                       RECORD IMPOUNDED

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-3775-16T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,              APPROVED FOR PUBLICATION

v.                                               June 21, 2019

                                            APPELLATE DIVISION
JUAN E. CRUZ-PENA,

     Defendant-Appellant.
___________________________

           Argued May 6, 2019 – Decided June 21, 2019

           Before Judges Haas, Sumners and Susswein.

           On appeal from Superior Court of New Jersey, Law
           Division, Passaic County, Indictment No. 14-11-0932.

           Tamar Yael Lerer, Assistant Deputy Public Defender,
           argued the cause for appellant (Joseph E. Krakora,
           Public Defender, attorney; Joshua David Sanders,
           Assistant Deputy Public Defender, of counsel and on
           the brief).

           Valeria Dominguez, Deputy Attorney General, argued
           the cause for respondent (Gurbir S. Grewal, Attorney
           General, attorney; Sarah Lichter, Deputy Attorney
           General, of counsel and on the brief).

     The opinion of the court was delivered by

SUSSWEIN, J.S.C. (temporarily assigned).
      This case arises from a violent criminal episode during which defendant

Juan Cruz-Pena subjected his victim to four to five hours of uninterrupted sexual

abuse. Defendant was acquitted at trial of the most serious sexual offense with

which he was charged – first-degree aggravated sexual assault – but was found

guilty of first-degree kidnapping, third-degree aggravated criminal sexual

contact, and third-degree aggravated assault.       He appeals only from his

kidnapping conviction, claiming that the victim's confinement was merely

incidental to the underlying sex crime and, therefore, the kidnapping charge

should not have been submitted to the jury. We agree.

      The record clearly shows that the victim's confinement was inherent in the

sexual abuse defendant inflicted upon her.      The force and threat of force

defendant used to restrain the victim were the same force and threats he used to

accomplish the sex crime with which he was separately charged. Furthermore,

the risk of harm the victim faced throughout her hours-long ordeal, while

substantial, was not independent of the danger posed by defendant's continuous

sexual attack. We therefore conclude that in accordance with authoritative

precedent interpreting the New Jersey Code of Criminal Justice, N.J.S.A. 2C:13-

1(b), the kidnapping charge should not have been submitted to the jury.




                                       2
                                                                          A-3775-16T3
                                          I.

        We derive the following facts from the evidence presented by the State at

trial. In the early morning hours of May 22, 2014, C.M. 1 was walking along

Van Houten Street in Paterson, New Jersey, when she saw her friend, Lillian, on

a covered porch of an abandoned house. Lillian was talking to two men that

C.M. did not recognize.       They were later identified as defendant and co -

defendant Daniel Ortiz.2 C.M. voluntarily came up on the porch and joined the

three individuals in conversation. At some point, C.M. gave Lillian sixteen

dollars and dispatched her to purchase heroin and crack cocaine. While waiting

for Lillian to return with the drugs, C.M. and defendant negotiated a deal for

C.M. to provide oral sex in exchange for twenty dollars. When Lillian returned,

C.M. and Lillian ingested the drugs. Soon after, Lillian left a second time to

purchase more drugs, this time with money supplied by defendant. She never

returned.

        When C.M. realized that Lillian was not coming back, she attempted to

leave the porch. Defendant told her that she could not leave. He demanded that

she reimburse him for the money he had given to Lillian to purchase drugs, and


1
  We use initials for the victim and a pseudonym for her friend on the porch to
protect their identities.
2
    Ortiz's case was severed and he is not a party to this appeal.

                                          3
                                                                         A-3775-16T3
he punched C.M. in the face, causing her head to slam violently into the wall.

Defendant then forced C.M. to perform fellatio on him, sodomized her, and

vaginally penetrated3 her with his penis. 4 Throughout the extended encounter,

the sexual attack alternated between oral sex and vaginal/anal penetration.

C.M., who weighs less than 100 pounds, repeatedly pleaded for defendant to

stop as she tried to squirm and dodge his advances. She testified that he held a

box cutter knife to her back, forcing her to comply out of fear. 5 At one point,

defendant became irritated because C.M. was bleeding on him, and he punched



3
   For purposes of deciding whether the kidnapping charge should have been
submitted to the jury, it does not matter that defendant was acquitted of the first -
degree aggravated sexual assault offense and was convicted instead of a lesser -
included offense of aggravated criminal sexual contact. In determining whether,
for example, the force defendant used to commit the continuous sexual abuse
was the same force that was used to confine the victim, we apply the standard
used in deciding a motion for acquittal and give the State the benefit of all its
favorable testimony and all the favorable inferences drawn from that testimony. See
State v. Dekowski, 218 N.J. 596, 608 (2014).
4
  In her summation to the jury, the trial prosecutor offered an explanation, based
on the trial evidence, for why the continuous sexual attack cycled between
vaginal and anal penetration over the course of several hours. The prosecutor
argued, "[h]e forces her to submit to him penetrating her vagina, penetrating her
anus, over and over for hours. Why for hours? Because [C.M.] testified the
defendant sniffed cocaine, and in her experience when a man takes cocaine he
cannot maintain an erection. Think about that detail. Hours and hours until it
starts getting light outside – 5, 5:30 in the morning."
5
  We note that the jury acquitted defendant of all weapons-related charges. See
footnote 3.

                                         4
                                                                            A-3775-16T3
her in the face a second time. He also directed Ortiz to join him in sodomizing

C.M. for about five minutes.

      The sexual abuse continued unabated until one of C.M.'s friends walked

by the abandoned house and saw the victim on the porch engaged in sexual

activity with defendant. C.M. mouthed the words "help me" to her friend, who

then intervened, affording C.M. an opportunity to flee from the porch. C.M.

went to a nearby gas station where she called the police.

      In November 2014, a grand jury returned an indictment against defendant

concerning this incident. The indictment charged defendant with first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6) (count one); second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(2) (count three); third-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); fourth-

degree possession of a weapon, N.J.S.A. 2C:39-5(d) (count five); first-degree

kidnapping, N.J.S.A. 2C:13-1(b)(1) and N.J.S.A. 2C:13-1(b)(2) (count six); and

first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and N.J.S.A. 2C:15-1(a)(2) (count

seven).

      A trial was held in the summer of 2016, after which the jury convicted

defendant of first-degree kidnapping.       He was acquitted of first-degree

aggravated sexual assault, but was found guilty of the lesser-included offense of


                                       5
                                                                        A-3775-16T3
third-degree aggravated criminal sexual contact.     He also was acquitted of

second-degree aggravated assault, but was found guilty of the lesser-included

offense of third-degree aggravated assault. The jury acquitted defendant of the

first-degree robbery charge, the aggravated assault charge in count three, and

both weapons offenses.

      On February 13, 2017, defendant appeared for sentencing before the judge

who presided over the trial. The court found aggravating factors one, N.J.S.A.

2C:44-1(a)(1) (the nature and circumstances of the offense and the actor's role

therein, including whether it was committed in an especially heinous, cruel, or

depraved manner); two, N.J.S.A. 2C:44-1(a)(2) (the gravity and seriousness of

the harm inflicted on the victim, including whether the defendant knew or

reasonably should have known that the victim was particularly vulnerable or

incapable of exercising normal physical or mental power of resistance); three,

N.J.S.A. 2C:44-1(a)(3) (the risk of committing another offense); six, N.J.S.A.

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

1(a)(9) (the need for deterring the defendant and others). The court found no

mitigating factors.   The trial judge sentenced defendant on the kidnapping

conviction to a twenty-three year prison term, subject to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed five-year "flat" prison

terms on both the aggravated criminal sexual contact and aggravated assault


                                       6
                                                                        A-3775-16T3
convictions. All three prison terms were ordered to be served concurrently. The

court also ordered defendant to a term of parole supervision for life, and ordered

defendant to register under Megan's Law as a sex offender.

      On appeal, defendant now raises the following contentions:

             POINT I: THE CRIME OF KIDNAPPING WAS NOT
             SUPPORTED     BY   SUFFICIENT   EVIDENCE
             BECAUSE      THE    CONFINEMENT      WAS
             INCIDENTAL TO THE OTHER CRIMES;
             THEREFORE, THE TRIAL COURT SHOULD HAVE
             GRANTED THE MOTION FOR A JUDGMENT OF
             ACQUITTAL ON THAT CHARGE.

             POINT II: [DEFENDANT]'S SENTENCE IS
             EXCESSIVE, UNDULY PUNITIVE, AND MUST BE
             REDUCED.

                                       II.

      We first consider the legal principles governing this appeal, beginning

with the standard of review that applies. During trial, defendant made a generic

motion for a judgment of acquittal, contending that the State had failed "to prove

a prima facie case as to all of the elements and all of the counts listed in the

indictment." 6   Defendant did not argue that he should be acquitted of the


6
  The State urges us to affirm the kidnapping conviction because the trial court
instructed the jury in accordance with the model kidnapping jury charge, which
accurately recites the legal principles that explain what constitutes confinement
for purposes of the kidnapping offense. The issue now before us, however, is
not whether the jury was properly instructed as to the law, but rather whether
the trial court should have allowed the jury to consider the kidnapping count.

                                        7
                                                                         A-3775-16T3
kidnapping charge on the specific grounds that the victim's confinement was

incidental to the other underlying substantive offenses. Defendant, in other

words, did not raise the same legal argument at trial that he now makes on

appeal. Accordingly, we analyze the issue before us under the plain er ror

standard. R. 2:10-1; State v. Wright, 155 N.J. Super. 549 (App. Div. 1978).

      Our review of the denial of a motion for acquittal is de novo. State v.

Dekowski, 218 N.J. 596, 608 (2014). We use "the same standard as the trial

court in determining whether a judgment of acquittal was warranted." State v.

Ellis, 424 N.J. Super. 267, 273 (App. Div. 2012). In our review, we assess

"whether the State presented sufficient evidence to defeat an acquittal motion."

Dekowski, 218 N.J. at 608. "We must determine 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 reasonable doubt." Ibid. (quoting State

v. Williams, 218 N.J. 576, 594 (2014)); see also State v. Reyes, 50 N.J, 454,

458-59 (1967). Like the trial court, we "must consider only the existence of



The same circumstance was presented in State v. Lyles, 291 N.J. Super. 517
(App. Div. 1996), where we acknowledged that the jury had been instructed in
accordance with the model kidnapping charge, but nonetheless held "that crime
[kidnapping] never should have gone to the jury. The evidence adduced by the
State did not support it." Id. at 528.

                                       8
                                                                        A-3775-16T3
such evidence, not its 'worth, nature, or extent.'" State v. Brooks, 366 N.J.

Super. 447, 453 (App. Div. 2004) (quoting State v. Kluber, 130 N.J. Super. 336,

342 (1974)).

      We turn next to defendant's substantive legal argument and the

foundational principles of law that pertain specifically to prosecutions for

kidnapping. The statute that defines the kidnapping offense, N.J.S.A. 2C:13-

1(b), provides in pertinent part that:

             A person is guilty of kidnapping if he unlawfully
             removes another from his place of residence or
             business, or 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:

             (1) To facilitate commission of any crime or flight
             thereafter;

             (2) To inflict bodily injury or to terrorize the victim or
             another . . . .

      Defendant's challenge to his first-degree kidnapping conviction requires

us to review how the material element of "confinement" has been interpreted

and applied in cases where a defendant is charged with other offenses occurring

at the same time as the alleged kidnapping. We first note by way of general

background that there are two basic kidnapping scenarios. In one, the kidnapper

seizes the victim and removes him or her to another place – a process known in

common law as "asportation." The other form of kidnapping occurs when the

                                         9
                                                                          A-3775-16T3
offender confines the victim for a substantial period in the place where he or she

is found. The case before us involves the latter type of kidnapping; the State

did not allege or prove that defendant moved C.M. a substantial distance from

the vicinity where she was found. Indeed, in this case, there was no movement

at all as defendant did not remove C.M. from the porch that she had entered

voluntarily. We thus focus our attention on what it means to confine a victim

for a substantial period.

      In State v. Masino, 94 N.J. 436 (1983), the Supreme Court carefully traced

the origins and history of the kidnapping statute from its roots in the common

law to its refinement in the Model Penal Code and to its eventual codification in

the New Jersey Code of Criminal Justice. Id. at 440-46. In State v. LaFrance,

117 N.J. 583 (1990), the Court had further opportunity to address the unlawful

confinement alternate to the asportation element that had been required under

the common law and New Jersey's predecessor kidnapping statute. The Court

expounded on Masino and emphasized that "not every movement or confinement

of a victim is a kidnapping." Id. at 586. Importantly for purposes of this appeal,

the Court in LaFrance held that N.J.S.A. 2C:13-1(b) requires proof of movement

or restraint "that is not merely incidental to the underlying substantive crime."

Id. at 591. The Court added that in determining whether confinement in a

particular case is incidental to the underlying substantive crime, we should


                                       10
                                                                         A-3775-16T3
consider not only whether the confinement is inherent in the separate underlying

offense, but also whether the circumstances of the confinement created a

significant danger to the victim independent of that posed by the separate

offense. Id. at 587-88.

      The Court also explained what constitutes a "substantial period" for

purposes of the kidnapping statute, noting that:

            [O]ne is confined for a substantial period if that
            confinement 'is criminally significant in the sense of
            being 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 [or others].
            That enhanced risk must not be trivial.'

            [Id. at 594 (quoting State v. Masino, 94 N.J. at 447)].

      Accordingly, we must look beyond the length of confinement as measured

in seconds, minutes, or, in this instance, hours. As we noted in State v. Soto,

340 N.J. Super. 47 (App. Div. 2001), "[t]he cases on confinement focus on the

enhanced risk of harm rather than the duration of confinement." Id. at 74. "It

is the enhanced risk of harm that makes the confinement more than merely

'ancillary to the crime that was its purpose.'" Ibid. (quoting State v. Lyles, 291

N.J. Super. 517, 526 (App. Div. 1996)).

      In Soto, we held that the evidence did not support a conviction for

kidnapping in a case where the victim's mouth had been duct-taped and he was

                                       11
                                                                         A-3775-16T3
bludgeoned to death during a struggle. Id. at 75. We found that there was

neither confinement for a substantial period, nor anything that enhanced the risk

to the victim. Ibid. "Whatever brief period of time [the victim] may have been

confined was merely incidental to the other crimes for which defendant was

convicted: the burglary, robbery, aggravated assault, and felony murder." Ibid.

We thus concluded that it was error to submit the kidnapping charge to the jury.

      Other cases have also focused on whether the offense conduct enhanced

the risk of harm beyond that inherent in the underlying crime. For example, in

State v. Bryant, 217 N.J. Super. 72, 81-82 (App. Div. 1987), the act of binding

and gagging the elderly burglary victims justified a kidnapping conviction only

because the victims were left in that condition after the defendant's fled, leaving

them more vulnerable to harm after the crime had been completed. See also

State v. Denmon, 347 N.J. Super. 457, 465-66 (App. Div. 2002) (handcuffing

robbery victims to each other after robbers fled increased the risk of injury).

      The Supreme Court's decision in State v. Jackson, 211 N.J. 394 (2012),

provides further guidance on how to apply the fundamental principles

recognized in LaFrance.      In Jackson, the Court held there was sufficient

evidence to support the jury verdict with respect to both the "substantial

distance" and "substantial confinement" elements of N.J.S.A. 2C:13-1(b),

because the defendant's constraints on his victim "went beyond the acts that were


                                        12
                                                                          A-3775-16T3
necessary to accomplish the armed robbery with which he was separately

charged." Id. at 418. In that case, the defendant did not simply enter the taxi,

brandish his weapon, demand and collect money from the victim, and depart the

scene leaving the victim in a position to promptly seek help. Id. at 398. Rather,

the defendant isolated the victim by ordering the victim to drive him to a location

blocks away, thereby exposing the victim to an enhanced risk of harm. Id. at

418-19. As the Court explained,

            Because defendant remained in the taxi after the
            robbery was over and insisted that [the victim] drive
            him to Broadway, he kept the victim in an isolated and
            vulnerable position. Defendant, brandishing a gun,
            forced [the victim] to operate his taxi for several
            minutes, through city streets, exposing him to the risk
            of a serious accident, injury or death by virtue of a
            desperate attempt to escape, or the danger of
            confrontation between defendant and law enforcement.
            The "linear distance" travelled was considerable, but
            the increased risk of harm imposed on the victim was
            greater still.

            [Id. at 419].

      Of particular importance to the case before us in this appeal, the Court

added that, "[t]he same considerations support defendant's conviction under the

'substantial confinement' standard of N.J.S.A. 2C:13-1(b). The isolation and

vulnerability experienced by the victim in this case was not coextensive with the

armed robbery." Ibid.



                                        13
                                                                          A-3775-16T3
      The Law Division reached a similar conclusion in State v. Arp, 274 N.J.

Super. 379 (Law Div. 1994), where the victim voluntarily entered the

defendant's car. After a time, the defendant transported her in the car and then

sexually assaulted her and used force on her to prevent her from exiting. As the

trial judge noted, "[t]hat same automobile then served as a means of transporting

her away from her home and help, thereby increasing her vulnerability and the

risk of harm." Id. at 383.

      We reached a different result in Lyles, where we concluded that the force

or coercion used by the defendant to commit the aggravated sexual assault did

not put the victim at risk of any other more serious crime, thus providing

insufficient evidence to support a kidnapping conviction. 291 N.J. Super. at

527-29.

                                      III.

      We now turn to the application of the foregoing legal principles to the

evidence adduced by the State at trial. The victim initially entered the covered

porch voluntarily. It was only after C.M. realized that Lillian would not return

with more drugs that she decided to leave. At that point, defendant threatened

her and struck her violently. That was the moment that involuntary confinement

began for purposes of our kidnapping analysis.




                                       14
                                                                        A-3775-16T3
      What followed was a protracted sequence of violent, nonconsensual

sexual acts spanning the course of four to five hours. This series of sex acts and

physical assaults were integral parts of a single course of uninterrupted criminal

conduct. We note in this regard that count one of the indictment, which charged

defendant with first-degree aggravated sexual assault, alleged that the defendant

"did commit an act of aggravated sexual assault upon [C.M], by performing an

act of sexual penetration, with the use of physical force or coercion . . . ."

(Emphasis added). The theory of the prosecution as set forth in the indictment

is consistent with the notion that the alleged sexual predation in this case

constituted a single continuous criminal episode spanning several hours. That

is significant because we need to determine whether the acts constituting the

alleged kidnapping are coextensive and coterminous with the acts constituting

the alleged sexual assault.

      Putting aside the prosecution theory set forth in the charging instrument,

we turn our attention to the actual proofs the State presented at trial. We have

reviewed the trial record closely, focusing especially on the victim's testimony,

for any evidence that might reasonably suggest that C.M.'s confinement was in

any respect independent of the sexual attack that defendant inflicted upon her,

or else exposed her to a greater risk of harm than the risk inherent in the sexual

and physical abuse she endured throughout this episode. Even when viewing


                                       15
                                                                         A-3775-16T3
the evidence in the light most favorable to the State, we find nothing in the

record that refutes defendant's contention that C.M.'s confinement was merely

incidental to the sex crime she endured.

      First, there is no evidence of any interruption in the ongoing sexual abuse

during the period of confinement. In other words, so far as the trial record

shows, there was never a point in time when C.M. was being restrained but was

not being sexually abused. That circumstance supports the conclusion that the

same force and threats were used to confine her and to sexually abuse her.

      Furthermore, defendant never moved the victim off the porch.              We

recognize that the State did not present this case as a "substantial distance" type

of kidnapping. Even so, the absence of any displacement is relevant to the

critical question whether defendant did anything to isolate the victim or

otherwise render her more vulnerable to harm. See, e.g., State v. Purnell, 394

N.J. Super. 28, 53 (App. Div. 2007) (removing the victim up an additional flight

of stairs was not merely incidental to the underlying sexual crimes because it

exposed her to an increased risk of harm).

      The outcome of this appeal might well be different if, for example,

defendant had moved C.M. off the porch and into the interior of the abandoned

house. Forcing the victim behind closed doors, even if that entailed moving her

only a few feet, would have made her more vulnerable and less likely to be


                                        16
                                                                          A-3775-16T3
rescued. However, in this instance, defendant did nothing to isolate her by

moving her out of public view from the sidewalk or street. Indeed, even as

defendant was actively engaged in nonconsensual sexual activity with the

victim, she was able to summon aid from her friend who walked by the

abandoned house by silently mouthing the words "help me." This shows that

the porch – and thus the criminal conduct committed on the porch – was exposed

to public view and was close enough to the street that the passerby could

recognize C.M., see that she was engaged in sexual activity, and correctly

interpret her silent plea for help.

      The State urges us to rely on Arp, 274 N.J. Super. 379. In that case, the

victim voluntarily entered the defendant's vehicle. After a time, the defendant

sexually assaulted her and used force on her to prevent her from exiting. The

present case thus is similar to Arp in that what started as a consensual encounter

eventually transformed into a nonconsensual sexual assault.               Arp is

distinguishable, however, because the defendant in that case transported the

victim in the car "away from her home and help, thereby increasing her

vulnerability and the risk of harm." Id. at 383.

      We next consider whether there is any legal significance in the fact that

defendant cut off C.M.'s outer clothing, and whether that act exposed her to a

greater risk of harm than that inherent in the underlying sex crime. It reasonably


                                       17
                                                                         A-3775-16T3
appears, however, that this act of force was done as part of and incident to the

sexual abuse. We take note that the State's brief describes this circumstance as

follows: "He [defendant] then stripped [C.M.] of her clothing and forced her to

perform oral sex on him." The State has not argued that defendant disrobed her

for a purpose independent of the sexual abuse, such as to make it more difficult

for her to escape or seek help.

      The circumstances of the removal of C.M.'s clothing is thus

distinguishable from the facts in Arp. In that case, the trial court observed that,

"[d]efendant's intention to confine [the victim] in the car so that she could not

escape or seek help is apparent from the fact that he allegedly forced her to

remove her clothing before going out to urinate. Presumably, he believed that

this would force her to return to the car." 274 N.J. Super. at 383-84. In the

present case, in contrast, defendant cut off the victim's dress during and as part

of the sexual abuse. There is no evidence that he ever permitted her to leave the

porch to relieve herself or for any other reason. We therefore conclude that on

the facts of the case before us, the act of stripping off C.M.'s dress did not

convert the alleged rape into a kidnapping.

      So too, C.M. was never bound, gagged, and left behind by her assailants.

So far as the trial record indicates, defendant and co-defendant Ortiz never left

the porch before C.M. finally escaped, and thus they never left C.M. behind in


                                        18
                                                                          A-3775-16T3
a vulnerable condition as occurred in Bryant and Denmon. Rather, the sexual

predation continued right up to the moment C.M. fled from the porch with the

assistance of the passerby who came to her rescue.

      In sum, considering all of the evidence adduced at trial, it is clear to us

that the force and threat of force defendant applied against C.M. to restrain her

movements was indistinguishable from the force and threats he used to commit

the sexual crime he was separately charged with. To be sure, throughout her

extended confinement, C.M. remained at great risk of harm, but that risk was of

further sexual and physical abuse by defendant. The danger she faced from

confinement, in other words, was not independent of the danger inherent in the

underlying sex crime. While C.M. remained vulnerable to repeated, indeed

incessant criminal attack throughout her hours-long ordeal, her isolation and

vulnerability was coextensive and coterminous with the sexual abuse. There

simply were no acts committed by defendant to restrain the victim that went

beyond the acts necessary to accomplish the sex crime with which defendant

was separately charged. See, e.g., Jackson, 211 N.J. at 418. For that reason, we

are constrained by the binding precedents interpreting N.J.S.A. 2C:13-1(b) to

conclude that the State did not produce sufficient evidence for the kidnapping

charge to be considered by the jury, and therefore, the trial court erred by not

entering a verdict of acquittal on that charge at the end of the State's case.


                                        19
                                                                           A-3775-16T3
                                    IV.

      Defendant also contends that his sentence was excessive. We need not

address that issue in view of the fact that his conviction for first-degree

kidnapping must be vacated. We reverse the defendant's kidnapping conviction

and remand to enter a judgment of acquittal on the kidnapping count. We do

not retain jurisdiction.

      Reversed and remanded.




                                    20
                                                                    A-3775-16T3
