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State v. Acker

Decided: June 25, 1993.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NORMAN ACKER, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Passaic County.

J.h. Coleman, Shebell and Conley.

Per Curiam

The key issue raised in this appeal is whether the prosecutor's summation was so egregious as to require a new trial. We hold that it was.

Defendant was found guilty by a jury on two counts of second-degree sexual assault upon two females who were less than 13 years old, contrary to N.J.S.A. 2C:14-2b, (Counts One and Three); and two counts of fourth-degree endangering the welfare of the same two children, contrary to N.J.S.A. 2C:24-4a, (Counts Two and Four). The trial Judge merged Count Two with Count One and sentenced defendant to a custodial term of five years. He also merged Count Four with Count Three and sentenced defendant to a concurrent custodial term of five years. The sentence was stayed pending appeal.

Defendant has raised the following issues in this appeal:

I THE PROSECUTOR EXCEEDED ALL BOUNDS OF PROPRIETY IN HIS OPENING AND CLOSING STATEMENTS AND DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL (PARTIALLY RAISED BELOW).

II THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY PERMITTING TESTIMONY FROM THREE WITNESSES UNDER THE "FRESH COMPLAINT" HEARSAY EXCEPTION WHICH INCULPATED

THE DEFENDANT; DEFENDANT'S SIXTH AMENDMENT CONFRONTATION RIGHTS WERE VIOLATED ALONG WITH HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL.

III THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE FAILURE OF THE STATE TO PROVIDE DISCOVERY AND BY THE TRIAL JUDGE REFUSING TO GRANT A CONTINUANCE.

IV THE PROSECUTOR WAS IMPROPERLY ALLOWED TO COMMENT ON THE FAILURE OF THE DEFENDANT TO HAVE AN ALIBI.

V THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SEVER COUNTS 1 AND 2 FROM COUNTS 3 AND 4.

VI THE TRIAL JUDGE ERRED IN REFUSING TO GRANT A JUDGMENT OF ACQUITTAL IN FAVOR OF DEFENDANT AS TO COUNTS 1 AND 3; THE STATE FAILED TO ESTABLISH DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND STATE CONSTITUTION.

VII THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN THE JURY CHARGE WHICH DEPRIVED DEFENDANT OF HIS FOURTEENTH AMENDMENT ...


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