or "substantial
period of confinement" element of the kidnapping statute. Defendant forcibly
moved E.N. from a public sidewalk, down a dark alley, and into the backyard of
a residence. The jury could reasonably have determined that his intention was
to isolate her from public view to enhance the likelihood that he could assault
her without detection, thus exposing her to increased risk of harm. In addition,
the jury could reasonably have concluded that defendant's movement of E.N.
was separate and apart from the attempted sexual assault because it was not
necessary to move E.N. to complete that crime.
V.
"Appellate review of the length of a sentence is limited." State v. Miller,
205 N.J. 109, 127 (2011). An appellate court "must not substitute its judgment
A-0331-17T2
16
for that of the sentencing court[,]" State v. Fuentes, 217 N.J. 57, 70 (2014), and
is bound to affirm the sentence absent a "clear abuse of discretion." State v.
Roth, 95 N.J. 334, 363 (1984).
Appellate courts must affirm the sentence of a trial
court unless: (1) the sentencing guidelines were
violated; (2) the findings of aggravating and mitigating
factors were not "based upon competent credible
evidence in the record;" or (3) "the application of the
guidelines to the facts" of the case "shock[s] the judicial
conscience."
[State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration
in original) (quoting Roth, 95 N.J. at 364-65).]
There should be no double-counting of aggravating factors. Fuentes, 217
N.J. at 76; State v. Yarbough, 100 N.J. 627, 643-44 (1985). Impermissible
double-counting occurs when "established elements of a crime for which a
defendant is being sentenced [are] considered as aggravating circumstances in
determining that sentence." State v. Kromphold, 162 N.J. 345, 353 (2000).
Defendant argues the trial court engaged in double-counting when it
considered his criminal history both in granting the motion for a discretio nary
extended term and when finding aggravating factors. We do not agree.
When determining whether an extended term is appropriate, N.J.S.A.
2C:44-3(a), a sentencing court must "review and determine whether a
defendant's criminal record of convictions renders him or her statutorily
A-0331-17T2
17
eligible" to be sentenced as a persistent offender. State v. Pierce, 188 N.J. 155,
168 (2006). When sentencing a defendant within the extended-term range, the
court's focus should turn from defendant's prior convictions to the present
offense and a "factual assessment of the defendant’s whole person." Id. at 167.
The court was required to consider defendant's prior convictions to
determine if he was eligible for extended-term sentencing. See id. at 168. This
did not preclude the court from considering those convictions when making
determination with respect to the existence of aggravating factors. See State v.
McDuffie, 450 N.J. Super. 554, 576 (App. Div. 2017).
Lastly, although eligible for an extended-term sentence of between thirty
years and life, the trial court sentenced defendant to twenty-five years.
Considering both defendant's sentence was in the range for an ordinary term for
first-degree kidnapping and defendant was eligible for a sentence between thirty
years and life, the sentence does not "shock the judicial conscience." See
N.J.S.A. 2C:13-1(c)(1); Roth, 95 N.J. at 364-65.
To the extent we have not addressed defendant's other arguments, we
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
A-0331-17T2
18