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State v. Ruscingno

Decided: May 8, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EMIL RUSCINGNO, DEFENDANT-APPELLANT



On Appeal from Superior Court, Law Division, Essex County.

Morton I. Greenberg and Gruccio. The opinion of the court was delivered by: Gruccio, J.A.D.

Gruccio

Following a jury trial, defendant Emil Ruscingno was convicted of murder, N.J.S.A. 2C:11-3 a(1) and (2) (count one); 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 (count two), and possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4 d (count three). He was sentenced to a life term with a 30-year period of parole ineligibility on count one and an 18-month term on count two to run consecutively with the sentence imposed on count one. Count three was merged with count one for sentencing. The trial court also imposed a $10,000 Violent Crimes Compensation Board penalty on count one and a $25 penalty on count two.

On appeal Defendant contends:

1. The statement made by defendant to police should have been excluded from evidence.

2. The testimony of Detective Murray regarding defendant's post-arrest silence violated the Fifth Amendment right against self-incrimination. (Not raised below).

3. It was error for the court to admit into evidence certified copies of prior convictions of a witness.

4. Comments made by the prosecutor during summation were improper and inflammatory and deprived defendant of a fair trial. (Not raised below).

5. It was plain error for the court to fail to charge the jury on the lesser-included offense of manslaughter [and aggravated manslaughter]. (Not raised below).

6. It was error for the court to fail to merge certain offenses.

We have carefully reviewed the record in light of the contentions and the arguments of counsel thereon and, except as to defendant's second and fifth points, find them clearly without merit. R. 2:11-3(e)(2).

Under point two, defendant contends that the testimony of Detective Murray regarding his post-arrest silence violated his Fifth Amendment privilege against self-incrimination. It is a well-established principle of criminal procedure that the State may not use defendant's post-arrest silence to establish guilt. Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); accord, State v. Deatore, 70 N.J. 100 (1976); State v. Lyle, 73 N.J. 403 (1977). There is no published New Jersey decision dealing with the admissibility of police testimony which indicates that defendant refused to answer further questions at a certain point during interrogation. However, federal courts have held that when a defendant chooses to waive his right to silence, police are entitled to testify concerning any incriminating statements that defendant made and describe not only the beginning of the interrogation but how it ended as well so that the jury will know the police testimony is complete. See Rowan v. Owens, 752 F.2d 1186, 1190 (7th Cir.1984), cert. den. U.S. , 106 S. Ct. 2245, 90 L. Ed. 2d 691 (1986); ...


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