OF FELONY MURDER, ROBBERY, AGGRAVATED MANSLAUGHTER, BURGLARY AND ELUDING A POLICE OFFICER AND AGGRAVATED ASSAULT THUS IMPERMISSIBLY SHIFTING THE BURDEN OF PROOF TO DEFENDANT
APPENDIX "A" - Continued
TO ESTABLISH HIS INNOCENCE. COLLARY [SIC] ARGUMENT IS PRESENTED THAT THE LOWER COURT FAILED TO MOLD APPROPRIATE INSTRUCTIONS TO FIT DEFENSE THEORY OF CASE.
(1) LOWER COURT INCORRECTLY CHARGED THE JURY AS TO ROBBERY AS A MATTER OF LAW THUS VIOLATING DEFENDANT'S DUE PROCESS REQUIREMENT THAT THE STATE MUST PROVE EACH ELEMENT OF THE CRIME CHARGED BEYOND A REASONABLE DOUBT.
(a) INTENTIONAL USE OF FORCE (b) PURPOSEFUL CONDUCT (1.) AGGRAVATED ASSAULT CHARGE INTERFERED WITH REQUIREMENT TO FIND PURPOSEFUL INTENT TO INFLICT INJURY AN ESSENTIAL ELEMENT OF ROBBERY.
(c) DEFENDANT WAS DENIED DUE PROCESS OF LAW BY LOWER COURT'S PRIOR RULINGS AND JURY CHARGE WHICH WERE TANTAMOUNT TO DIRECTING VERDICT FOR THE PROSECUTION AS TO THE PREDICATE CRIME OF ROBBERY. (2) JURY CHARGES AS TO FELONY MURDER FAILED TO REQUIRE PROSECUTION TO PROVE ALL THREE ESSENTIAL ELEMENTS.
(a) FAILURE TO INFORM JURY THAT MENTAL STATE OF INTENT TO COMMIT UNDERLYING *125 APPENDIX "A" - Continued
CRIME OR ROBBERY MUST BE FOUND PRIOR TO FINDING DEFENDANT GUILTY OF FELONY-MURDER CONSTITUTES PLAIN ERROR IN THAT IT DENIES THE DEFENDANT DUE PROCESS OF LAW AND CUTS ACROSS THE GRAIN OF RUDIMENTARY CONCEPTS OF CRIMINAL LAW.
(b) LOWER COURT FAILED TO ADEQUATELY CHARGE JURY AS TO "IMMEDIATE FLIGHT[.]" (c) JURY CHARGE RECEIVED AS TO CAUSATION OF TRAFFIC ACCIDENT VICTIM'S DEATH CONSTITUTED A DIRECTED VERDICT AS TO CULPABILITY AND IS PER SE UNCONSTITUTIONAL[.] (3) JURY CHARGE AS TO AGGRAVATED MANSLAUGHTER IMPROPERLY RECITED N.J.S.A.[ ]2C:2-3e. ACTUAL RESULT WAS WITHIN THE RISK THEREFORE RECITATION OF STATUTE IMPERMISSIBLY SHIFTED BURDEN OF PROOF THEREBY DENYING DEFENDANT DUE PROCESS OF LAW.
(4) JURY RECEIVED IMPROPER CHARGES AS TO PREDICATE CRIME OF FELONY MURDER THEREFORE IT NEVER CONSIDERED DEATH BY AUTO STATUTE.
(5) JURY WAS NOT CHARGED WITH THE ELEMENT OF CAUSATION AND THEREFORE CONVICTION CAN NOT STAND AS TO A VIOLATION OF N.J.S.A.[] 2C:29-2b[.]
APPENDIX "A" - Continued
(6) FAILURE TO CHARGE PURSUANT TO N.J.S.A.[] 2C:20-10 BASED ON FACTS KNOWN BY BOTH THE DEFENSE AND THE PROSECUTION DENIED DEFENDANT DUE PROCESS OF LAW.
POINT V PRESENT RECORD DOCUMENTS FACTUAL BASIS TO SUPPORT DEFENDANT'S CLAIM OF DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL AS REQUIRED BY THE TESTS OF STRICKLAND V. WASHINGTON, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.[2d] 674, (1984); [ ]UNITED STATES V. CRONIC, 466 U.S. 648[, 104 S.Ct. 2039, 80 L.Ed.2d 657] (1984); STATE V. FRITZ, 105 N.J. 42[, 519 A.2d 336] (1987)[;] STATE V. JACK, 144 N.J. 240[, 676 A.2d 545] (1996).
(A) DEFENDANT WAS PREJUDICED BY COUNSEL'S DEFICIENT PERFORMANCE. STRICKLAND V. WASHINGTON, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.[2d] 674 (1984)[.]
POINT VI SENTENCE RECEIVED MUST BE REMANDED FOR PROPER SENTENCE. R.[]2:10-3. DEFENDANT'S SENTENCE IS ILLEGAL, MANIFESTLY EXCESSIVE AND IN VIOLATION OF THE CRIMINAL CODE.
NOTES [1] The robbery conviction involving victim Gloria Miskerik was in the first degree as alleged in count ten; the convictions regarding the robberies of Diane Dorry and Vera