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State v. Nunez

Decided: March 25, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERTO NUNEZ, DEFENDANT-APPELLANT



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

Morton I. Greenberg, J. H. Coleman and Long. The opinion of the court was delivered by Long, J.A.D.

Long

[209 NJSuper Page 129] After a jury trial for the stabbing death of Nelson Infanzon, Roberto Nunez was found guilty of aggravated manslaughter (N.J.S.A. 2C:11-4), possession of a knife for an unlawful purpose (N.J.S.A. 2C:39-4) and possession of a knife under circumstances not manifestly appropriate for such lawful uses as it may have (N.J.S.A. 2C:39-5(d)). After merging the weapons

counts, the trial judge, Judge Harrington, sentenced Nunez to a custodial term of 15 years with a seven year period of parole ineligibility on the aggravated manslaughter conviction and to a concurrent four year custodial term on the conviction for possession of a knife for an unlawful purpose. He also imposed an appropriate Violent Crime Compensation Board penalty. This appeal ensued in which Nunez claims, among other things, that:

Legal Issue # 1 -- The photographic identification procedure used under the totality of the circumstances as set forth during the "Wade Hearing" clearly showed that the identification procedure was so unduly prejudicial and impermissibly suggestive so as to taint the in court identification made of the appellant by Richard Perez, Jr. and therefore should have been excluded.

Legal Issue # 2 -- The trial court committed reversible error by charging the jury with murder under N.J.S. 2C:11-3.

Legal Issue # 3 -- It was reversible error for the lower court to give the accomplice theory charge to the jury in this case and alternatively, even if it was proper to instruct the jury on the accomplice theory, the charge as given was prejudicially defective and therefore, the appellant is entitled to a new trial.

Legal Issue # 4 -- The sentence imposed by the lower court was excessive and was an abuse of discretion because the appellant was not sentenced as a young adult offender under N.J.S. 2C:43-5 and also because a mandatory minimum parole ineligibility term was imposed.

Legal Issue # 5 -- The trial court committed reversible error by denying the defendant's request to require the co-defendant, Wilfredo Cuevas to invoke his privilege against self-incrimination in the presence of the jury.

Legal Issue # 6 -- The cumulative effect of all the trial errors and legal errors committed below mandates a new trial.

We have reviewed this record with care and have determined that these contentions are entirely without merit. R. 2:11-3(e)(2).

To be sure the identification procedure could have been more carefully formulated so as to eliminate the problem of suggestiveness inherent in a repeated single photo presentation. However, given the witness Perez's rather detailed description of Nunez shortly after the crime, and the certainty of his identification we are satisfied that the procedure did not result in the substantial likelihood of misidentification established as the ...


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