Pena is representing himself in his sexual assault trial
MORRISTOWN -- An emotional Andrew Pena, accused of a 2007 sexual assault of a 19-year-old woman outside a Butler bagel shop, told a jury on Tuesday that he was the victim of a false identification and urged the panel to find him not guilty.
Pena, 47, of Vernon, is representing himself in his trial, with assistance from public defender Elizbeth Martin. Pena and Morris County Assistant Prosecutor Christopher Schellhorn made their opening statements to the jury on Tuesday as Pena went to trial for a second time in the case. Pena faces charges including aggravated sexual assault, sexual assault, criminal sexual contact and burglary.
Pena was found guilty following a jury trial in 2009 and sentenced to nearly 28 years in prison. But a state appeals court reversed his convictions and ordered a new trial, saying the trial judge erred when he allowed the jury to hear too many details of a prior sex offense he had committed.
Pena told the jury, "There are people in prison all over the country for wrongful identification" and "There are men and women waiting to be executed for a wrongful ID."
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That drew a rebuke from Superior Court Judge Stephen Taylor in Morristown, who ordered Pena to discuss only the evidence in his own case.
After Pena referred to people imprisoned all over the country four times in his opening statement, Taylor said he would find him in contempt if he did that again.
"I expect you to follow the court's directions," Taylor said. "I can see doing it the first time. But the fourth time, it's intentional. Don't do it again."
Outlining the state's case against Pena, Schellhorn said the alleged victim, a Randolph resident, was visiting with friends in the Butler area during the late evening on Jan. 28, 2007 and they decided to go out for food at G&A Bagels on Route 23, which was open late.
The alleged victim, who drove, was sitting in the car alone at 3:15 a.m. while her friends went inside and she eventually "found herself alone at the end of a dark alley," where Pena sexually assaulted her in the snow, Schellhorn said.
Pena approached her with a broom, said he needed to remove snow that was falling, and asked the young woman to move the car, Schellhorn said. He directed her to a side driveway that was "actually a dead-end alley," Schlhellhorn told the jury.
The next time she saw Pena, Schellhorn said, "he had his pants down and was smiling" and whispering in her ear as he held her down.
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"He told her to leave the car, showed his penis, pushed her into the snow and forced her to have sex with him," Schellhorn said.
Pena's fingerprints were found on the driver's side window, Schellhorn said.
In his opening statement, Pena acknowledged he was at the bagel shop that night, but said the assailant was someone else. Pena also said his "member" was not as big as the alleged victim's description.
The dispatcher, Pena said, also reported the alleged victim said her attacker was black, and Pena said he is not black.
Pena acknowledged his fingerprints were traced on the alleged victim's car, but added, "You will not link me to any DNA evidence."
Pena accused prosecutors of "deliberately holding onto DNA evidence that will exonerate me."
"Where I encountered that car is nowhere near where that assault occurred," he said. "Nothing here links me to that crime other than closing the door."
The jury includes 14 women and just two men, and Pena said that reflected a deliberate strategy on his part.
"There is no one better than a woman to assess another woman's allegations," Pena told the jury.
Ben Horowitz may be reached at bhorowitz@njadvancemedia.com. Follow him on Twitter @HorowitzBen. Find NJ.com on Facebook.