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State of New Jersey v. Michael Blacknall

July 1, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL BLACKNALL, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-08-1722.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 8, 2011

Before Judges Wefing, Payne and Koblitz.

Defendant, Michael Blacknall, was convicted of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. He received a mandatory extended-term sentence of ten years on the assault conviction. The remaining convictions were merged. The judge found aggravating factors 3 (the risk of commission of another offense), 6 (the extent of defendant's prior record) and 9 (the need for deterrence), N.J.S.A. 2C:44-1a(3), (6) and (9), as well as mitigating factor 5 (the victim induced or facilitated the crime), N.J.S.A. 2C:44-1b(5). The aggravating factors were found to substantially outweigh the mitigating factors.

Defendant has appealed his conviction and sentence, raising the following arguments:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S QUALIFICATION OF A STATE'S FACT WITNESS AS AN EXPERT IN "CUTS" EVEN THOUGH NEITHER PARTY PROFFERED HER AS AN EXPERT, THERE WAS NO HEARING, NO EXPERT WITNESS REPORT, NO NOTICE, AND NO OPPORTUNITY TO RESPOND WITH A DEFENSE EXPERT.

POINT II THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE VAGUE, ERRONEOUS, AND IMCOMPLETE INSTRUCTION ON THE LAW OF EXPERT WITNESSES. (Not Raised Below)

POINT III THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY PREJUDICIAL HEARSAY EVIDENCE.

POINT IV THE DEFENDANT'S RIGHT OF CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING BARRING THE DEFENDANT FROM CROSS-EXAMINING AND IMPEACHING THE STATE'S KEY WITNESS ABOUT HIS BIAS AND EXPECTATIONS OF LENIENCY ARISING FROM A HISTORY OF PROBATION VIOLATIONS IN THE CONTEXT OF HIS PENDING VOP SENTENCE. POINT V THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF NEGLIGENTLY CAUSING BODILY INJURY WITH A DEADLY WEAPON. (Not Raised Below)

POINT VI THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON EACH AND EVERY ELEMENT OF THE CRIME OF AGGRAVATED ASSAULT. (Not Raised Below)

POINT VII THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.

POINT VIII THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO CONDUCT A PROPER INQUIRY IN RESPONSE TO THE DEFENDANT'S MOTION TO PROCEED PRO SE. (Not Raised Below)

POINT IX THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS.

POINT X THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE MISINFORMATION HE RELIED ON IN MAKING HIS DECISION TO REJECT THE PLEA OFFER.

POINT XI THE SENTENCE IS EXCESSIVE.

A. TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

We affirm.

I.

The record discloses that, during the evening of April 24, 2007, a fight took place between defendant and Danny Rosales over Doreen Martin, a woman who was presently Rosales's girlfriend and had previously been defendant's girlfriend. The fight was witnessed by Donald Martin, Doreen's brother and a nephew, Richard Lane. During the course of the fight, Rosales fell to his knees, scraping them. Additionally, he sustained injuries to his scalp, nose and lip. The fight ended when the combatants erroneously thought the police had arrived on the scene. After calling 9-1-1, Rosales was taken to Riverview Hospital by Red Bank police officer, Beau Broadley, where he was treated by physician's assistant Nilla DeFazio, who stitched the nose and lip wounds and utilized three staples to close the scalp wound. As a result of the fight, a complaint with the police was filed by Rosales.

At trial, the parties sharply contested who had commenced the fight and whether a knife or other sharp object had been utilized by defendant to inflict the wounds on Rosales. Defendant, who represented himself with the assistance of backup counsel, claimed that Rosales incited the fight and that noweapon had been used. Rosales testified that he saw defendant reaching into his pocket and pulling out something metal which he placed between his fingers, but he did not know what the object was. In statements to the police and at the hospital, he stated that the object was a knife.

As previously stated, defendant was convicted by the jury, after a relatively long period for deliberation and an initial deadlock, of aggravated assault with a deadly weapon, possession of a weapon for an unlawful purpose ...


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