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State v. Andino

November 05, 2001

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JUAN ANDINO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-3-200-I.

Before Judges Stern, Eichen and Collester.

The opinion of the court was delivered by: Per Curiam

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 17, 2001

Defendant was charged in a single count indictment with committing an armed robbery, N.J.S.A. 2C:15-1a(1) and (2), on December 20, 1998. Following the denial of defendant's motion to suppress both a statement made to the police following his arrest and the knife used during the robbery, defendant was convicted at a trial by jury. He was sentenced to an extended term, as a persistent offender pursuant to N.J.S.A. 2C:44-3a, of thirty-five years in the custody of the Commissioner of Corrections with an 85% period of parole ineligibility period pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.*fn1

On the appeal defendant argues:

POINT I THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 10 OF THE NEW JERSEY CONSTITUTION AND 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 STATE'S USE OF ABSENTEE WITNESSES TO PROVE ITS CASE (Not Raised Below)

POINT II THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INCOMPLETE INSTRUCTION TO 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 III 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 WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED (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 PROSECUTORIAL MISCONDUCT ON SUMMATION (Not Raised Below)

POINT V THE TRIAL COURT DEPRIVED THE DEFENDANT OF 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 BY FAILING TO INSTRUCT THE JURY ON THE LESSER OFFENSE OF AGGRAVATED ASSAULT THAT WAS RATIONALLY SUPPORTED BY THE RECORD

POINT VI THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS

POINT VII THE DEFENDANT'S SENTENCE IS EXCESSIVE:

A. THE TRIAL COURT ERRED BY IMPROPERLY SENTENCING THE DEFENDANT IN ACCORDANCE WITH THE "NO EARLY RELEASE ACT": THE STATE FAILED TO SHOW THAT THE DEFENDANT COMMITTED AN ACT OF VIOLENCE THAT IS ADDITIONAL TO ...


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