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State v. Rush

Decided: December 8, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DALE STEPHEN RUSH, DEFENDANT-APPELLANT.



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

Before Judges Long, A. M. Stein and Levy.

Long

The opinion of the court was delivered by LONG, J.A.D.

After a night of drinking, defendant Dale Stephen Rush sneaked into the house where the victim was sleeping and touched the skin of her buttocks and vagina. He was convicted of fourth degree criminal sexual contact (N.J.S.A. 2C:14-3b; 2C:14-2c(2)) and fourth degree criminal trespass (N.J.S.A. 2C:18-3a). He was sentenced to concurrent eighteen-month terms with a nine-month period of parole ineligibility to be served consecutively to the sentence he was already serving. An appropriate Violent Crimes Compensation Board penalty was also imposed.

Defendant appeals, contending that the following trial errors warrant reversal:

POINT I:

ADMISSION OF PRIOR CONVICTIONS FOR SIMILAR OFFENSES BY TRIAL COURT WAS UNDULY PREJUDICIAL SO AS TO AMOUNT TO REVERSIBLE ERROR.

A. The Court Improperly Allowed The Introduction By The State Of Prior Convictions For Similar Offenses.

B. By Preserving The Issue For Appellate Review In The Lower Court, The Defendant Is Entitled To The Benefit Of Brunson.

POINT II:

THE TRIAL COURT ERRED IN ITS JURY INSTRUCTION BY ALLOWING THE JURY TO DETERMINE WHETHER A PERSON'S BEING ASLEEP FALLS WITHIN THE REALM OF WHAT IS CONSIDERED "PHYSICALLY HELPLESS" AS DEFINED BY N.J.S.A. 2C:14-2c(2).

A. Whether A Person Is "Physically Helpless" Is A Question Of Law For The Court, And Not A Question ...


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