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State of New Jersey v. Abdiel F. Avila

April 18, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ABDIEL F. AVILA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-10-3500.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2011

Before Judges Lisa, Reisner and Ostrer.

Defendant was charged in a four-count indictment with offenses committed against his stepdaughter, C.H., when she was thirteen and fourteen years old. The first count charged first- degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a), committed on a specific date, June 30, 2006. Count two charged second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, on that same date, arising out of the same conduct. Count three charged first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a), committed on various dates between November 2005 and June 29, 2006. Count four charged a corresponding second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, on various dates during that same time period, arising out of the same conduct.

The jury found defendant guilty of all four counts. He was sentenced on count three to an extended term as a persistent offender, see N.J.S.A. 2C:44-3c and N.J.S.A. 2C:43-7a(2), of seventy-five years imprisonment, subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count one, defendant received a consecutive twenty-year sentence, subject to an 85% NERA parole disqualifier. On count two, defendant was sentenced to seven-and-one-half years imprisonment, concurrent to count one, and on count four, he was sentenced to ten years imprisonment, concurrent to count three. Therefore, defendant's aggregate sentence is ninety-five years imprisonment, of which he must serve 85% before becoming eligible for parole.

In the brief filed by his attorney, defendant argues:

POINT I

THE COURT ERRED IN PERMITTING FRESH COMPLAINT TESTIMONY IN THIS CASE. ALTERNATIVELY, THE COURT ERRED IN PERMITTING THE INTRODUCTION OF EXCESSIVE DETAILS IN THE FRESH COMPLAINT TESTIMONY OF M.A.

POINT II

THE COURT FAILED TO INSTRUCT THE JURY THAT BEFORE CONSIDERING DEFENDANT'S ALLEGED OUTOF-COURT STATEMENTS IT MUST FIRST FIND SUCH STATEMENTS TO BE CREDIBLE AND THAT NONMEMORIALIZED ORAL STATEMENTS MUST BE REGARDED WITH CAUTION. THIS ERROR WAS COMPOUNDED BY THE COURT'S REFUSAL TO INSTRUCT THE JURY WITH THE FALSE IN ONE / FALSE IN ALL CHARGE. THESE ERRORS SERVED TO DEPRIVE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS OF LAW. U.S. CONST. Amends. VI and XIV; N.J. CONST. (1947) Art. I, pars. 1, 9 and 10. (Partially Raised Below)

POINT III

THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S ALLOWANCE OF HIGHLY PREJUDICIAL BUT IRRELEVANT EVIDENCE.

POINT IV

INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, PARS. 1, 10. (Partially Raised Below)

POINT V

THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)

POINT VI

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. Const. Amend. VI, XIV; N.J. Const. Art. I, ¶¶ 1, 10.

POINT VII

THE IMPOSITION OF AN EXTENDED TERM OF LIFE WITH AN 85% PAROLE BAR, CONSECUTIVE TO A 20-YEAR NERA TERM OF IMPRISONMENT IS EXCESSIVE.

In a supplemental pro se brief, defendant presented the following additional arguments:

POINT I

DEFENDANTS RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, P[A]RAGRAPHS 1 AND 22, OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED WHEN THE STATE FAILED TO PROPERLY SEQUESTER THE ALLEGED VICTIM AND FURTHER DENIED THE DEFENSE TO DISQUALIFY HER AT TRIAL AND ALL OTHER WITNESSES, COURTS DENIAL TO THE DEFENSE ALLOW THE STATE'S USE OF THE INITIAL WRITINGS, STATEMENTS, RECORDS OF VITAL STATISTICS, STATES EXHIBITS BE ENTERED TO EVIDENCE, AND TESTIMONY OF THE ALLEGED VICTIM, AND OF ALL OTHER WITNESSES WHICH ALL WERE INADMISSIBLE AND FAILED TO BE RELIABLE TRUSTWORTHY, AND FAILED TO PROVE THE ELEMENTS OF THE OFFENSES.

POINT II

DEFENDANTS' DUE PROCESS RIGHTS AND EQUAL PROTECTION OF THE LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED BY THE STATES' WITHHOLDING OF EVIDENCE, OMISSIONS OF THE FACTS AND MATERIAL FACTS, OF SUA SPONTE EVIDENCE AND TRUISM.

POINT III

DEFENDANT-APPELLANTS RIGHTS WAS CONSTITUTIONALLY VIOLATED UNDER THE THIRTEENTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION WHEN THE STATE LEGISLATURE ENCROACHED AND FAILED TO DEFINE THE "MAN" IN ANY OF THE STATUTES ADJUDICATED THE CONSTITUTIONALITY OF THE STATUTES ARE CHALLENGUED, ARE VAGUE AND HAVE A BROAD DEFINITION TO A 'PERSON' WHICH FAILED TO INCLUDE THE "MAN" THAT IS CURRENTLY IMPRISONED CONSTITUTING INTERNATIONAL HUMAN RIGHTS VIOLATIONS.

POINT IV

DEFENDANTS' 'CONSTITUTIONAL RIGHTS GUARANTEED BY THE 4th, 14th AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE STATE OF NEW JERSEY CONSTITUTION WHERE VIOLATED WHEN BOTH THE LOWER COURT FAILED TO ESTABLISH JURISDICTION ON THE ...


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