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State v. Boretsky

August 28, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BORIS BORETSKY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, Indictment No. 02-05-642.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 14, 2008

Before Judges Wefing, Parker and Kestin.

Defendant, Boris Boretsky, was charged in a nine-count indictment with two crimes of the first degree: murder, N.J.S.A. 2C:11-3a(1),(2) (count six), and felony-murder, N.J.S.A. 2C:11-3a(3) (count seven); two crimes of the second degree: aggravated assault, N.J.S.A. 2C:12-1b(1) (count one), and burglary, N.J.S.A. 2C:18-2 (count four); two crimes of the third degree: terroristic threats, N.J.S.A. 2C:12-3 (count two), and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4d (count eight); and three crimes of the fourth degree: two instances of contempt, N.J.S.A. 2C:29-9b (counts three and five), and tampering with or fabricating physical evidence, N.J.S.A. 2C:28-6(1) (count nine).

Following a jury trial, defendant was convicted of all charges. In the penalty phase regarding the conviction for murder, the jury could not reach unanimous agreement on the death penalty sought by the State.

Accordingly, the trial court, after merging the convictions for felony-murder and possession of a weapon for unlawful purpose into the murder conviction, sentenced defendant, for murder, to a life term of imprisonment without parole. Consecutive sentences of imprisonment were also imposed: ten years with eighty-five percent parole ineligibility on the conviction for second-degree burglary; seven years with eighty-five percent parole ineligibility on the conviction for second-degree aggravated assault; five years on the terroristic threats conviction; and eighteen months on the tampering conviction.

Concurrent eighteen-month terms of imprisonment were imposed on each of the two contempt convictions.

Defendant appeals from the convictions. In counsel's brief, the following issues are raised:

POINT ONE

THE TRIAL COURT'S INSTRUCTION THAT THE JURY COULD CONSIDER EVIDENCE THAT DEFENDANT PREVIOUSLY ASSAULTED AND THREATENED HIS WIFE AS PROOF THAT HE WAS GUILY OF MURDER DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT TWO

THE MEDICAL EXAMINER'S TESTIMONY THAT THE CAUSE OF DEATH WAS "HOMICIDE" EXCEEDED THE SCOPE OF PERMISSIBLE EXPERT TESTIMONY AND IMPROPERLY ADDRESSED THE ULTIMATE ISSUE BEFORE THE JURY, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL AND REQUIRING THE REVERSAL OF HIS CONVICTIONS. (Not Raised Below)

POINT THREE

THE COURT COMMITTED REVERSIBLE ERROR IN ITS REFUSAL TO SEVER THE COUNTS CHARGING CONTEMPT FOR VIOLATION OF A RESTRAINING ORDER.

POINT FOUR

BECAUSE THE STATE FAILED TO PROVE THE ELEMENTS OF TERRORISTIC THREATS BEYOND A REASONABLE DOUBT, THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT TWO.

POINT FIVE

DEFENDANT'S BURGLARY AND FELONY MURDER CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO TAILOR THE CHARGE TO THE FACTS OF THE CASE AND FAILED TO INFORM THE JURY THAT VIOLATION OF A DOMESTIC VIOLENCE RESTRAINING ORDER DOES NOT SATISFY THE ...


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