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State v. Violante

November 28, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL A. VIOLANTE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1670.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 8, 2007

Before Judges Cuff and Lisa.

The jury found defendant guilty of third-degree theft by deception, N.J.S.A. 2C:20-4 (count one), fourth-degree forgery, N.J.S.A. 2C:21-1a(2) (count two), and fourth-degree uttering a forged instrument, N.J.S.A. 2C:21-1a(3) (count three). Defendant was sentenced to four years probation, conditioned upon serving six months in the county jail. He was ordered to pay restitution of $6,750, and all mandatory monetary assessments. On appeal, defendant argues:

POINT I

THE TRIAL COURT'S FAILURE TO DISMISS THE CHARGE OF THEFT BY DECEPTION AS A MATTER OF LAW DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL WHEN THE COURT RULED THAT DEFENDANT'S TWO REMOTE PRIOR CONVICTIONS, WHICH WERE NOT SERIOUS AND DID NOT INVOLVE LACK OF VERACITY, DISHONESTY OR FRAUD, WOULD BE ADMISSIBLE IF HE TESTIFIED. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10; N.J.R.E. 609.

POINT III

THE TRIAL JUDGE'S STATEMENTS IN THE JURY'S PRESENCE THAT EVIDENCED LACK OF IMPARTIALITY AND EXPRESSED SKEPTICISM ABOUT THE BASIS FOR THE AFFIRMATIVE DEFENSE OF CLAIM OF RIGHT, AND THE FAILURE TO CHARGE THE JURY ON THAT DEFENSE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. ADDITIONALLY, COUNSEL'S FAILURE TO FORMALLY REQUEST A CHARGE ON CLAIM OF RIGHT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Partially Raised Below).

A. The Trial Judge Exhibited Partiality Toward the State and Skepticism of the Defense of Claim of Right.

B. The Trial Court's Failure to Charge the Defense of Claim of Right Constituted Plain Error.

C. Defense Counsel's Failure To Formally Request A Charge On Claim Of Right Constituted ...


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