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State of New Jersey v. Arsenio L. Diaz

January 9, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ARSENIO L. DIAZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-10-1782.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 25, 2011

Before Judges Messano and Yannotti.

Following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), and third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d). The judge merged all three counts and sentenced defendant to a ten-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant raises the following points on appeal:

POINT ONE

THE TRIAL COURT ERRED IN ALLOWING THE STATE'S EXPERT TO TESTIFY BECAUSE THE STATE FAILED TO COMPLY WITH THE NOTICE REQUIREMENTS IN THE COURT RULES

A. Detective DeLong's Fingerprint Testimony Was Expert Testimony Within The Purview Of Rule 702 Because It Was Based On Specialized Scientific And Technical Knowledge

B. DeLong's Testimony Was Not The Proper Subject Of Lay Testimony

C. Allowing DeLong To Present Expert Testimony In Spite Of The State's Discovery Failure Deprived Diaz Of His Right To Confrontation

D. DeLong's Testimony Exceeded The Scope Of The Facts In Evidence And Should Have Been Excluded Under N.J.R.E. 703

E. Allowing DeLong To Testify Was Prejudicial Error Requiring Reversal

F. The Court's Failure to Instruct The Jury On Expert Testimony Was Reversible Error

POINT II

THE TRIAL COURT ERRONEOUSLY FOUND AGGRAVATING SENTENCING FACTORS THREE AND NINE WITHOUT ADEQUATE EVIDENTIARY SUPPORT IN THE RECORD. THIS COURT SHOULD VACATE AND REMAND FOR RESENTENCING

A. The Trial Court Failed To Set Forth A Proper Statement Of Reasons And Findings Of Fact In Support Of Its Sentencing Decision

B. There Is No Evidentiary Support In The Record For A Finding That Diaz Is Likely To Reoffend

C. There Is No Basis In The Record For Finding A Need For Deterrence As An Aggravating Factor

D. On Remand, Diaz Will Be Able To Argue That He Should Be Resentenced As A Second-Degree Offender.

In a pro se supplemental brief, defendant argues:

POINT I

THE VERDICT FINDING THE DEFENDANT GUILTY SHOULD BE VACATED BECAUSE IT VIOLATED DEFENDANT'S RIGHTS TO A FAIR AND [IMPARTIAL] TRIAL REQUIRED BY THE 6TH AMENDMENT TO THE UNITED STATES ...


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