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State v. Blackburn

November 5, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES BLACKBURN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-12-1507.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 20, 2010

Before Judges Axelrad, R. B. Coleman and Lihotz.

Defendant James Blackburn appeals from his conviction and sentence. Following a four-day trial, a jury convicted defendant of second-degree aggravated assault as the lesser-included offense of attempted murder, N.J.S.A. 2C:12-1b(1) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5b (count three); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count four); and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count five).*fn1

On May 23, 2008, the court merged count three with count one and sentenced defendant to a nine-year custodial term with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On counts four and six, the court imposed concurrent custodial terms of five years and eighteen months, respectively. On count seven, the court imposed a consecutive custodial term of eight years imprisonment with a five-year parole disqualifier. Appropriate fines and penalties were also imposed.

Defendant asserts the following arguments on appeal:

POINT I

THE JURY INSTRUCTIONS WERE DEFICIENT IN DEFINING "CIRCUMSTANCES MANIFESTING EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE" IN THE CHARGE REGARDING SECOND-DEGREE AGGRAVATED ASSAULT. (Not raised below).

POINT II

THE RECKLESSNESS ALTERNATIVE OF THE SECOND DEGREE AGGRAVATED ASSAULT STATUTE IS UNCONSTITUTIONALLY VAGUE. (Not raised below).

POINT III

THE TRIAL COURT ERRONEOUSLY FAILED TO CHARGE LESSER-INCLUDED OFFENSES. ...


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