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State v. Catlow

Decided: December 10, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL CATLOW, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Hudson County.

Antell, Shebell and Muir. The opinion of the Court was delivered by Shebell, J.A.D.

Shebell

Appellant Michael Catlow was indicted on charges of kidnapping (N.J.S.A. 2C:13-1b(1)), aggravated sexual assault (N.J.S.A. 2C:14-2a) and robbery (N.J.S.A. 2C:15-1). He was tried to a jury and found guilty on all counts. The court imposed concurrent 20 year terms with eight years of parole ineligibility on each of the first-degree convictions. Defendant appeals, alleging:

POINT I -- THE FAILURE OF THE TRIAL COURT TO SUPPRESS THE TAINTED IDENTIFICATION TESTIMONY (IN-AND-OUT OF COURT) VIOLATED MICHAEL CATLOW'S DUE PROCESS RIGHT TO A RELIABLE CONVICTION, AS THE EVIDENCE ESTABLISHED THAT THE UNNECESSARILY SUGGESTIVE PROCEDURE PRODUCED IRREPARABLE MISIDENTIFICATION. (U.S. CONST. AMEND. XIV, N.J. CONST. ART. 1 PAR. 1).

A. The Identification Procedure Was Unnecessarily Suggestive And Conducive To Irreparable Misidentification.

B. The State Has Failed To Meet Its Burden Of Demonstrating The Absence Of Taint To The In-Court Identification.

POINT II -- THE CUMULATIVE UNDULY PREJUDICIAL AND IRRELEVANT TESTIMONY ADMITTED AT THE TRIAL BELOW DEPRIVED MICHAEL CATLOW OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (U.S. CONST. 14 AMEND., N.J. CONST. ART. 1, PAR. 1).

A. The Testimony Concerning The Death Of The Victim's Father Was Irrelevant And Unduly Prejudicial, Its Admission At Trial Is Reversible Error (Evid.R. 1(2), Evid.R. 4, Evid.R. 7).

B. The Introduction of Mr. McNeil's Hearsay Testimony That Michael Catlow Had Threatened Witnesses And Confessed To The Crimes Charged Is Reversible Error, As The Alleged Statements Did Not Demonstrate A Consciousness Of Guilt And Were Unduly Prejudicial (Evid.R. 8, Evid.R. 63, Evid.R. 63(10), Evid.R. 4).

C. The Evidence Of Other Crimes Introduced At Trial Denied Michael A. Catlow A Fair Trial. (Evid.R. 55).

POINT III -- AS THE GRAND JURY FAILED TO INDICT MICHAEL CATLOW FOR FIRST DEGREE ROBBERY, THE TRIAL COURT'S SUBMISSION OF SUCH CHARGE TO THE JURY IS REVERSIBLE ERROR. (N.J. CONSTITUTION ART. 1, PAR. 8).

POINT IV -- MICHAEL CATLOW WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON THE KIDNAPPING COUNT.

POINT V -- THE TRIAL COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY DENIED MICHAEL CATLOW HIS RIGHT TO A FAIR TRIAL (PARTIALLY RAISED BELOW).

A. The Failure To Charge The Lesser Included Offense Of Criminal Restraint.

B. The Erroneous First Degree Robbery Charge.

C. The Inadequate "Substantial Distance" ...


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