On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-07-0684.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Simonelli and Hayden.
Following a jury trial, defendant Irvin Sandi-Soto was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1b (count one); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and (6) (counts two and four); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count five); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count six); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count seven).*fn1 At sentencing, the trial judge merged count four with count two and sentenced defendant as follows: a twenty-two year term of imprisonment with an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one; a consecutive fifteen-year term of imprisonment subject to NERA on count two; a concurrent seven-year term of imprisonment subject to NERA on count five; a concurrent four-year term of imprisonment on count six; and a concurrent nine-month term of imprisonment on count seven. The judge also imposed the appropriate assessments, penalties and surcharge, and ordered defendant to pay restitution in the amount of $9,124.24.
On appeal, defendant raises the following contentions:
THE CUMULATIVE IMPACT OF HEARSAY AND OTHERWISE INADMISSIBLE, HARMFUL EVIDENCE DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; [N.J. CONST., ART. 1, PARAS. 1, 9, and 10.] (Partially Raised Below).
B. Police Witness Vouching for
C. Police Witness['s] Opinion on
D. [S.F.'s] Testimony That Her Daughter Knew Defendant Had Committed the Assault.
E. Defendant's Status as an Illegal Immigrant.
THE DEFINITION OF "SEVERE PERSONAL INJURY" UNDERLYING THE THEORY OF AGGRAVATED SEXUAL ASSAULT IN N.J.S.A. 2C:14-2a(6) IS CIRCULAR, PROVIDING THE JURY WITH INSUFFICIENT GUIDANCE ON HOW TO FIND THIS ESSENTIAL ELEMENT. (Not Raised Below).
THE [THIRTY-SEVEN]-YEAR TERM SUBJECT TO [EIGHTY-FIVE PERCENT] PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE [BEEN] MERGED WITH THE AGGRAVATED ASSAULT CONVICTION.
A REMAND SHOULD BE ORDERED FOR AN INQUIRY INTO DEFENDANT'S ABILITY ...