On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-09-2224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Parrillo and Messano.
Defendant Keith Drake appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree sexual assault, N.J.S.A. 2C:14-2c(1). The trial judge granted the State's motion to sentence defendant to an extended term of imprisonment as a persistent offender, N.J.S.A. 2C:44-3a, and imposed a seventeen-year term of imprisonment, 85% of which was to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following points for our consideration:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUTIOUSLY VOLUNTEERED BY THE VICTIM INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT SIMILAR TO THAT FOR WHICH HE WAS ON TRIAL. (PARTIALLY RAISED BELOW)
THE DEFENDANT IS ENTITLED TO A REMAND FOR A RESENTENCING PURSUANT TO STATE V. PIERCE.
THE TRIAL COURT ERRED IN ITS ASSESSMENT OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS IN IMPOSING SENTENCE.
In a pro se supplemental brief, defendant additionally argues:
THE TRIAL COURT'S FAILURE TO DEFINE COERCION AS AN ELEMENT OF THE SEXUAL ASSAULT ALLEGED IN COUNT 3 DENIED DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW.
DEFENDANT WAS FOUND GUILTY BY A JURY OF COUNT 3 SEXUAL ASSAULT BY PERFORMING CUNNILINGUS. THE STATE MUST PROVE BEYOND A REASONABLE DOUBT ON ALL ELEMENTS.
THE TRIAL COURT ERRED WHEN CHARGING THE JURY ON THE ELEMENTS, THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT.
PROSECUTOR FAILED TO PROVE BODILY INJURY BEYOND A REASONABLE DOUBT.
WHERE THE DEFENDANT WAS FOUND GUILTY OF COUNT 3 SEXUAL ASSAULT PERFORMING CUNNILINGUS AND THE ACTOR USED PHYSICAL FORCE OR COERCION, BUT THE VICTIM ...