STATE OF NEW JERSEY v. DINO ARIAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0470-04T40470-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DINO ARIAS,

Defendant-Appellant.

__________________________________________________________

 

Submitted September 19, 2006 - Decided October 2, 2006

Before Judges Weissbard and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

02-09-1157.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Stephen A. Caruso,

Assistant Deputy Public Defender, of counsel

and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Nancy A. Hulett,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

A jury convicted defendant of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count one); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count two); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). At sentencing, count two was merged into count one, and defendant received a six-year prison term, with a concurrent three-year term on count three. Appropriate monetary sanctions and Megan's Law conditions were also imposed.

Defendant was twenty-nine years old when he was sentenced. Prior to sentencing, the trial court summarized the facts of the case as follows:

Mr. Arias had a relationship with an adult woman, age appropriate, who had then a 14 year-old daughter. While engaging in this romantic relationship with the adult paramour he also began a romantic relationship with the 14 year-old daughter, and it didn't just occur on one or two occasions, but it occurred on numerous occasions, over a period of about six months between October, 2001 and March, 2002.

On appeal, defendant argues:

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below)

We have carefully reviewed the record and the applicable law, and we are satisfied that defendant's argument is without sufficient merit to warrant extended discussion in a written opinion. See R. 2:11-3(e)(2). We therefore affirm, adding these brief comments.

Defendant's contention that the jury verdict was against the weight of the evidence is procedurally barred because he failed to move for a new trial on that ground. R. 2:10-1. See, e.g., State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). Nevertheless, we have opted to consider the issue, and we conclude that it lacks substantive merit. The testimony of the victim, which was corroborated by the testimony of her close friend, provided ample support for the jury verdict.

Defendant elected not to testify, and he did not call any witnesses. Thus, the trial's outcome depended primarily on the jury's evaluation of the State's witnesses--especially the victim. Defense counsel argued that the victim and her close friend had both "entered into a delusional world." Of course, the jury was free to accept or reject, in whole or in part, any aspect of testimonial evidence based on credibility, and it obviously concluded that the State's witnesses were credible. See State v. Coleman, 46 N.J. 16, 43 (1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966). Our examination of the record confirms the existence of sufficient proofs to support the convictions, and it discloses no basis to conclude there was a miscarriage of justice.

 
Affirmed.

(continued)

(continued)

3

A-0470-04T4

RECORD IMPOUNDED

October 2, 2006