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State v. Tilelli

March 31, 2008

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



On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-05-2195.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 24, 2007

Before Judges Cuff, Lihotz and Simonelli.

A jury convicted defendant Michael Tilelli of third degree possession of a controlled dangerous substance (heroin), contrary to N.J.S.A. 2C:35-10a(1) (count one); second degree eluding, contrary to N.J.S.A. 2C:29-2b (count two); second degree aggravated assault while fleeing or attempting to elude a police officer, contrary to N.J.S.A. 2C:12-1b(6) (count three); second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count four); third degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1b(5) (count five); fourth degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3b(1) (count six); and fourth degree tampering with or fabricating physical evidence, contrary to N.J.S.A. 2C:28-6(1) (count seven). The jury acquitted defendant of third degree resisting arrest/physical force, but convicted him of the lesser-included offense of fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2a (count eight). As to count two, the jury found that defendant's flight to attempt to elude a police officer created a risk of death or injury to any person.

Judge Baxter merged count three with counts two and four, and count five with count four, and imposed the following terms of imprisonment: three years on count one; seven years on count two; seven years on count four with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA)*fn1 and three years of parole supervision; one year on count six; one year on count seven; and one year on count eight. The sentences on counts two, four, six, seven and eight ran concurrently to one another, but consecutively to count one. Defendant's aggregate sentence is ten years, 5.95*fn2 years of which defendant is parole ineligible under NERA. The judge also imposed the appropriate fines and penalties. Defendant had also been charged with various traffic offenses. The judge found him guilty of all charges and suspended his driving privileges for one year.

Judge Baxter denied defendant's motion for a new trial or for post-verdict juror interrogation. On this appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT'S HANDLING OF THE JUROR ISSUES, BOTH DURING THE TRIAL AND POST-VERDICT, DEPRIVED THE DEFENDANT OF A FAIR TRIAL. THE COURT SHOULD HAVE MADE FURTHER INQUIRY OF JUROR NO. 5 DURING HIS VOIR DIRE AND SHOULD HAVE AUTHORIZED A POST-VERDICT INTERROGATION OF ALL JURORS BASED UPON A TELEPHONE CALL AND TWO LETTERS. (Partially Raised Below).

POINT II

THE PROSECUTOR'S REMARKS DURING HIS SUMMATION DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Not Raised Below).

POINT III

NUMEROUS ERRORS IN THE COURT'S CHARGE TO THE JURY DEPRIVED THE DEFENDANT OF A FAIR TRIAL REQUIRING REVERSAL OF HIS CONVICTIONS. (Not Raised Below).

A. The Defense of Duress

B. Second-degree Eluding Charge

C. Limiting Instructions on Other Crimes Evidence

POINT IV

VARIOUS TRIAL TACTICS BY THE PROSECUTOR DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Not Raised Below).

A. Cross-examination of the defendant.

B. The use of Expert Testimony.

POINT V

THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.

We reject these arguments ...


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