On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-04-0520.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Payne and Miniman.
On April 28, 2005, defendant was indicted for second-degree arson, N.J.S.A. 2C:17-1a(1) and (2), and third-degree criminal mischief, N.J.S.A. 2C:17-3a(1). A jury trial took place, during which an insanity defense was asserted. At the trial's conclusion, the jury convicted defendant of the lesser-included offense of third-degree reckless arson, N.J.S.A. 2C:17-1b(1) and (2), and third-degree criminal mischief. After denying the State's motion for an extended term, the trial judge merged the criminal mischief conviction into the arson conviction and sentenced defendant to a custodial term of three years. The judge found to be applicable aggravating factors 3 (the risk that defendant will commit another offense), 6 (the extent of defendant's prior record) and 9 (the need to deter), N.J.S.A. 2C:44-1a, with no mitigating factors.
Defendant has appealed his conviction and his sentence. On appeal, he presents the following arguments:
THE DEFENDANT'S RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM AND TO A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT ALLOWED THE PROSECUTOR TO INTRODUCE STATEMENTS OF PERSONS WHO DID NOT TESTIFY AS SUBSTANTIVE EVIDENCE OF GUILT UNDER N.J.R.E. 705.
A. The Prosecutor Was Improperly Allowed, Over Objection, To Use A Statement of Walter Jones, Who Did Not Testify, As Substantive Evidence Of The Cause Of The Incident.
B. The Prosecutor Was Improperly Permitted To Ask Dr. Weiss About Unsubstantiated Prior Acts of Violence Set Forth In Medical Records.
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON DIMINISHED CAPACITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below.)
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT ...