On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 27, 2008
Before Judges Axelrad and Sapp-Peterson.
Defendant Leon Nelson was convicted by a jury of second-degree sexual assault as a lesser-included offense of first-degree aggravated assault, and was also found guilty of third-degree criminal restraint, N.J.S.A. 2C:13-2. He was acquitted of third-degree threatening to kill and third-degree burglary. On August 12, 2005, defendant was sentenced on the sexual assault conviction to a discretionary extended term of twenty years with an 85% term of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent five-year term on the criminal restraint conviction. Appropriate mandatory monetary assessments were imposed.
On appeal, defendant raises the following arguments:
BY FAILING TO PROPERLY INSTRUCT THE JURY ON SEXUAL ASSAULT AS A LESSER-INCLUDED OFFENSE OF AGGRAVATED SEXUAL ASSAULT, THE TRIAL COURT DENIED MR. NELSON HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).
A. A SEPARATE INSTRUCTION ON SEXUAL ASSAULT WAS ESSENTIAL TO A FAIR TRIAL.
B. QUESTIONS 1 AND 1a ON THE VERDICT SHEET COULD NOT SUBSTITUTE FOR A PROPER JURY INSTRUCTION ON AN OFFENSE BEFORE THE JURY.
C. IT WAS NOT SUFFICIENT FOR THE TRIAL JUDGE TO EXPLAIN SOME OF THE ELEMENTS OF SEXUAL ASSAULT WHILE INSTRUCTING ON AGGRAVATED SEXUAL ASSAULT.
D. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON SEXUAL ASSAULT WAS BOTH PLAIN ERROR AND STRUCTURAL ERROR.
THE COURT ABUSED ITS DISCRETION IN SENTENCING MR. NELSON TO AN EXTENDED TERM AS A PERSISTENT OFFENDER. EVEN IF AN EXTENDED TERM HAD BEEN APPROPRIATE, THE ...