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State v. Velez

June 26, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOMINGO G. VELEZ, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 05-09-0320.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 6, 2007

Before Judges Winkelstein and Fuentes.

Defendant Domingo G. Velez was tried before a jury and found guilty of third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1), and third-degree possession of heroin, N.J.S.A. 2C:35-10a(1). The court merged the possession conviction with the distribution charge, and sentenced defendant to an extended term of seven years, with three years of parole ineligibility. The court also imposed the mandatory fines and penalties.

Defendant raises the following arguments on appeal.

POINT ONE

TELLING THE JURY TO "SEARCH FOR THE TRUTH" OMITTING FROM THE CLOSING CHARGE THE COMPARISON BETWEEN THE PREPONDERANCE OF THE EVIDENCE AND REASONABLE DOUBT STANDARDS, AND USING DIFFERENT LANGUAGE TO DESCRIBE OTHER PARTS OF THE STATE'S REASONABLE DOUBT BURDEN VIOLATED DEFENDANT'S STATE AND FEDERAL DUE PROCESS RIGHTS, JURY TRIAL RIGHTS, AND RIGHTS TO A FAIR TRIAL (Not Raised Below).

POINT TWO

COMBINED WITH THE IMPROPER "SEARCH FOR THE TRUTH" COMMAND AND OMISSION FROM THE CLOSING CHARGE OF THE PREPONDERANCE OF THE EVIDENCE AND REASONABLE DOUBT COMPARISON, THE PROSECUTOR FURTHER ATTEMPTED TO SHIFT THE BURDEN OF PROOF TO DEFENDANT BY TELLING THE JURY THAT DEFENDANT'S COUNSEL NEVER ONCE STATED THAT DEFENDANT "DIDN'T DO IT" (Raised Below).

POINT THREE

THE TRIAL COURT PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL BY PERMITTING THE PROSECUTOR TO ELICIT THE BACKGROUND, CREDENTIALS, AND WORK HISTORY OF THE POLICE OFFICERS TESTIFYING AGAINST DEFENDANT (Not Raised Below).

POINT FOUR

THE COURT SHOULD REMAND FOR RESENTENCING BECAUSE DEFENDANT'S SENTENCE IS ...


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