Carpenter again guilty of raping woman at Butler bagel shop

For a second time, a Morris County jury has found a carpenter from Vernon guilty of dragging a young woman out of a vehicle at all-night bagel shop in Butler in 2007 and sexually assaulting her on the snow-covered ground.

Though he had railed at times about what he considered an unfair trial at which he represented himself -- at his own insistence -- defendant Andrew Pena, 48, was uncharacteristically quiet and sat with his head slightly bowed and his hands clasped in front of him on Tuesday as the jury forewoman in Morristown read the verdict.

She pronounced Pena guilty of aggravated sexual assault, sexual assault, criminal sexual contact and burglary, for illegally entering the victim's vehicle to yank her out around 3:30 a.m. on Jan. 28, 2007.

Pena previously was convicted of the same charges after a trial in 2009 and was sentenced in December 2009 to 27 years and nine months in prison.  A state appellate court panel reversed the conviction and ordered a new trial, finding that Pena was prejudiced by the original trial judge, allowing jurors to hear too many details of a prior, unrelated  lewdness offense.

The jury of 10 women and two men deliberated about three hours between Monday and Tuesday and asked to rehear the direct testimony of the victim, who was 19 years old when she was attacked in a friend's vehicle at the rear of G&A Bagel shop on Route 23.

The victim swiped away tears but was quiet and composed at the verdict, where she was accompanied by her mother, a friend and members of the Morris County Prosecutor's Office victim/witness unit.

State Superior Court Judge Stephen Taylor set sentencing for Dec. 4.  Pena cannot be sentenced to more time than he received after the first trial in 2009 and will get credit for nearly nine years he has been in custody. After his conviction was reversed, he insisted on representing himself,  though he was appointed a standby counsel for trial -- attorney Elizabeth Martin, who cross-examined the victim using questions dictated by Pena.

"I'm not an attorney.  I swing a hammer for a living, but no one knows this case better than I do," Pena had declared at a hearing last year at which a judge ruled he could represent himself at his second trial.

The retrial started with opening statements on Oct. 27, and in recent weeks Pena  had been complaining to the judge that his trial was unfair and that he wasn't allowed to hire certain expert witnesses. On Tuesday morning, he asked the judge to declare a mistrial, saying his view in the courtroom was blocked so that he couldn't see juror numbers being selected from a box during the process of choosing alternate jurors.

Pena claimed that four jurors he believes agreed he was innocent were culled from deliberating by being picked as alternates.

"That's pure conjecture," Taylor responded, saying that no one could know what the jury was thinking as it listened to the trial.  If jurors nodded their heads in response to Pena's comments, the judge said, they were probably being "polite."

Assistant    Morris County Prosecutor Christopher Schellhorn had called witnesses who testified that Pena's fingerprints were found on the car driven by the victim and that boot prints matching distinctive-patterned ones recovered from his home were found by the vehicle. A truck similar to Pena's, along with a license plate that was very similar to his plate, was spotted as it pulled out of the G&A Bagel parking lot after the assault.

The victim  had chosen Pena's photograph out of a six-picture array of possible suspects. and she positively identified him in court at trial as her assailant.  Pena's fingerprints were on file because he had a prior conviction for lewdness. Though Pena didn't testify, some statements he gave police were told to the jury.  He claimed he only patronized Home Depot and a coffee shop in Butler and that he never stayed out all night because "my wife would kill me."

The victim told jurors that she drove her friend's car to G&A Bagels while accompanied by two friends, and she remained in the car while they went inside.  A man sweeping snow from the front of the shop told her to move the car, directed her to turn off the headlights so they didn't shine into a nearby house, and then further told her to move the car around the back of the building.  She said she complied because she believed he was an employee and that she was blocking  vehicles in the crowded lot.

She said she thought she could circle the building from the rear but found herself in a dark alley.  The man she later identified as Pena approached her car with his genitals exposed, grasped her hair and yanked her out of the car, pulling off her pants and ripping her underwear in the process.  She testified he forced her to touch his genitals and molested her before running off when he heard voices.

Pena had argued that his genitals are much smaller than the "ruler-length" organ estimated by the victim and he voraciously questioned why the friend she had been speaking to on her cellphone in the seconds before the assault never heard a commotion.

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