NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant William Quinonez appeals his conviction for first-degree kidnapping under N.J.S.A. 2C:13-1(b)(2), as well as the resulting sentence of twenty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We reverse.

I.

We discern the following facts and procedural history from the record on appeal, including the testimony at the trial.

Rita Gutierrez testified that, on May 22, 2007, she was babysitting Ida, her four-year old granddaughter, while the child's mother was at work.1 Rita took Ida to the park and then shopping along Elizabeth Avenue in Elizabeth. While they were shopping, Rita saw her other daughter Sandra Gutierrez, Quinonez, and another woman in front of a bakery. Sandra was holding one-year old Jill, Sandra and Quinonez's daughter. Rita noticed that Sandra and Quinonez, who had ended their relationship six months earlier, were arguing.

At that point, Ida asked Rita for some of the candy they had just purchased. As Rita let go of Ida's hand to unwrap the lollipop, they continued walking. When Rita told Ida to hold her hand again, she realized Ida was gone. Rita looked in several businesses and asked whether anyone had seen the child. She then went into Amigo Chicken Restaurant (Amigo Chicken) and asked someone to call the police.

When the police arrived, Rita described the child to a police officer who spoke Spanish. About a half-hour later, Rita's other daughter, Elsa Solorzano, who was Ida's mother, arrived at Amigo Chicken in tears. She told Rita that Quinonez had Ida.

According to Elsa, Rita watched Ida three times a week. On May 22, she arrived at her mother's house at approximately 6:45 p.m. to pick up Ida. She did not find anyone at home, but testified that this was not unusual. While Elsa was waiting, Sandra arrived home. A few minutes later, Sandra's cellphone "chirped" and she answered it. After listening briefly, Sandra told Elsa that Quinonez, who was on the phone, had Ida. Elsa took the phone and told Quinonez that she wanted her daughter returned. According to Elsa, Quinonez said he would not return Ida, that she would never see her again, and that he was far away.

Elsa told Quinonez that she was calling the police, to which Quinonez replied he did not care. When Elsa called 9-1-1 and described Ida, the dispatcher told her that the police were already aware that Ida was missing. The dispatcher directed Elsa to the area on Elizabeth Street where the police were with Rita.

Lisa Lopez testified that she had known Quinonez for four or five years. On the evening of May 22, she was driving on Marshall Street when she saw Quinonez with a little girl. She stopped to ask whether Quinonez had seen someone she knew. He replied that he had not, and then asked for a ride. He got in the front seat of her car, and had Ida stand between his legs.

Quinonez made several phone calls while driving with Lopez. She heard him mention the name Jessica, and also ask about tickets to go to North Carolina. Quinonez asked Lopez to stop at his house. He went into the house and returned with $10 to pay for gas. She then drove to Chilton Towers, where Quinonez and Ida got out. According to Lopez, Ida cried the entire time they were in the car, which was about thirty minutes.

As Lopez drove home on Elizabeth Avenue, she saw the police and heard a lady screaming about a little girl. She stopped her car, and told a police officer where she had just dropped Quinonez and Ida.

Elizabeth Police Officer Yoan Belon responded to the call about the missing child on Elizabeth Avenue. Belon spoke to Rita in Spanish, and relayed Ida's description to headquarters. After learning that Ida was with Quinonez, he went to Quinonez's residence, but did not find either Quinonez or Ida there.

Belon then went to the Gutierrez residence on Elizabeth Avenue, where he spoke with Sandra. Belon instructed Sandra to use her cellphone to call Quinonez, and to keep trying to reach him until she got through. After ten to fifteen calls, at approximately 8:30 p.m., she succeeded in contacting Quinonez. Belon spoke to Quinonez for about twenty minutes. Quinonez told Belon that he was at Chilton Towers, but would not give an exact location. He told Belon to go to the apartment building and call when he arrived. Quinonez said that he would release Ida to him. Just before heading to Chilton Towers, however, Belon learned that Quinonez and Ida had been found by other police officers.

Elizabeth Police Officer Sergio Alexandre was dispatched to Chilton Towers. He was told that Quinonez might be in an apartment on the fourteenth floor. An occupant of the apartment told Alexandre that Quinonez had been there and requested help to go somewhere. She had refused because she did not want to get involved.

Alexandre and another police officer conducted a floor by floor search. Shortly after 10:00 p.m., they found Quinonez in a basement corridor. He was sitting on the floor with his back to the wall, with Ida on his lap. Alexandre carried Ida out of the building while the other officer arrested Quinonez.

According to Elsa, Ida appeared more "needy" for a couple of months after the incident, did not want to be alone, and held hands when outside on the street. Elsa testified that when Quinonez and her sister were still together, Ida never exhibited a problem in his company. Rita had testified that Ida was familiar with Quinonez because he had participated in family events before he and Sandra broke off their relationship.

In a superseding indictment returned on May 29, 2008, Quinonez was charged with kidnapping with the purpose of causing bodily harm to or terrorizing Ida, Elsa, Rita, and/or Sandra, contrary to N.J.S.A. 2C:13-1(b)(2). At trial, the State presented the witnesses described above.

Sandra was a witness for the defense. She testified that Quinonez came to her house on May 22 and picked up their daughter Jill. Sandra then went out with a friend. While walking on Elizabeth Avenue, she saw Quinonez and a woman sitting on a bench with Jill. After she walked past Quinonez, he began to follow her. He apologized for an argument they had the previous day. However, they began to argue again. When Quinonez walked away, Sandra decided to cancel the remainder of his parenting time with Jill. She walked back and told Quinonez, who argued that he had not had his daughter long enough. Sandra took the baby and returned home.

Jessica Gonzalez, Quinonez's sister, testified that she was on Elizabeth Avenue when Sandra and Quinonez argued about Jill. Shortly after Quinonez left, he telephoned her and asked how he could get to North Carolina. He also asked her to return Ida to her family. She arranged to meet him at Chilton Towers, where she lived. By the time she arrived at the building, however, it was surrounded by police.

Sandra Inglefield, Gonzalez's aunt, testified that Quinonez rang her doorbell at Chilton Towers and asked to speak to her. He had a little girl with him, whom he identified as his niece. When she and Quinonez went into a room to talk, he kept speaking on his telephone. At that point, Inglefield told Quinonez to leave.

According to Inglefield, Quinonez asked several times if he could leave Ida with her, but she refused. She also testified that Quinonez told her that he took the child from her grandmother. He told her that he was going to take her home. The police arrived at her apartment about an hour after Quinonez left.

Quinonez testified on his own behalf. He began his testimony by acknowledging that he had been convicted of burglary. On May 22, 2007, he was scheduled to have parenting time with his daughter Jill. He picked her up at Sandra's house in the late afternoon. From there, he went to meet his sister and her boyfriend in front of Amigo Chicken on Elizabeth Avenue.

When Sandra walked by, he followed her and tried to talk with her. After a few blocks, Sandra stopped and began to argue with him. He walked away. Sandra walked over to him and told him that he could not see Jill any more that day. She took Jill and left when a friend arrived to pick her up. He testified that he was nervous, mad, and upset after Sandra took Jill away from him.

Quinonez walked with his sister to Amigo Chicken, and was planning to go to Sandra's house. He then saw Ida alone on the street. He saw her grandmother in a pizza store. He called to Ida. When she came, he picked her up and walked away.

On Marshall Street, Quinonez called Sandra's cellphone number and said that he had Ida, who was crying. He said something like "give me my daughter and I will give you Ida," believing that he was talking to Sandra. A woman said, "No, I'm calling the police." He was confused and said: "Don't call the police." He told her that he was "just playing."

When Lopez drove by Quinonez asked for a ride. She agreed, but said that she needed some money for gas. They drove to Quinonez's house, where he got money and a camera to amuse Ida. He spoke to his sister to ask where he could get tickets to North Carolina. He intended to return Ida before he left, and arranged to meet his sister at the Chilton Towers.

At the apartment building, Quinonez went to the Inglefield residence. He told Inglefield that Ida was his niece, and asked whether he could leave the child with her. Inglefield said no, because she did not want any problems. When she told him to leave, he did.

Quinonez called Gonzalez, who told him that the police had the building surrounded. He went to the basement and called a friend to come pick him up. He received a call back that the police would not let anyone in the building. Quinonez spoke to a police officer for a while, but the phone connection kept breaking off. During this period of time, Quinonez testified that Ida was upset and that he reassured her that he would take her home.

Quinonez denied intending to scare Ida or her family. He testified that he wanted to make Sandra feel how he felt when she took their daughter away. After his arrest, he wrote to Elsa to apologize and asked her to drop the charges. He wrote that he did not know that she was on the phone when he tried to contact Sandra.

The State called two rebuttal witnesses. Elizabeth Police Officer Carmine Giannetta, who had interviewed Inglefield, testified that she never told him during the interview that Quinonez asked to leave Ida with her. Detective Joe Vendas, who had interviewed Gonzalez, testified that she told him, shortly before his argument with Sandra, that Quinonez had asked her to take care of Jill for the rest of the afternoon because he had "some things that he needed to do."

During the charge conference, defense counsel asked the trial judge to charge criminal restraint, N.J.S.A. 2C:13-2, as a lesser-included offense. When the judge asked the factual basis for giving that charge, defense counsel pointed to the fact that Quinonez held Ida between his legs in the front seat of Lopez's car while they drove around Elizabeth. The judge refused to give the requested charge, finding that an insufficient factual basis for the offense of criminal restraint.

The jury found Quinonez guilty of kidnapping. The jury's responses to questions on the verdict sheet reflect that it determined that Quinonez had the purpose to terrorize Elsa and Sandra, but not Ida or Rita.2 It also determined that Quinonez did not "knowingly harm" Ida.

This appeal followed.

II.

Quinonez raises the following issues on appeal:

We turn first to the issue of the jury charge. Quinonez argues that the trial judge erred in refusing to charge the lesser-included offense of criminal restraint, N.J.S.A. 2C:132-(a), as requested. He also argues, for the first time, that the judge should have charged terroristic threats, N.J.S.A. 2C:12-3, as a lesser-included offense on his own.

In State v. Goodman, 415 N.J.Super. 210, 235-36 (App. Div. 2010), certif. denied, ___ N.J. ___ (2011), we addressed a trial judge's obligations with respect to jury charges concerning a lesser-included offense, as follows:

See also State v. Savage, 172 N.J. 374, 396-98 (2002) ("In order to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense.").

When such a charge is requested, the issue before the trial judge "centers on the existence of evidence to support the lesser-included offense, and not on its worth." State v. Samuels, 189 N.J. 236, 251 (2007). If there is evidence in the trial that, if believed by the jury, would support a conviction for the lesser-included offense, it is error not to give the charge. Id. at 252.

Pursuant to N.J.S.A. 2C:13-2(a), "[a] person commits a crime of the third degree if he knowingly: a. Restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury." Criminal restraint is a lesser-included offense of kidnapping. Savage, supra, 172 N.J. at 398.

There is no question that Ida was restrained. We disagree with the trial judge's conclusion that driving with a young child without a seatbelt in the front seat of a car does not expose the child to the risk of serious bodily injury. At the time Quinonez was holding Ida in the front seat of Lopez's car, she was four years old. Under applicable New Jersey law, she should have been in the back seat and in an approved child-safety seat. N.J.S.A. 39:3-76.2(a). Had the car made a sudden stop or been involved in an accident, Ida would have been at a significant risk of being catapulted through the vehicle's front window. A jury could conclude that Quinonez had the requisite knowledge that requiring Ida to stand, without a seatbelt or car seat, in the front of the car exposed her to the risk of serious bodily injury. See State v. Worthy, 329 N.J.Super. 109, 117-18 (App. Div. 2000) (holding that the defendant must "knowingly" expose the victim to a risk of serious bodily injury).

Our conclusion that the facts before the jury could support a verdict of guilty on a charge of criminal restraint does not end the inquiry, however. We must determine whether there is a "rational basis" for the jury to have acquitted Quinonez of kidnapping while convicting him of criminal restraint. Savage, supra, 172 N.J. at 396; Goodman, supra, 415 N.J. Super. at 235-36.

The elements of kidnapping applicable to this case are as follows:

Quinonez admitted that he took Ida from Elizabeth Avenue, drove around with her in Lopez's car, and then took her to Chilton Towers. He claimed that he did so because he wanted Sandra to feel what he felt when she took Jill away from him, but denied that he wanted to "scare" Sandra or Elsa. In essence, he admitted that he removed Ida "a substantial distance from the vicinity where [s]he [was] found." The issue is whether the jury could have acquitted him of doing so with the "purpose" "[t]o inflict bodily injury on or to terrorize the victim or another."

We know that the jury found that Quinonez did not act with the purpose to harm or terrorize Ida or Rita. There were no allegations of intent to inflict bodily injury on Elsa or Sandra. Although Quinonez denied that he intended to "scare" Elsa and Sandra, he testified that his "intent was to make my baby['s] mom [Sandra] feel what I was feeling that day that she took . . . my daughter away from me."

If the jury credited Quinonez's testimony, it could have acquitted him of kidnapping because he did not have the "purpose" to "terrorize," and convicted him of criminal restraint because he "knowingly restrained" Ida in "circumstances" exposing her to "risk of serious bodily injury." N.J.S.A. 2C:13-2(a).

While the jury did convict on the basis of a purpose to terrorize, it did so under circumstances in which its only other option was a complete acquittal. We cannot say on the present record that, given a choice, the jury would not have opted for criminal restraint over kidnapping, especially had the case been tried without the inflammatory portions of the prosecutor's summation which the State concedes on appeal were improper.

The difference in sentencing between the two offenses is quite significant. The sentencing range for N.J.S.A. 2C:131-(b)(2) is incarceration for fifteen to thirty years, whereas the sentencing range for N.J.S.A. 2C:13-2(a), assuming a custodial sentence, is between three and five years. N.J.S.A. 2C:13-1(c); N.J.S.A. 2C:43-6(3). Consequently, we reverse and remand for a new trial, at which the trial judge shall charge criminal restraint as a lesser-included offense.

We comment briefly on two remaining issues. We do not view terroristic threats, N.J.S.A. 2C:12-3(a), as a lesser-included offense of kidnapping under the circumstances of this case. There was substantial evidence that Quinonez's conduct satisfied the removal/confinement element of kidnapping. Removal or confinement is not an element of terroristic threats. The real issue before the jury was whether he had the purpose to terrorize. On the present record, we see no rational basis for a jury to acquit Quinonez of kidnapping but convict him of making terroristic threats, given the fact that he had essentially admitted the remaining elements of kidnapping.

Second, as indicated above, we agree with both the State and Quinonez that the prosecutor made inappropriate remarks during summation. They must not be repeated at the retrial. Given our reversal of the conviction, we need not reach the issue of the sentence.

Reversed and remanded for a new trial.