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State v. Rivella

August 8, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICK A. RIVELLA, RESPONDENT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-01505-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 24, 2007

Before Judges Gilroy and Lihotz.

Following a jury trial, defendant was convicted under Union County Indictment No. 04-12-1505 of third-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1b(5)(a) (Count One); third-degree resisting arrest by using or threatening to use physical force or violence against a police officer, N.J.S.A. 2C:29-2a(3)(a) (Count Two); fourth-degree resisting arrest by flight, purposefully preventing or attempting to prevent a police officer from effecting arrest, N.J.S.A. 2C:29-2a(2) (Count Three); and fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (Count Four). Prior to sentencing, defendant moved for a judgment of acquittal, or in the alternative, for a new trial, and the motion was denied. On December 16, 2005, defendant was sentenced on Count Two as a persistent offender to an extended term of seven years of imprisonment with a one-year parole disqualifier. Concurrent terms of eighteen months each were imposed on the convictions on Counts Three and Four. Count One was merged with Count Two. All appropriate fees and penalties were imposed. Defendant appeals. We affirm the convictions; vacate the sentence imposed on Count Two; and remand for re-sentencing on Count Two only.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING COUNTS I, II AND III OF THE INDICTMENT.

A. THE STATE FAILED TO PRESENT A PRIMA FACIE CASE ESTABLISHING THE REQUISITE ELEMENTS OF THIRD[-]DEGREE AGGRAVATED ASSAULT EMBODIED IN COUNT I OF THE INDICTMENT.

B. THE STATE FAILED TO PRESENT A PRIMA FACIE CASE REGARDING THE REQUISITE ELEMENTS OF RESISTING ARREST EMBODIED IN COUNTS II AND III OF THE INDICMENT.

POINT II.

THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING COUNT I CHARGING AGGRAVATED ASSAULT.

POINT III.

THE TRIAL COURT ERRED IN ITS ASSESSMENT OF APPLICABLE AGGRAVATING AND MITIGATING ...


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