Before Judges Havey, A. A. Rodr¡guez and Collester.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Camden County.
In this appeal, we conclude that a conviction for knowingly taking or attempting to exercise unlawful control over a police officer's weapon, contrary to N.J.S.A. 2C:12-11, should not be vacated because the judge refused to charge that "mere fleeting or uncertain control" over the weapon by defendant would not be sufficient to support a conviction. We also reject defendant's argument that the court should have charged the affirmative defense of mistake, in addition to self-defense, if defendant mistakenly believed that the circumstances justified disarming the officer. On July 28, 1996 defendant, Curtis Cross, his girlfriend, Tawanna Little, and their two children were returning to Camden by car from a picnic in Philadelphia's Fairmount Park. Little was driving. At the same time, Delaware River Port Authority Police Corporal John Leach and Officer Mary Ferguson were working at the Southwest Toll Plaza of the Benjamin Franklin Bridge. Little became annoyed by defendant's "back-seat driving." She pulled the car over and asked Leach to remove defendant from the car.
Leach questioned Little to ascertain if there was a domestic dispute in progress. Leach determined that there was no such dispute. Next, defendant exited the car, approached Leach, and said, "I guess you're just going to believe her side of the story." Leach could smell alcohol on defendant's breath. After a short conversation, defendant agreed not to return to Little's car. He said that he would arrange to stay with a relative who lived a short distance from the bridge. Defendant asked Leach for a ride. Leach refused to give defendant a ride, but directed him to a pedestrian tunnel. Little returned to her vehicle and proceeded to leave the scene.
As defendant began to walk away from the scene, he yelled out, "My keys, my keys." Leach motioned for Little to stop the car. Little was prepared to turn over defendant's keys to him. However, she first wanted to take her house key from the key ring.
There is a sharp dispute as to what happened next. According to Leach, defendant became agitated and started to pace from side to side. Defendant then pushed Leach out of the way in an effort to get to Little and the keys. Leach warned defendant that he would be placed under arrest if he pushed him again. Nonetheless, defendant pushed Leach again. Leach advised defendant that he was under arrest and attempted to handcuff him. A struggle then ensued. Leach grabbed defendant by the throat and defendant had his hands around Leach's head and face. As they struggled, Leach managed to get defendant back to his patrol car. Because defendant continued to resist, Leach tried to contain him by placing him in the corner between the open front door and the patrol car.
Ferguson noticed the struggle in her rearview mirror. She immediately exited her vehicle with her PR24 baton in hand. She approached the two men and saw that Leach had secured defendant's left wrist. As she attempted to place the baton between defendant's arm and body, defendant seized it, "ripped" it out of her hands and threw it. The baton passed approximately six inches away from the left side of her head. Ferguson immediately drew her service revolver. Ferguson ordered defendant to put his hands behind his back. Defendant replied, "Shoot me bitch, shoot me." Eventually, defendant was subdued.
Defendant testified that he never touched Leach until, without provocation, Leach grabbed his throat and was attempting to overpower him. Defendant was trying to retrieve the keys from Little, when Leach "grabbed [him] by [his] wrist and started pushing [him] back." After Leach pushed him in the door of the patrol car, Ferguson's baton made contact with his throat. He felt pain and discomfort and instinctively reached for the object. He pulled the baton away from his throat and threw it away. He denied swinging or throwing the baton at anyone. He never even saw Ferguson approach.
Defendant presented expert testimony to demonstrate that Ferguson's use of the baton was inappropriate. The expert discussed how the baton was a deadly weapon and its use could cause an individual to feel the need to protect himself.
During deliberations, the jury sent out the following written question, "for what reason does defendant need glasses?" After discussing with counsel his proposed answer to that question, the judge told the jury, "[T]he reason for which the defendant wears glasses has not been testified to, and therefore, it's not in this case." Defense counsel objected to this answer arguing that the jury would assume they "can't even consider the fact that [defendant's] glasses were knocked off because it's irrelevant because [they] don't have the information."
Defendant was convicted of fourth degree resisting arrest, N.J.S.A. 2C:29-2a; and second degree disarming of Officer Ferguson, N.J.S.A. 2C:12-11b. He was acquitted of two related counts of aggravated assault upon Leach and Ferguson. The State moved that defendant be sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-6e, 2C:44-3a and 2C:43- 7a(3). The judge granted the motion and imposed an extended twelve-year term on the conviction for disarming a law enforcement officer and a concurrent one-year term on the ...