MORRIS COUNTY

Butler rape victim takes witness stand

Peggy Wright
@PeggyWrightDR

A woman who was sexually assaulted in a car outside a bagel shop in Butler in 2007 identified suspect Andrew Pena at his trial on Thursday as the attacker who wore "a disgusting grin" and molested her after yanking her out of the car.

Sexual assault suspect Andrew Pena

The victim, who was 19 when she was assaulted on Jan. 28, 2007, kept her composure during several hours on the witness stand before the Morris County jury but became emotional as she described some aspects of the assault under questioning by county Assistant Prosecutor Christopher Schellhorn.

Pena, 48 and a carpenter from Vernon, has been representing himself throughout the trial, but designated standby defense counsel Elizabeth Martin cross-examined the woman, using questions dictated by Pena.

A few times, the cross-examination questions drew the wrath of state Superior Court Judge Stephen Taylor, who called the parties up to a sidebar.

"You went there to purchase drugs?" Martin asked the victim, now 28, of the 3 a.m. trip she said she took with two female friends to the 24-hour bagel shop on Route 23 to grab some snacks.

"Wait a second!" the judge interrupted, simultaneous to an objection by Schellhorn. After the sidebar, the judge told the jury of 14 women and two men -- four of whom will serve as alternates during deliberations -- to disregard the question because there was "no good faith basis" for the inquiry.

During direct questioning by Schellhorn, the woman said she drove her friend's car to the deli because she did not drink alcohol that night. The parking lot was full, she said, so she parked the unfamiliar vehicle at the front of the shop while her friends went inside. A man holding a broom and sweeping snow from the front of the shop then approached the car and directed her to move, she testified.

She said she believed he was a store employee since he was holding a broom, and he approached her car again, asking her to shut off the headlights so they didn't shine into a nearby home.  He again motioned her to move the car so she drove to the rear of the shop, believing the pavement wrapped around the store, but she realized it was a dark dead end, she said.

Moments later, she testified, she saw the same man approach he car with his pants down, his genitals exposed and wearing "a disgusting grin" on his face.  She said she panicked, tried to turn the car back on but couldn't and laid her cellphone on the passenger seat.  She said she had been speaking to her friend inside the shop, who called to ask if she wanted anything.

"He opened the door, and he shoved his whole body inside," she said. As she began to cry during her testimony, she said the man grabbed her hair and asked, "Have you ever seen anything so big?" She said she started to plead and he said "Shut up, shut up.  Just touch it."

She said he pulled her out of the car by her pants onto the ground and tore her underwear and molested her. She said she tried to talk to him "to calm him down," asking his name.  Later in her testimony, she said she remembered him identifying himself as Tony but she couldn't be positive.

She said the assault ended when she heard her friends calling her name.  The attacker fled, she said, and she sprang to her feet, pulling up her pants. She asked people in the store to call 911.

She testified that she was asked at the Prosecutor's Office to look at photographs of possible suspects and midway through the deck of pictures she identified one as the attacker.  The picture was of Pena.

"I told the detective 'I really don't even need you to keep going. That's him,'" but the detective said he had to show her all the photographs.

In court Thursday, she pointed to Pena and said she recognized him as the man who sexually assaulted her on Jan. 28, 2007.

Before the victim's testimony, Pena cross-examined Prosecutor's Office Sgt. Christopher Then about his attempts to recover video of the incident from the shop's video surveillance system, but Then said the video "was not recoverable."  Pena characterized the inability to retrieve video of the incident -- if any existed -- as "destruction of evidence," and the judge struck the remark.

In his opening statement Tuesday, Pena told jurors he is a victim of a wrong identification and must be found not guilty.  Schellhorn has presented evidence that Pena left fingerprints on the victim's car and boot prints by her vehicle, along with the woman's testimony that she recognizes him as the attacker.

By Thursday afternoon, a forensic scientist called by the state was testifying that she analyzed evidence in an effort to develop a DNA profile of the attacker but could not. Pena has insisted that no DNA evidence exists to link him to the assault.

Jurors have not been told, but Pena originally was tried for the sexual assault, found guilty and was sentenced in 2009 to nearly 28 years in prison. The Appellate Division of Superior Court reversed the conviction and ordered a new trial, finding that Pena was prejudiced because the first trial judge allowed the jury to hear too many details of a prior lewdness offense for which he was convicted.

The trial is expected to continue Monday in Morristown.

   Staff Writer Peggy Wright: 973-267-1142; pwright@GannettNJ.com.