On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0639.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2009
Before Judges Cuff and Payne.
Defendant, Quevil Austin, appeals from his conviction for the lesser-included disorderly persons offense of simple assault on Passaic Police Detective Juan Clavijo, N.J.S.A. 2C:12-1a(1);*fn1 the lesser-included offense of third-degree aggravated assault on Officer Andrew Harmel, N.J.S.A. 2C:12-1b(7);*fn2 third-degree aggravated assault on Officer Rafael Ortiz, N.J.S.A. 2C:12-1b(5)(a); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2); and resisting arrest by use of physical force against a police officer, N.J.S.A. 2C:29-2a(3). He appeals as well from the imposition of a discretionary extended term sentence of six years, subject to a three-year period of parole ineligibility for third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and a consecutive six-month sentence, for the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a(1).
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL, AND MADE SEVERAL ERRORS IN INSTRUCTING THE JURY. THE CUMULATIVE EFFECT WAS A COMPROMISE VERDICT THAT DENIED DEFENDANT THE RIGHTS OF DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const. Amend. VI, XIV; N.J. Const. Art. 1 ¶¶ 1, 10.
A. An Accomplice Liability Charge Was Inapplicable.
B. The Court Erroneously Tailored The Accomplice Liability Charge And Gave An Inadequate Curative Instruction.
C. The Court Erred In Denying Defendant's Motion for Acquittal.
D. The Erroneous Charge Resulted In The Jury Reaching A Compromise Verdict As Noted In Christener And Wilder That Constituted A Violation Of Defendant's Rights To Due Process And A Fair Trial.
THE COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL BECAUSE THE ADMISSION OF TESTIMONY REGARDING THE CO-DEFENDANT/ OTHER UNDERCOVER OFFICER CONFRONTATION WAS IRRELEVANT, UNDULY PREJUDICIAL, CONFUSING OR MISLEADING IN VIOLATION OF EITHER N.J.R.E. 401 OR N.J.R.E. 403a.
THE PROSECUTOR'S MISCONDUCT IN CROSS-EXAMINATION OF THE DEFENDANT AND IN SUMMATION SHIFTED THE BURDEN OF PROOF AND CONTRADICTED CLAWANS PRINCIPLES. INDIVIDUALLY AND CUMULATIVELY, THESE CONSTITUTE VIOLATIONS OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. Const. Amend. V, VI, XIV; N.J. Const. Art. I, ¶¶ 1, 9, 10.
THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. Const. Amend. VI, XIV; N.J. ...