STATE OF NEW JERSEY VS. ANTHONY IRIZARRY(12-08-0619, PASSAIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-1518-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY IRIZARRY a/k/a TONE,

Defendant-Appellant.
_______________________________

Submitted May 30, 2017 – Decided June 12, 2017

Before Judges Sabatino and Nugent.

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

Joseph E. Krakora, Public Defender, attorney
for appellant (John A. Albright, Designated
Counsel, on the briefs).

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Robert J. Wisse,
Assistant Prosecutor, of counsel and on the
briefs).

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's theory at trial was that defendant threatened P.R. at

knifepoint, drove her to a desolate location, and forced her to

engage in oral and anal sexual acts. Defendant, who testified at

trial in his own defense, asserted that P.R. had offered to have

sex with him in exchange for drugs, and that their ensuing sexual

relations were consensual.

Following a nine-day trial, a jury acquitted defendant of

kidnapping, terroristic threats, and various weapons charges.

However, the jury found him guilty of first-degree aggravated

sexual assault, N.J.S.A. 2C:14-2(a)(4), and third-degree

aggravated criminal sexual contact, N.J.S.A. 2C:14-2(a)(4). The

State voluntarily dismissed an additional count that charged

defendant with a "certain persons" weapons offense. After denying

defendant's new trial motion, the court sentenced defendant on the

first-degree offense to an extended custodial term of thirty-five

years, subject to the parole ineligibility period mandated by the

No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The sentence

was to run consecutively to a sentence defendant was serving on

an unrelated conviction.

1
We use initials to protect the privacy of the person the State
deemed to be the victim.

2 A-1518-14T4
 On appeal, defendant contends that the trial court improperly

and prejudicially allowed the prosecutor to cross-examine him

about his failure to divulge his sex-for-drugs explanation of the

underlying incident during post-arrest interrogation by the

police. Defendant further argues that the jury charge was flawed

in omitting an instruction about the defense of consent, and in

not alternatively charging second-degree sexual assault and

fourth-degree criminal sexual contact as lesser included offenses.

Lastly, defendant argues his sentence is manifestly excessive and

is the product of an abuse of discretion.

For the reasons that follow, we reverse and remand for a new

trial because of the post-arrest silence issue, but reject all of

defendant's remaining claims of error.

I.

As we have noted, the State and defendant presented

diametrically conflicting narratives at trial, except insofar as

defendant acknowledged that he and P.R. engaged in sexual activity

on the date in question. Both defendant and P.R. are adults.

Defendant has an associate's degree from a technical school,

resided with a long-time girlfriend, and had one child. P.R., who

testified through a Spanish interpreter, was a factory worker who

rented a room in the City of Passaic.

3 A-1518-14T4
 P.R.'s Version

According to P.R., on May 20, 2011, she left her residence

at approximately 5:30 a.m. and began walking to catch a bus to

take her to work. She testified that, as she walked down the

street, a car stopped behind her. Suddenly a man grabbed her from

behind. P.R. was briefly able to break free, but the man caught

up with her a block away. She did not scream because the man

covered her mouth and told her that if she cried out he would kill

her. Although P.R. recalled that other people were nearby, none

of them intervened to assist her.

P.R. testified that the man was armed with a knife

approximately four inches long. He put her in a black car and

drove her to a construction site. She described the area as

desolate, although she did see another person walking along a path

as the black car arrived.

After they arrived, the man threatened to kill P.R. with the

knife unless she performed oral sex on him. She complied. Then

he made her take her pants off. He directed her to the car's

front seat, where he sexually assaulted her anally. According to

P.R., she screamed out and pled with defendant to stop, but he

persisted. When he finished, he gave her a glove to wipe off her

4 A-1518-14T4
anus. She asked him to drive her home, promising that she would

not reveal what had occurred.

They got back in the car, and the man drove P.R. back to

Passaic. Before he released her, he took her cell phone and told

her "he had the names of all my relatives and that if I said

anything he said he knew people in Passaic that would kill me if

I [told anyone]."

The man dropped P.R. off about a half-hour away from her

home. She walked over to a taxi stand, and the cab driver called

the police. When the police arrived, she told them her account,

and they attempted to drive her to where the sexual assault took

place. They then took her to the hospital.

The police did not attempt to have P.R. identify her attacker.

At trial, P.R. stated that she did not remember what her attacker

looked like, and that she had never seen him before this incident.

The prosecutor did not ask P.R. whether she recognized defendant

in the courtroom.

Defendant's Version

Defendant's trial testimony presented a markedly different

narrative. He stated that at about 5:30 a.m. on May 20, 2011, he

was selling crack cocaine on Passaic Street near a park. He said

he had been out there for about ten to eleven hours. A short

woman approached him, and defendant testified "she was willing to

5 A-1518-14T4
exchange a favor for drugs," which meant to him that she was

"willing to have sex for drugs." Defendant said he agreed to the

proposition.

According to defendant, he and the woman then walked to a

nearby alley, where they had anal sex. Defendant said he did not

force the woman to do so. He denied having any oral sex with her.

Once he ejaculated, defendant pulled his pants up, and turned to

leave. The woman asked defendant for drugs, and he told her to

leave. He then left and went home. He testified that he never

intended on giving the woman drugs. He never saw the woman again.

On cross-examination, defendant testified that he made "$750,

$760" that night selling drugs. Additionally, he stated that he

does not drive and did not have a vehicle.

The Investigation

The police investigation of the incident was conducted by

several officers from the City of Passaic Police Department,

including Officer Raymond Rodriguez.

On the day of the incident, Officer Rodriguez took P.R. in

his patrol car and drove onto Route 21 to the area where she

alleged the incident took place. She could not find the location,

but was able to identify a "castle-looking" building where her

assailant had dropped her off. The officer then took P.R. to the

hospital for a medical examination.

6 A-1518-14T4
 Massiel Delacruz Green, a physician's assistant specializing

in O.B./G.Y.N., testified as an expert witness for the State. She

is qualified in the field of sexual assault forensic examination.

Delacruz Green examined P.R. for about three hours on the day of

the incident. During that exam, Delacruz Green interviewed P.R.,

and collected samples from various parts of her body, including

her anus, vagina, and mouth. Delacruz Green noticed "certain oral

edema, so around P.R.'s mouth it was swollen." Additionally,

Delacruz Green identified "multiple lacerations along the anal

folds" and "micro lesions" along the woman's posterior. However,

Delacruz Green did not notice any bruises, scratches, or knife-

marks on P.R. anywhere on her body, including her anus.

Police Detective Edward Valentin also took part in the

investigation. Initially, police attempted to interview P.R., but

Valentin testified that she was too shaken up to provide a

statement to police. Three days after the incident, Valentin met

P.R. again, and she guided Valentin and Officer Rodriguez to the

place where she believed the assault had occurred. He testified

that P.R. directed them to Route 21, and they got off at a desolate

industrial area in Newark.

P.R. directed the police to a construction site. Once there,

Valentin testified the police noticed a security camera. After

noticing the camera, the police returned P.R. to the Passaic City

7 A-1518-14T4
Police headquarters. Valentin testified that P.R. told police

that her assailant had taken her from her residence at knifepoint,

drove her to the industrial area off Route 21, and assaulted her.

She told police that she never got a good look at her assailant.

After the interview, Valentin returned to the location and

obtained camera footage of the area. However, in viewing that

surveillance video, the officers did not see a car stopping at the

location at the time P.R. said it would appear.

An expert serologist with the State Police conducted a body

fluid analysis from the sexual assault kit. The serologist

detected sperm in the rectal and anal swabs, but found none in the

oral, vaginal, pubic, and fingernail swabs. A DNA expert from the

State Police found a match between the sperm sample and defendant's

own DNA, which had been provided through a previous buccal swab.

The Suppression Hearing and the Subsequent Trial

Prior to trial, the judge reviewed a tape of a post-arrest

interview Detective Valentin conducted of defendant. The judge

also heard testimony from the detective at a suppression hearing.

Based on the detective's failure to inform defendant of his charges

before the questioning, the judge suppressed his statements from

being admitted during the State's case-in-chief. However, because

the judge found the statements were voluntarily given, she ruled

8 A-1518-14T4
that she would allow the statements to be used for impeachment,

if defendant chose to testify.2

As we have already noted, defendant elected to testify. On

cross-examination by one of the two assistant prosecutors who

tried the case as co-counsel, defendant was extensively questioned

about his failure to provide the police with the exculpatory

version of events that he had presented on direct examination.3

The jury deliberated for over a day before rendering its

verdict. The jury found defendant not guilty of kidnapping,

possession of a weapon for an unlawful purpose, unlawful possession

of a weapon, and terroristic threats, but guilty of aggravated

sexual assault and aggravated criminal sexual contact.

After the verdict, defendant moved for a new trial on the

basis that the judge should have submitted lesser-included

offenses to the jury. The judge denied that motion in an oral

opinion.

Sentencing

The trial judge sentenced defendant on October 8, 2014. The

judge merged the third-degree aggravated sexual contact count into

the first-degree aggravated sexual assault count. The judge

2
We discuss this in more detail, infra, in Part II(A).
3
We discuss this cross-examination and defendant's associated
claims of its impropriety, infra, in Part II(A).

9 A-1518-14T4
granted the State's motion to impose an extended term because of

defendant's status as a persistent offender.

The judge found that three aggravating sentencing factors

applied: (3) the risk that defendant will commit another offense,

N.J.S.A. 2C:44-1(a)(3); (6) the extent of defendant's prior

criminal record and the seriousness of the offenses of which he

was convicted, N.J.S.A. 2C:44-1(a)(6); and (9) the need for

deterring defendant and others from violating the law, N.J.S.A.

2C:44-1(a)(9). The judge also found one mitigating factor: (11)

the imprisonment of defendant would entail excessive hardship to

himself or his dependents, N.J.S.A. 2C:44-1(b)(11). The judge

observed that the "aggravating factors are extremely strong and

outweigh the one mitigating factor." As we have already noted,

the judge imposed on defendant a thirty-five-year custodial

sentence, subject to the NERA parole disqualifier.

This appeal followed.

II.

Defendant raises these points for our consideration:

POINT I

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY
AT ALL AS TO THE LAW REGARDING CONSENT
DEPRIVED DEFENDANT OF HIS ONLY DEFENSE AND A
FAIR TRIAL. (Not Raised Below).

10 A-1518-14T4
 POINT II

THE TRIAL COURT ERRED IN PERMITTING EXTENSIVE
CROSS-EXAMINATION OF DEFENDANT ABOUT HIS
FAILURE TO PROVIDE DETECTIVE VALENTIN WITH HIS
EXCULPATORY VERSION OF EVENTS DURING HIS POST-
ARREST INTERROGATION.

POINT III

THE FAILURE TO CHARGE SECOND-DEGREE SEXUAL
ASSAULT AS A LESSER-INCLUDED OFFENSE OF FIRST-
DEGREE AGGRAVATED SEXUAL ASSAULT, AND LESSER-
INCLUDED OFFENSE OF THIRD-DEGREE AGGRAVATED
CRIMINAL SEXUAL CONTACT WAS PLAIN ERROR
BECAUSE SEXUAL PENETRATION OR CONTACT THROUGH
USE OF PHYSICAL FORCE OR COERCION WITHOUT THE
VICTIM SUSTAINING SEVERE INJURY WAS CLEARLY
INDICATED IN THE RECORD.

POINT IV

THE THIRTY-FIVE YEAR DISCRETIONARY EXTENDED
TERM SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
AND AN ABUSE OF THE LOWER COURT'S DISCRETION.

He amplifies the post-arrest silence argument in his reply brief,

as follows:

REPLY POINT I

THE LOWER COURT ERRED IN PERMITTING EXTENSIVE
CROSS-EXAMINATION OF DEFENDANT ABOUT HIS POST-
ARREST SILENCE BECAUSE HIS STATEMENT COULD NOT
HAVE BEEN VOLUNTARY FOLLOWING THE A.G.D.
VIOLATION -- THE DETECTIVE'S FAILURE TO ADVISE
DEFENDANT OF THE PENDING CHARGES DEPRIVED HIM
OF THE ABILITY TO MAKE A VOLUNTARY STATEMENT
UNDER THE LAW (12T106-18 to 107-11; 4T70-23
to 71-1).

11 A-1518-14T4
 III.

We discuss defendant's arguments in a reorganized and

slightly different sequence.

A.

Defendant contends that the trial court erred in allowing one

of the two assistant prosecutors who tried the case to cross-

examine him extensively about his failure to present an exculpatory

account of the underlying events during his post-arrest

interrogation by Detective Valentin. For the reasons that follow,

we agree with that contention.

1.

The relevant aspects of defendant's police interrogation and

cross-examination at trial are as follows. As recounted by

Detective Valentin at the suppression hearing, after P.R. reported

the alleged sexual assault, the State Police requested Valentin

to interview defendant based on a positive match between

defendant's DNA and the victim's submitted sperm sample. Defendant

was already in custody on an unrelated offense.

To facilitate the interview, Detective Valentin arranged for

defendant to be brought on March 20, 2012 at 2:30 a.m. from the

Passaic County Jail to the Passaic City Police Station. Defendant,

still in handcuffs, was brought into an interview room at around

12 A-1518-14T4
11:00 a.m. The detective administered Miranda 4 warnings, and

defendant's restraints were removed before questioning began.

Notably, the detective did not inform defendant of the charges

against him before reading him his rights under Miranda and

proceeding with the interrogation. As the trial court correctly

found, that critical omission violated the requirements set forth

by our Supreme Court in State v. A.G.D., 178 N.J. 56, 66-69 (2003)

(holding that police are obligated before interrogating persons

that a criminal complaint or arrest warrant has been filed or

issued against that person). The foundation of this principle is

that the government's failure to so inform a suspect that such a

criminal complaint or arrest warrant had been filed or issued

"deprives that person of information indispensable to a knowing

and intelligent waiver of [his] rights [to assert the privilege

against self-incrimination]." Id. at 68. "Without advising the

suspect of his true status when he does not otherwise know it, the

State cannot sustain its burden . . . that suspect has exercised

an informed waiver of rights, regardless of other factors that

might support his confession's admission." Ibid.

Applying A.G.D., the trial judge properly ruled that

defendant's responses to the detective's questions could not be

4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

13 A-1518-14T4
used affirmatively by the State against defendant in its case-in-

chief. 5 However, the judge added a qualification that, if

defendant elected to take the stand and testify in his own defense,

the prosecution could cross-examine him about his responses to the

detective as potential impeachment evidence. Defendant's trial

counsel argued against this decision and later objected to this

qualification at trial, but the objection was overruled.

During the detective's recorded interview of defendant, he

asked defendant if he knew somebody by the name of P.R. Defendant

replied that he never heard of her. The detective then alluded

to defendant's detention and his brother's involvement in

narcotics, and then asked defendant, "You want to tell me

something?" Defendant replied, "No."

The detective pressed further and described how the alleged

victim had been threatened at knifepoint, was taken to another

location, and was sexually assaulted. Defendant responded, "I

don't know anything about that." The detective urged defendant

to cooperate with the investigation, noting that he did not "pick

[defendant's] name out of a hat." He again asked defendant if he

did the crime. Defendant repeated, "No." The detective then

asked a general question as to how defendant "got around" the

5
The State has not cross-appealed this aspect of the trial judge's
ruling.

14 A-1518-14T4
previous summer, to which defendant tersely replied in one word:

"Foot."

The interview then turned to the DNA evidence that the

detective said linked defendant to the victim. Once again,

defendant denied knowing the alleged victim. He further denied

the detective's accusation that he had picked up a woman, drove

her into Newark, and had sex with her. The detective then

confirmed that defendant "really [didn't] want to tell [him]

anything."

At that point, the detective read to defendant standard

language consenting to the provision of fresh buccal swabs, noting

that he already had a judge's order compelling such swabs to be

provided. One last time, the detective reiterated, "You're not

going to tell me anything else? You don't have anything else to

say to me?" Defendant remained uncommunicative, and the recorded

interview terminated at that point.

Later at trial, defendant elected to take the stand and

presented on direct examination his sex-for-drugs account of

events. On cross-examination, an assistant prosecutor – as

permitted by the court's pretrial ruling – repeatedly and pointedly

challenged defendant about his failure to provide the sex-for-

drugs narrative when he had been interrogated at the police station

by Detective Valentin. Defense counsel objected repeatedly

15 A-1518-14T4
throughout the cross-examination, but the judge overruled her

argument that no prior inconsistent statements were being

challenged.

The assistant prosecutor read through Detective Valentin's

interview questions, which, as we have already shown, essentially

consisted of P.R.'s account and defendant denying knowledge of

those facts. The prosecutor then inquired of defendant whether

the detective had asked him if he "knew anything about" the rape.

Defendant agreed that he had told the detective "no."

The assistant prosecutor next went through defendant's

positive DNA match. He noted that the detective had asked him "if

something happened." Defendant responded that he told the

detective "I don't know."

After presenting to the jury most of Detective Valentin's

interview, the assistant prosecutor then challenged defendant,

"You never said anything about having sex with a woman in exchange

for drugs, did you? . . . Yes or no?" Defendant responded in the

negative. Pressing him more, the prosecutor asked:

You never said anything to the detective, you
know what? I was out selling drugs that day,
I was trying to make a living for my family,
I had a little bit of drugs left. The woman
offered me some sexual favors for drugs and I
went with her. You never said that to him,
did you?

16 A-1518-14T4
Once again, defendant denied having volunteered such information

during his police interview.

Following a brief recess, defense counsel requested the court

to give the jurors a curative instruction about her client's right

to not volunteer information to the police. Although the judge

did not approve defense counsel's blanket request, the judge did

agree that the prosecutor's specific query to defendant about not

offering to speak again with the police after the interview should

be stricken as improper. The jury returned and the judge issued

a curative instruction on that discrete basis, advising the jurors

that defendant had "a constitutional right to not speak again" to

the detective and that they should not consider that particular

failure to speak up in their deliberations.

After that instruction, the assistant prosecutor resumed

cross-examining defendant about his failure to provide an

exculpatory version of events during the police station interview.

He posed this lengthy leading question:

So, on March 20 of 2012, when you're sitting
down and you're speaking to the detective and
he’s asking you questions in a calm, non-
threatening, non-coercive situation, before
he’s even told you your charge, and he’s
asking you, and he’s telling you that this
information relates to the investigation, you
don't tell him what you've told us today about
a woman coming up to you and tricking and
asking for sexual favors in return for drugs
and that you were out drug dealing that day

17 A-1518-14T4
 and that the woman approached you; you don't
tell him any of that, right?

DEFENDANT: Yes.

[(Emphasis added).]

Finally, the assistant prosecutor's cross-examination of

defendant ended with the following exchange:

PROSECUTOR: When you told Detective Valentin,
when you gave him the answers, he told you you
were charged, and he told you about the
scientific database, you never gave him the
story that you told today, did you?

DEFENDANT: No.

PROSECUTOR: And that's because you thought
you were going to get away with it, didn't
you?

DEFENDANT: What? Excuse me?

PROSECUTOR: That was because [sic] that you
were going to get away with it, didn't you?

DEFENSE COUNSEL: Judge, I have to object at
this point.

DEFENDANT: Get away with what?

DEFENSE COUNSEL: I'm going to ask to be heard.

THE COURT: I will allow it. He is probing
his state of mind at the time. I will allow
it.

DEFENSE COUNSEL: I don't know if the question
makes sense, if he even understands it.

THE COURT: Well, you have your argument. You
have redirect. Overruled. Go ahead.

18 A-1518-14T4
 DEFENDANT: I didn't think I was getting away
with nothing, 'cause I didn't do nothing
wrong.

[(Emphasis added).]

During the final charge, the court explained to the jurors

that they were permitted to consider defendant's responses during

the detective's interview as prior statements that could affect

his credibility. The judge advised the jurors in this regard to

consider "such factors as to where and when the prior statement[s]

occurred, and the reasons given, if any, therefore."

2.

On appeal, defendant urges that the State was improperly

allowed to impeach him with his failure to present an exculpatory

account of the incident during the post-arrest interview with

Detective Valentin. He further argues that the assistant

prosecutor unfairly capitalized on this erroneous ruling on cross-

examination, thereby undermining his constitutional right to be

silent and refrain from providing such a narrative to the

investigating authorities.

The pertinent case law supports defendant's claim of error.

In State v. Deatore, 70 N.J. 100, 115-16 (1976), the Supreme Court

noted that it is "fundamental" in our State that a criminal suspect

has the right to remain silent when in police custody or

19 A-1518-14T4
interrogation, id. at 114, and that when such an individual

expressly refuses to answer police queries, "no inference can be

drawn against him under the doctrine of acquiescence or any other

concept," id. at 115 (quoting State v. Ripa, 45 N.J. 199, 204

(1965)).

The Court amplified these principles in State v. Muhammad,

182 N.J. 551, 568 (2005), reiterating that a prosecutor may not

refer to a defendant's silence while he was in police custody as

a basis to infer his guilt. Similar to the present case, the

prosecutor in Muhammad faulted the defendant, who was charged with

a sexual assault, for failing to tell the police that the alleged

sexual encounter was consensual. Id. at 566. The Court repudiated

this tactic as "impal[ing] defendant on his silence[.]" Id. at

566-67. The Court reasoned that a jury should not be able to

infer guilt from a suspect's silence, because we "cannot know

whether a suspect is acquiescing to the truth of an accusation or

merely asserting his privilege[.]" Id. at 567.

To be sure, our case law does recognize these principles are

not without limitation. As the Supreme Court ruled in State v.

Tucker, 190 N.J. 183, 189 (2007), "a defendant's right to remain

silent is not violated when the State cross-examines a defendant

on the differences between a post-Miranda statement and testimony

at trial." When a defendant speaks, he has not remained silent.

20 A-1518-14T4
Ibid. Therefore, it is not inappropriate for the State "to point

out differences in the defendant's testimony at trial [if] his

[earlier] statements [] were freely given." Ibid.

In Tucker, the defendant volunteered – in his third and final

session with police interviewing him about the death of his mother

– that he had taken her to the bank during the pertinent timeframe,

a claim that he had not divulged in his first two interviews. Id.

at 186-87. Given such circumstances, the Court held that it was

permissible for the prosecution to point out at trial the

inconsistencies in defendant's voluntary statements and other

evidence at trial. Id. at 190. The State's use of such

inconsistencies, the Court held, did not comprise "an

unconstitutional comment on [a defendant's] silence." Ibid.

Very recently, the Supreme Court applied these general

principles in State v. Kucinski, 227 N.J. 603 (2017).6 In that

case, the defendant was arrested for murder, given Miranda

warnings, and then participated in an interview with the police.

Id. at 608. The defendant insisted that he speak with the police

"to tell [them] the truth," and he initially provided certain

details. Id. at 622. However, as the interview progressed, the

defendant refused to answer certain specific questions, conduct

6
Counsel helpfully submitted to us supplemental briefs addressing
Kucinski shortly after it was issued.

21 A-1518-14T4
which the Court deemed to be "not an attempt to end the dialogue,

but rather . . . 'part of an ongoing stream of speech[.]'" Id.

at 623 (citing Bradley v. Meachum, 918 F.2d 338, 342 (2d Cir.

1990) cert. denied, 501 U.S. 1221, 111 S. Ct. 2835, 115 L. Ed. 2d

1004 (1991)). The Court held that the defendant waived his right

to silence, and that any conflicts between his direct testimony

at trial and his post-arrest statement were appropriate topics for

cross-examination by the prosecutor. Id. at 623-24.

The situation here is markedly different from Tucker and

Kucinski. For one thing, as the judge determined, defendant was

not even duly informed of the charges against him until part-way

through the interview. Beyond that flaw, a fair reading of the

interview transcript as a whole supports defendant's argument that

his responses to Detective Valentin essentially consisted of flat

denials, interspersed with outright refusals to respond. Unlike

the suspects in Tucker and Kucinski, defendant did not volunteer

to the police an affirmative narrative, such as Tucker's alleged

trip to the bank with his mother, see Tucker, supra, 190 N.J. at

186, or Kucinski's claim that the decedent, his brother, had

threatened to kill him with a gun and had bitten him. See Kucinski,

supra, 227 N.J. at 609-10. Here, as Detective Valentin literally

remarked to defendant after peppering him with questions without

success, he "really didn't want to tell him anything."

22 A-1518-14T4
 Although we appreciate the trial court's general sensitivity

to defendant's constitutional rights and her conscientious efforts

to impose boundaries on the prosecution, the State went too far

here in emphatically criticizing defendant for not volunteering

to Detective Valentin that he had consensual sex with P.R. after

she had offered to exchange sex for drugs. The protracted cross-

examination permitted by the court improperly failed to honor

defendant's constitutional right to refuse to engage in a

substantive dialogue with the interrogating officer.7

We further conclude that this violation of defendant's rights

was not harmless error. The case largely hinged upon the

credibility of P.R.'s version of events versus defendant's

competing version. There were no eyewitnesses presented at trial.

The surveillance video of the alleged location of the sexual

assault failed to substantiate P.R.'s narrative. The knife

allegedly used to threaten P.R. was never produced. Several

details of her account were only claimed for the very first time

in her direct examination at trial. The DNA testing did show that

defendant had sexual contact with P.R., but that fact was not

7
To be clear, we do not suggest that the assistant's prosecutor's
cross-examination was in any way unprofessional, since his mode
of impeachment had been expressly authorized in advance by the
trial court. The assistant prosecutor did exactly what a zealous
advocate might be expected to do in compliance with a court's
ruling.

23 A-1518-14T4
disputed at trial. What was hotly disputed were the actual series

of events that led to the contact occurring.

In sum, this was a relatively close case on the facts, which

turned greatly on the jury's assessments of the sexual actors'

credibility. The tenor and contents of the prosecution's

blistering cross-examination of defendant likely made a difference

in the jury's evaluation of which actor to believe.

We are mindful that the trial court issued well-intentioned

instructions to the jurors, which were designed to contain the

impact of the State's cross-examination to the impeachment of

defendant's testimony. Although such instructions surely would

have been appropriate in a case in which a defendant had provided

a contrary narrative to investigating officers, no such narrative

was advanced by this defendant at the police station. Instead,

he provided no substantive information, except the incidental fact

that he got around on "foot." Even though the assistant prosecutor

who presented the State's closing argument to the jury did not

mention her colleague's cross-examination, she did not need to do

so strategically, for presumably the damage had already been done

through her partner's lengthy excoriation of defendant's silence.

In sum, we lack confidence that the error was inconsequential,

and thereby direct that the case be tried anew. See State v.

Macon, 57 N.J. 325, 333 (1971); R. 2:10-2 (regarding the appellate

24 A-1518-14T4
court's role in providing relief from trial errors that were

"clearly capable of producing an unjust result"). At the new

trial, the prosecution will be barred from presenting any evidence

of defendant's responses to the detective's interrogation.

B.

Because we are ordering a new trial, we need not comment at

length on the remaining issues. Nevertheless, we address them

briefly for sake of completeness.

1.

Defendant claims that the final jury charge was flawed because

it did not include an instruction about a sexual actor's consent.

In addition, defendant separately argues that the trial judge

should have included in the charge the elements of the lesser-

included offenses of second-degree sexual assault, N.J.S.A. 2C:14-

2(c)(1), and fourth-degree criminal sexual contact, N.J.S.A.

2C:14-3(b).

Significantly, none of these jury charges were requested by

defendant before or during trial. Where, as here, a defendant

does not object to jury instructions at a trial, the plain error

standard of review applies. See, e.g., State v. Burns, 192 N.J.

312, 341 (2007). In addition, we must consider alleged errors in

the jury charge in light of its totality, rather than in isolation.

Ibid. (citing State v. Chapland, 187 N.J. 275, 289 (2006)). That

25 A-1518-14T4
said, we are also mindful of the general principle that trial

courts have "the independent duty" to provide jurors with "accurate

instructions on the law as it pertains to the facts and issues of

each case, irrespective of the particular language suggested by

either party." State v. Reddish, 181 N.J. 553, 613 (2004).

Applying these principles here, we discern no basis to grant

defendant a new trial because of alleged flaws in the charge.

First, we reject defendant's argument that the trial court

was obligated, sua sponte, to instruct the jurors as to the law

of consent reflected in the model criminal charges. See Model

Jury Charge (Criminal), "Aggravated Sexual Assault in the Course

of a Felony: Consent Alleged, N.J.S.A. 2C:14-2(a)(3)" (2012). Such

an instruction on consent was not required in the circumstances

here, because this was a case in which the alleged victim contended

that she was compelled to take part in sexual acts due to

defendant's threats of violence or force. See State v. Jones, 308

N.J. Super. 174, 187 (App. Div.), certif. denied, 156 N.J. 380

(1998) (ruling that a consent instruction was not necessary in a

case where the State contended that the defendant had kidnapped

the victim and used force against her to sexually assault her);

State v. Cuni, 303 N.J. Super. 584, 598 (App. Div. 1997), aff'd

on other grounds, 159 N.J. 584 (1999) (holding, by contrast, that

a consent instruction was necessary, given the factual dispute

26 A-1518-14T4
concerning the mental capacity of the alleged victim to engage in

the sexual conduct, and where the State did not allege that the

defendant had used force or violence). See also In re M.T.S., 129

N.J. 422, 447-49 (1992) (noting that defense of consent is

inapplicable to cases in which the State alleges "violence or

force extrinsic to the act of penetration").

Nor was the trial court obligated to instruct the jurors, sua

sponte, on the two lesser-included offenses that defendant did not

posit until after the verdict was rendered. As a general

proposition, unrequested jury charges on lesser-included offenses

are only necessary where the facts and evidence "clearly indicate"

a basis to support such an offense. State v. Carrero, ___ N.J.

___, ___ (2017) (slip op. 11); State v. Jenkins, 178 N.J. 347, 361

(2004).

Here, the proofs adduced at trial did not clearly indicate a

sufficient evidential basis to charge the lesser-included offenses

of non-aggravated sexual assault and sexual contact. The jury was

presented with only two testimonial versions of the incident:

P.R.'s account of her abduction at knifepoint and forced sexual

assault versus defendant's claim that the sexual activity was the

result of his acceptance of P.R.'s offer of sex for drugs. Either

the jury was likely to believe defendant that the sex was not

physically coerced, or alternatively believe P.R. that it was.

27 A-1518-14T4
 The evidence did not manifestly support a middle-ground

possibility of non-aggravated sexual wrongdoing committed without

any force or threat of violence. The mere fact that defendant was

ultimately acquitted of kidnapping, terroristic threats, and

weapons offenses does not retroactively compel the issuance of an

instruction on lesser offenses that was never requested and one

not "clearly" suggested by the evidence.

2.

Defendant's final argument that his extended-term sentence

is manifestly excessive requires little comment. As the trial

judge appropriately took into account, defendant has a substantial

prior criminal record, including multiple felony convictions, and

his commission of what the jury found to be his guilt of a first-

degree offense warranted a lengthy custodial term. We discern no

abuse of discretion in the judge's sound and detailed sentencing

analysis, and therefore will not disturb it. State v. Case, 220

N.J. 49, 65 (2014); State v. Fuentes, 217 N.J. 57, 73 (2014). Had

we upheld defendant's guilty verdict, the sentence would have been

entirely justified.8

8
To the extent that we have not already explicitly addressed them,
all other arguments and sub-arguments raised on appeal by defendant
lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

28 A-1518-14T4
 IV.

Defendant's judgment of conviction is reversed and remanded

for a new trial, solely because of the prosecution's improper and

highly prejudicial cross-examination impugning his failure to

present an exculpatory narrative during post-arrest police

interrogation. In all other respects, defendant's claims of error

are rejected, and the trial court's rulings and overall handling

of this matter are affirmed. We do not retain jurisdiction.

29 A-1518-14T4