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State v. Salinas

November 21, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OSCAR SALINAS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 02-09-1760 and 04-01-0256.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 24, 2007

Before Judges Parrillo, Graves, and Alvarez.

Following a jury trial, defendant Oscar Salinas was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and third-degree child endangering, N.J.S.A. 2C:24-4(a). The court merged the child endangering count with the aggravated sexual assault count, imposing for that crime fifteen years imprisonment subject to an eighty-five percent parole disqualifier. Appropriate fees and penalties were also imposed as was Community Supervision for Life pursuant to N.J.S.A. 2C:43-6.4 and Megan's Law, N.J.S.A. 2C:7-1 to -19. This appeal followed.

Defendant asserts a host of errors in the manner in which the trial was conducted and the sentence imposed:

POINT I

DEFENDANT OSCAR SALINAS'[S] CONVICTION MUST BE REVERSED, SINCE THE TRIAL COURT COMMITTED ERRORS BEFORE THE JURY DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONSTITUTION, AMEND. XIV, N.J. CONST. OF 1947 ART. 1, 9, 10)

A. THE TRIAL COURT'S CHARGE ON THE DEFINITION OF AGGRAVATED SEXUAL ASSAULT (SPECIFICALLY AS TO THE DEFINITION OF CUNNILINGUS) WAS INCORRECT AND HAD THE CLEAR CAPACITY TO MISLEAD THE JURY TO AN UNJUST RESULT.

B. THE TRIAL COURT ERRED IN PERMITTING NUMEROUS DUPLICITOUS OUT-OF-COURT STATEMENTS WHICH UNDULY PREJUDICED DEFENDANT AND SHOULD HAVE BEEN EXCLUDED BY THE COURT PURSUANT TO N.J.R.E. 403 RESULTING IN DENIAL OF DEFENDANT'S RIGHT TO A FAIR TRIAL.

C. THE STATEMENTS [THE CHILD] MADE TO HER MOTHER, FATHER, DETECTIVE WARD AND INVESTIGATOR ZUPPA SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE BEFORE THE JURY SINCE THEY WERE NOT "TRUSTWORTHY."

D. DURING THE TRIAL THE TRIAL JUDGE PERMITTED IMPROPER EVIDENCE BEFORE THE JURY INCLUDING HEARSAY EVIDENCE AND EVIDENCE WHOSE PREJUDICIAL VALUE SUBSTANTIALLY OUTWEIGHED ...


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