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State v. Garcia

February 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDREW R. GARCIA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-06-0841.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2010

Before Judges Lisa and Alvarez.

Tried to a jury, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2. For the aggravated assault, defendant was sentenced in the third-degree range, see N.J.S.A. 2C:44-1f(2), to four years imprisonment, subject to an 85% parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. For endangering an injured victim, defendant was sentenced to three years imprisonment which, as required by N.J.S.A. 2C:12-1.2d, was ordered to be served consecutively to the aggravated assault sentence. All mandatory monetary assessments were imposed and defendant was ordered to pay restitution. On appeal, defendant argues:

POINT I

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT CO-DEFENDANT MEGHAN [DIACZYNSKY]'S ENTRY INTO THE PRETRIAL INTERVENTION PROGRAM SHOULD NOT BE CONSIDERED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT CONSTITUTES PLAIN ERROR (NOT RAISED BELOW). POINT II THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT FOUR CHARGING ENDANGERING AN INJURED VICTIM MADE AT THE END OF THE STATE'S CASE.

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY CHARGE BY FAILING TO INSTRUCT THE JURY SUA SPONTE ON THE DEFENSE OF SELF-DEFENSE AND BY FAILING TO INCORPORATE THE FACTS OF THE CASE (NOT RAISED BELOW).

(A) THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY SUA SPONTE ON SELF DEFENSE (NOT RAISED BELOW).

(B) THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INCORPORATE IN ITS JURY CHARGE THE FACTUAL CONTEXT THAT CONFRONTED THE DEFENDANT (NOT RAISED BELOW).

POINT IV

THE BASE CUSTODIAL SENTENCE OF 4 YEARS IMPOSED ON THE DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT ON COUNT THREE WAS MANIFESTLY EXCESSIVE AND ...


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