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State v. Bilek

January 23, 1998

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH BILEK, DEFENDANT-APPELLANT.



Before Judges Pressler, Conley and Wallace.

The opinion of the court was delivered by: Conley, J.A.D.

[9]    Argued January 6, 1998

On appeal from Superior Court of New Jersey, Law Division, Passaic County.

Following a jury trial, defendant was acquitted of the charge of possession of a handgun with the purpose to use it against Ricardo Lapa, Sr., but convicted of fourth degree aggravated assault pursuant to N.J.S.A. 2C:12-1b(4), that is, pointing a firearm at or in the direction of Ricardo Lapa, Sr., under circumstances manifesting extreme indifference to the value of human life. A custodial term of eighteen months with an eighteen month disqualifier was imposed.

I.

On appeal, defendant raises the following contentions:

POINT I.

THE COURT ERRED IN DENYING DEFENDANT'S WRITTEN REQUEST TO CHARGE ON VARIOUS MATERIAL ELEMENTS OF THE LAW IN REGARD TO THE RIGHT TO USE FORCE OR DEADLY FORCE UPON AN INTRUDER UNDER N.J.S.A. 2C:3-4c.

A. The court erred in denying defendant's written request to charge that the occupant of a dwelling has the right to use deadly force upon or toward an intruder under N.J.S.A. 2C:3-4c. Defendant was prejudiced by the denial of that request to charge because the right to use deadly force against an intruder negates the essential element of "manifesting extreme indifference to the value of human life" of an aggravated assault offense under N.J.S.A. 2C:12-1b(4).

B. The court erred in denying defendant's request to charge the definition of "personal injury."

C. The court erred in denying defendant's request to charge the jury that a dwelling includes the threshold, entrance or doorway; and that in protecting himself defendant had a right to meet an intruder at the threshold without retreating.

D. The court erred in denying defendant's request to charge that one may be treated as an intruder under N.J.S.A. 2C:3-4c if he poses a risk of personal injury to the occupant of a dwelling by unlawfully entering or attempting to enter a dwelling.

POINT II.

DEFENDANT WAS DENIED A FAIR TRIAL UNDER THE FEDERAL AND STATE CONSTITUTIONS BECAUSE THE JURY WAS NOT CHARGED ON THE USE OF FORCE IN DEFENSE OF PREMISES UNDER N.J.S.A. 2C:3-6 (NOT RAISED BELOW).

POINT III.

THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO STRIKE THE TESTIMONY OF POLICE OFFICERS THAT DEFENDANT NEVER REQUESTED TO FILE ASSAULT, BURGLARY OR TRESPASSING COMPLAINTS AGAINST THE LAPAS SUBSEQUENT TO HIS ARREST. SUCH TESTIMONY PREJUDICED DEFENDANT'S RIGHT TO REMAIN SILENT.

POINT IV.

DEFENDANT WAS DENIED A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S ASSERTION ON CROSS-EXAMINATION OF DEFENDANT THAT DEFENDANT HAD A DISPOSITION FOR VIOLENCE THAT CAUSED HIM TO ASSAULT TENANTS AND TO THUS BE THE AGGRESSOR IN THE CONFRONTATION WITH THE LAPAS (NOT RAISED BELOW).

POINT V.

THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED DEFENDANT A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.

Self-defense was a key issue in the trial and thus points I and II concern the self-defense jury charge. Erroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed reversible error. State v. Vick, 117 N.J. 288, 289 (1987). Our review of the evidence, the charge and the pertinent law convinces us that the self-defense charge was misleading and probably led to an ...


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