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State v. Kelly

May 17, 1977

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERRY KELLY, DEFENDANT-APPELLANT.



Milmed

The majority opinion was delivered by

MILMED, J.A.D. Defendant appeals from his conviction and sentence for lewdness (N.J.S.A. 2A:115-1) and from the denial of his motion for a judgment of acquittal or in the alternative for a new trial.*fn1 His contentions as set forth in the brief submitted on his behalf are:

POINT I - Failure to limit count four (4) of the indictment to the specific offense alleged therein was reversible error.

POINT II - As there was insufficient proof to convict under N.J.S. 2A:115-1, count four of the indictment should have been dismissed at the close of the State's case.

POINT III - Prosecutorial abuse in the summation to the jury was prejudicial error which warrants reversal.

POINT IV - Prosecution of defendant under N.J.S. 2A:115-1 was an unconstitutional invasion of privacy.

POINT V - The testimony admitted under the fresh complaint rule was excessive and prejudicial.

We have considered each of these contentions in our review of the record submitted on this appeal. We find that each of the issues raised by defendant is clearly without merit. R. 2:11-3(e)(2). His motion for a judgment of acquittal, or in the alternative a new trial, on the fourth count of the indictment was properly denied. From our review of the record on this appeal, we are satisfied that a manifest denial of justice under the law does not "clearly and convincingly" appear. R. 3:20-1; State v. Sims, 65 N.J. 359, 373-374 (1974); Dolson v. Anastasia, 55 N.J. 2, 5-7 (1969). See R. 2:10-1. Beyond this, we note that the record supports the trial judge's assessment that "the facts adduced by the State certainly would permit this jury to conclude, as they did, that the defendant was guilty of lewdness, * * *."

The conviction and sentence on the fourth count of the indictment are affirmed. The matter is remanded to the trial judge for correction of the judgment of conviction in accordance with our footnote "1" herein.

ANTELL, J.A.D. (dissenting). I disagree that defendant's claim of error in the trial judge's application of the fresh complaint rule "is clearly without merit." To understand my reasons, however, it is necessary to examine the record, irritant though it may be.

The infant victim's mother was evidently defendant's paramour. They and her children occasionally resided together, and it was during these assignations that the events allegedly occurred upon which the charges of lewdness and contributing to the delinquency of a minor were based. The witness to whom the child was said to have first complained about defendant's misconduct was the child's maternal grandmother, Mrs. Baker, who made no attempt to conceal her animosity toward the defendant. The following questions and answers, having to do with the child's complaint, form the basis of defendant's grievance:

THE COURT: You may proceed

BY MR. FORMAN:

Q Now, Mrs. Baker, I am going to ask you a very limited question, and I wish you would respond in that fashion. In reference to the complaint that you filed, what did Kimberly tell you happened to her?

A Kimberly came up and told me that she was afraid to tell anybody, that she was afraid to tell her mother, and she told me that Jerry got in bed with her and put his private right near her backside.

Q Did she tell you anything else?

A She told me that every time she went to the bathroom that he would walk in there, he threw ice cold water on her back, and he -

MR. ECKEL: I object, Your Honor -

THE WITNESS: And he put his fingers up her ...


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