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State v. Clark

June 14, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT F. CLARK, DEFENDANT-APPELLANT.



Before Judges Stern, Landau and Braithwaite.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 28, 1999

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

Following a jury trial, defendant was convicted of two counts of sexual assault, N.J.S.A. 2C:14-2b, and two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a. Believing that consecutive sentences were "mandated by our legislature," the trial Judge imposed consecutive ten-year custodial terms with a five-year parole bar on each sexual assault conviction and concurrent four-year custodial terms on the endangering convictions.

Defendant now appeals and his counsel contends:

"POINT I"

"THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY PREJUDICIAL CHARACTER EVIDENCE. (Not Raised Below)."

"POINT II"

"THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY IN A MULTI-COUNT INDICTMENT THAT IT MAY NOT CONSIDER EVIDENCE PROFFERED ON ONE ALLEGED CRIMINAL EPISODE TO PROVE THAT THE DEFENDANT WAS CRIMINALLY DISPOSED TO COMMIT ADDITIONAL CRIMES INVOLVING A DIFFERENT VICTIM AT A DIFFERENT TIME IN ANOTHER ALLEGED CRIMINAL EPISODE VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below)."

"POINT III"

"THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF HEARSAY EVIDENCE."

"POINT IV"

"THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF ORAL STATEMENTS (A KOCIOLEK CHARGE) NOTWITHSTANDING THE STATE'S SUBSTANTIAL RELIANCE ON ORAL STATEMENTS TO PROVE ITS CASE. (Not Raised Below)."

"POINT V"

"THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION."

"POINT VI"

"THE FAILURE OF THE TRIAL COURT TO MERGE OFFENSES VIOLATES THE FOLLOWING: FEDERAL AND STATE CONSTITUTIONAL BARS AGAINST DOUBLE JEOPARDY, DUE PROCESS OF LAW, AND ...


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