On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Before Judges Long, Stern and Kleiner.
The opinion of the court was delivered by: Kleiner, J.A.D.
Submitted December 16, 1997
On February 2, 1995, defendant, Jose Paduani, and his brother, Richard Paduani, were charged with: aggravated assault against Josue Rodriguez, contrary to N.J.S.A. 2C:12-1b(2), a third-degree crime (count one); possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a, a second-degree crime (count two); aggravated assault against Victor Diaz, contrary to N.J.S.A. 2C:12-1b(2), a third-degree crime (count three); possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a, a second-degree crime (count four); and unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b, a third-degree crime (count five).
In a joint trial, each defendant was found not guilty on both counts one and three charging aggravated assault; however, each defendant was found guilty on both counts one and three of the lesser-included offense of pointing a firearm, in violation of N.J.S.A. 2C:12-1b(4), a fourth-degree crime. On counts two and four, each defendant was found not guilty of possession of a weapon for an unlawful purpose to use it unlawfully against the property of the alleged victims but found guilty of possession of a weapon with a purpose to use it unlawfully against the person of each victim. Each defendant was also acquitted on count five charging unlawful possession of a weapon. *fn1
At sentencing, the trial Judge merged defendant's pointing a firearm convictions into the convictions for possession of a weapon for an unlawful purpose and then sentenced defendant to a custodial term of ten years with a five-year period of parole ineligibility. The sentences on counts two and four were to be served concurrently with each other. Appropriate statutory penalties payable to the Violent Crimes Compensation Board were also imposed.
On appeal, defendant raises seven points of error:
THE TRIAL COURT COMMITTED PLAIN ERROR AND COMPROMISED DEFENDANT'S RIGHT TO FULL APPELLATE REVIEW BY PRESIDING OVER A TRIAL WHICH DID NOT TRANSCRIBE SIDEBAR CONFERENCES (NOT RAISED BELOW)
OFF THE RECORD SIDEBAR CONFERENCES WHICH ARE NOT THE SUBJECT OF ANY SUBSEQUENT STATEMENT'S [sic] OR CLARIFICATIONS BY THE COURT.
OFF THE RECORD SIDEBAR DISCUSSIONS WHICH WERE FOLLOWED BY ATTEMPTED CLARIFICATIONS AND SUPPLEMENTAL STATEMENTS.
SINCE THE OMITTED PORTIONS OF THE RECORD, WHETHER SUPPLEMENTED OR NOT, RELATE TO ISSUES RAISED ON APPEAL, THE COURT'S PROCEDURE DURING TRIAL NOT TO RECORD SIDEBAR CONFERENCES REQUIRES REVERSAL OF DEFENDANT'S CONVICTION AS PLAIN ERROR. (NOT RAISED BELOW)
ADMISSION OF EVIDENCE OF DEFENDANT'S ALIAS WAS IMPROPER AND SO PREJUDICIALLY UNFAIR AS TO HAVE DEPRIVED DEFENDANT OF A FAIR TRIAL.
EVIDENCE OF DEFENDANT'S ALIAS WAS NOT MATERIAL TO PROOF OF ANY OF THE CHARGED CRIMES.
EVEN IF MATERIAL AND RELEVANT, THE PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY PREJUDICE AND DEFENDANT'S ALIAS SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403.
ADMISSION OF THE NOVEMBER 16, 1994 STATEMENT OF VICTOR DIAZ AND JOSE RODRIGUEZ AS PRIOR INCONSISTENT STATEMENTS WAS REVERSIBLE ERROR.
THE COURT ERRED IN ADMITTING VICTOR DIAZ'S STATEMENT AS A PRIOR INCONSISTENT STATEMENT BECAUSE DIAZ'S TRIAL TESTIMONY WAS "INCONSISTENT" WITH THE STATEMENT.
THE COURT ERRED IN ADMITTING THE STATEMENT OF JOSUE RODRIGUEZ AS A PRIOR INCONSISTENT STATEMENT BECAUSE THE STATE FAILED TO ESTABLISH THE "RELIABILITY" OF THE STATEMENT BY A PREPONDERANCE OF THE EVIDENCE.
DEFENDANT'S ABILITY TO ENGENDER A REASONABLE DOUBT WAS UNDULY RESTRICTED BY THE TRIAL COURT. (NOT RAISED BELOW)
THE COURT ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.
THE PROSECUTOR'S SUMMATION SUBSTANTIALLY PREJUDICED DEFENDANT'S RIGHT TO HAVE THE JURY FAIRLY EVALUATE THE EVIDENCE. (RAISED IN PART BELOW)
THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF THE POLICE. (RAISED BELOW)
THE PROSECUTOR MISLED THE JURY IN URGING AN UNSUPPORTABLE CONSIDERATION OF THE PRIOR INCONSISTENT STATEMENTS ADMITTED ...