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State v. Olivera

November 01, 2001

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MONSERAT OLIVERA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 98-7-979-I.

Before Judges Conley, Lefelt and Lisa.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 11, 2001

Defendant was indicted for two counts of third-degree luring, N.J.S.A. 2C:13-6, involving separate incidents and different victims, occurring approximately one year apart. The two counts were tried together. At the end of the State's case the judge entered a judgment of acquittal on one count. Defendant was convicted on the other count and sentenced to three years imprisonment and mandatory monetary penalties. On appeal, defendant contends:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DEFINE THE ELEMENTS OF THE OFFENSE OF LURING

POINT II

THE TRIAL COURT'S GENERAL INSTRUCTION TO THE JURORS THAT THEIR VERDICT MUST BE UNANIMOUS WAS INADEQUATE BECAUSE IT ALLOWED A VERDICT OF GUILTY ON A SINGLE CHARGE TO BE BASED ON THE COMMISSION OF DISTINCT CRIMINAL ACTS AND CRIMINAL INTENTS: THE JURY UNANIMITY INSTRUCTION SHOULD HAVE REQUIRED THE JURORS TO REACH A UNANIMOUS DECISION ON THE PREDICATE FACTS GIVING RISE TO CRIMINAL LIABILITY (Not Raised Below)

POINT III

THE DEFENDANT'S RIGHT TO REMAIN SILENT AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW WAS VIOLATED BY THE ADMISSION OF EVIDENCE THAT HE HAD INVOKED HIS PRIVILEGE AGAINST SELF-INCRIMINATION DURING CUSTODIAL INTERROGATION (Not Raised Below)

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE [TO] GRANT A SEVERANCE

POINT V

THE DEFENDANT'S RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT DURING CLOSING STATEMENTS (Not Raised Below)

POINT VI

THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD ...


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