On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-1914.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2011 - Decided
Before Judges Wefing, Baxter and Koblitz.
Defendant Christopher H. Blank was convicted of disarming a police officer and shooting her three times, shooting another officer in his bullet-proof vest and shooting near the head of a third police officer as he tried to arrest defendant on an outstanding warrant. Defendant was charged in Atlantic County Indictment No. 06-08-1914 with three counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) and (2) (counts one, two and three); three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts four, five and six); three counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (counts seven, eight and nine); first-degree disarming a law enforcement officer, N.J.S.A. 2C:12-11 (count ten); third-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count eleven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count twelve); and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count thirteen).
After trial, the jury found defendant guilty of counts one through twelve, and after defendant waived his right to a jury trial, the court found defendant guilty of count thirteen. The court merged several counts and sentenced defendant on counts one, two, three and thirteen to an aggregate extended term of eighty-five years with an eighty-five percent parole bar under the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2. Defendant raises numerous issues regarding the fairness of his trial and the length of the sentence imposed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The police officers testified to the following facts. A car cut in front of Egg Harbor Police Officer Christopher Leary's patrol car just after midnight on July 13, 2006. Leary recognized defendant as a passenger in the car and was aware of an outstanding warrant for his arrest for possession of stolen construction tools. Leary executed a "high risk stop" by ordering the driver to turn off the car and both the driver and passenger to put their hands out through the windows. Leary then ordered defendant to get out of the car and to put his hands on his head. As defendant was getting out of the car, Egg Harbor Police Officer Clear Constantino arrived on the scene to serve as back-up to Leary. Upon seeing that Leary was executing a high-risk stop and that his gun was drawn, Constantino also drew her gun and pointed it at defendant.
Leary ordered defendant to keep his hands on his head, walk backwards toward the sound of Leary's voice and, once he was in front of Leary, to get on his knees and cross his feet. Defendant was compliant up to this point, although he repeatedly asked Leary, as Leary testified, "[w]hy all this caution?"
After exiting the car, defendant went down on his knees but would not cross his feet. Leary then holstered his weapon and attempted to handcuff defendant. After Leary cuffed one of his hands, defendant began to resist and would not allow his other hand to be cuffed. The officers hit and kneed defendant in an effort to subdue and handcuff him. Although Constantino sprayed defendant with pepper-spray, defendant continued to struggle. Defendant eventually broke free and ran to the side of an abandoned house. The officers ran after defendant and caught up with him in the yard of the abandoned house.
After the police caught up with defendant, a struggle ensued. Leary put his arm around defendant's neck in an attempt to secure him until additional back-up arrived. Just as Leary had gotten defendant in a choke hold, Constantino shouted that defendant had her gun, which he had taken from her holster.
Defendant shot Constantino three times beneath her bullet-proof vest, once in her right side into her abdomen and twice in her right thigh. Leary released defendant in order to draw his own weapon, but he was immediately shot by defendant into his bullet-proof vest covering his chest. Leary yelled for Constantino to take cover, and both officers ran from the area to wait for help to arrive.
After shooting at Leary and Constantino, defendant ran away and encountered Egg Harbor Police Officer William Loder, who was on patrol and had responded to the scene. Loder shone a spotlight on defendant and ordered him to stop and identify himself. When defendant refused, Loder repeatedly ordered defendant to show his hands. Defendant did not respond, headed toward the woods and then fell to the ground. When defendant got up, he pointed a gun at Loder. Loder shot at defendant five times, hitting him once in the arm. Defendant then shot at Loder, narrowly missing his head. Defendant's gun jammed after defendant fired once at Loder. Defendant then discarded the gun and ran into the woods.
Police officers, SWAT teams, and K-9 officers combed the area in search of defendant. Egg Harbor Police Officer James Knight testified that his K-9 dog led him to defendant, and upon locating him, defendant began "fighting [and] punching the dog." Before police subdued him, defendant received a serious dog bite.
Defendant testified that after the officers caught up with him at the house, they handcuffed him to a fence and kicked and beat him to such a degree that he did not think he would survive. Defendant said he was hit on the head with a metallic object and fell to the ground. Defendant testified that while on his knees he found a gun on the ground, picked it up and fired at the officers. After shooting at the officers, defendant claims that he shot the handcuffs off of the fence, broke free and jumped over the fence.
Defendant testified that he fired one shot at Loder in self-defense and then discarded the gun. Defendant maintained that after he ran away from Loder, he was handcuffed and hoisted over a fence where he was beaten by several officers and attacked by a dog.
Defendant was taken to the hospital and treated for his injuries. On the way to the hospital, the police questioned defendant about the location of the gun, which the police later found in the woods.
Defendant raises the following arguments on appeal:
THE TRIAL COURT ERRED IN FAILING TO CHARGE ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER TO THE JURY. (Not Raised Below)
THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY ON THE DUTY OF AN OFFICER TO INFORM AN ARRESTEE OF THE CHARGES CONTAINED IN AN ARREST WARRANT AS THIS DUTY HAD THE CAPACITY TO AFFECT THE REASONABLENESS OF THE DEFENDANT'S RESORT TO SELF-DEFENSE.
THE TRIAL COURT ERRED IN DENYING THE JURORS PERMISSION, DURING DELIBERATIONS, TO RE-ENACT THE REMOVAL ...