STATE OF NEW JERSEY v. BRIAN FOWLKES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3639-06T43639-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN FOWLKES,

Defendant-Appellant.

__________________________________

 

Argued September 30, 2009 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 05-09-1271.

Daniel V. Gautieri, Assistant Deputy

Public Defender, argued the cause for

appellant (Yvonne Smith Segars, Public

Defender, attorney; Mr. Gautieri, of

counsel and on the brief).

Simon Louis Rosenbach, Assistant Prosecutor,

argued the cause for respondent (Bruce J.

Kaplan, Middlesex County Prosecutor,

attorney; Mr. Rosenbach, of counsel and on

the brief).

PER CURIAM

Defendant Brian Fowlkes was indicted and charged with crimes against a corrections officer. A jury found defendant guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), purposely, knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causing serious bodily injury. The jury acquitted him of knowingly and unlawfully possessing a weapon under circumstances not manifestly appropriate for its use, N.J.S.A. 2C:39-5d, and of possessing a weapon with the purpose of using it unlawfully against the person or property of another, N.J.S.A. 2C:39-4d. Defendant was sentenced to an eight-year term of imprisonment subject to terms of parole ineligibility and supervision mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. Appropriate fines, penalties and assessments were imposed.

On appeal defendant claims that errors in the jury charge not raised at the time of trial require reversal of his conviction. Although the jury instruction on self-defense was less than complete, we conclude that defendant was not prejudiced by the omissions and affirm.

The testimony presented at trial was as follows. On July 29, 2005, defendant was an inmate in the Middlesex County Corrections Facility and housed on the upper tier of "C-Pod." Mark Whitlock, a corrections officer and the victim of the aggravated assault, was assigned to that tier. Whitlock is about six inches taller and over one hundred pounds heavier than defendant. Prior to that day, defendant had never dealt with Whitlock.

Each inmate in C-Pod is allowed to leave his cell for one hour a day. No two inmates are allowed to use their hour at the same time. By 7:15 a.m. on July 29, breakfast had been served and the sergeant had made the first of his two daily tours of C-Pod. Whitlock asked defendant if he wanted to use his hour. If defendant had declined, he would not have been given an opportunity later in the day.

Defendant accepted Whitlock's offer and went to the supply closet to get materials to clean his cell. The supply closet was in the same area as the officer's desk, and relative to defendant's cell, the desk and closet were at the opposite end of the tier. Defendant took a broom and a dust pan and went back to his cell. When he finished cleaning, he put the equipment back in the closet.

Before returning to his cell, defendant asked Whitlock if he could use the remainder of his hour during the evening so that he could speak to his lawyer. According to Whitlock, he informed defendant that he did not want to give the other inmates the impression that he was giving defendant preferential treatment. But according to defendant, Whitlock told him that he did not care whether defendant had to speak to his attorney or not.

Defendant said he wanted to speak to the sergeant, but Whitlock told him he would have to wait until the sergeant returned to C-Pod later that day. In defendant's view, Whitlock was indifferent to his need to consult with his lawyer and wrong not to call the sergeant when defendant needed him. Although defendant knew the sergeant would return before it was time for him to call his lawyer, he believed his disagreement with Whitlock warranted immediate attention.

In any event, defendant went to his cell for a moment but then returned to the outer area of the tier, picked up a garbage can and threw it. Defendant acknowledged that he did that because he was "mad," but he denied throwing the can at Whitlock. Whitlock thought defendant threw the trash can toward him.

An officer on the lower tier of the C-Pod, Clint Giles, heard the incident and yelled to Whitlock to see if everything was alright. Whitlock indicated it was but said he was going to call the sergeant.

According to defendant, Whitlock got up from the desk and made the call. After that Whitlock put on his gloves and paced.

By Whitlock's account, after defendant threw the trash can he returned to the supply closet, removed the broom and, holding it up like a sledge hammer, approached Whitlock. Concerned that if defendant moved into a wider space near the stairway "he would have pretty much a free swing, pretty much like a baseball bat for anyone coming up the[] stairs," Whitlock responded. He "stepped in toward" defendant, placed his hand on defendant's shoulder, spun him around and pinned him against the wall. Whitlock then felt two blows land on the left side of his head.

Officer Giles, watching from below, saw defendant with a broom raised above Whitlock's head. Giles also saw Whitlock try but fail to prevent defendant from striking him in the face with the broom.

Defendant's account was different. Although he acknowledged walking away from his cell and approaching the area of Whitlock's desk, he testified that he did not have the broom and that the supply closet was kept locked. Defendant explained:

And I went right there where I went to that area, and I stood there, and there's a railing right there. And I just leaned on the railing waiting for the sarg to come up the steps, because you could see them when they [are] getting ready to come on the unit. And [Whitlock's] still walking, and while he's walking, he's telling me to get away from cell door 13, but I wasn't by the door. I was just leaning on the railing right there by the steps, waiting for the sarg to come up.

So, as we were talking, we had an exchange. We're exchanging words back and forth, and he still is walking up on

me . . . and I'm standing right here, and he rushed me and tried to grab me up, like try to put me in a choke hold. And once he did that, I threw a punch at him, and we began fighting. And then we be probably fighting for like a good five, ten minutes. Like it happened real fast. We begin fighting, and then the other police respond, and they run up, snatch me up, throw me down, put the cuffs on me, and then beat me up, take me to the cell, beat me up.

In other portions of defendant's testimony, he suggested that Whitlock managed to place him in a choke hold. The prosecutor asked, "So he put you in a choke hold?" Defendant responded, "No, he didn't, but he grabbed me up and tried to put me in a choke hold. He didn't do that."

Defendant provided no further details about the force Whitlock employed that led defendant to perceive the action as an effort to place him in a choke hold. Questioned as to whether Whitlock struck him, hit him or punched him, he gave the same response: "He put his hands on me." He explained, "Once he put his hands on me, I felt like I had to defend myself." According to defendant, when Whitlock tried to grab him, he, defendant, "swung a punch" and they began fighting.

Eladio Echarte-Vera, a resident of C-Pod, testified that he heard defendant ask to see the sergeant and Whitlock refuse that request. Echarte-Vera also heard Whitlock direct defendant to move and saw Whitlock grab defendant's hand. When defendant did not submit, Whitlock punched defendant. After that, he saw defendant throw only one punch that missed.

Whitlock does not recall what happened immediately after he felt the blows to his head. He remembers being on his hands and knees and looking down at blood on the floor when he noticed that other officers were trying to restrain defendant. Whitlock got up and "stumbled over" to the group, and he put his "right knee on [defendant's] right shoulder blade to help pin him down."

Defendant estimated that he and Whitlock fought for about five to ten minutes before other officers came to the tier, "snatched" him up, threw him down and put cuffs on him. Officer Arthur Brown was one of the officers who restrained defendant.

When Officer Brown arrived on the scene, he saw Whitlock bent over and attempting to fend off defendant's blows. Brown did not see a broom; defendant was using his hands. Brown admitted that the officers tackled defendant to restrain him, and he said that Whitlock, who was bleeding, came to their assistance. According to Brown, he told Whitlock to get back. Brown and other officers took defendant to his cell.

William Torres, a resident of C-Pod, saw the officers dragging defendant to his cell. He later heard defendant yelling, "They're beating me up." Defendant said Whitlock participated in that beating.

Whitlock suffered disabling injuries. His wounds required sutures. His cheekbone was fractured in three places, and surgery to insert titanium plates was required to hold that bone together. In addition, Whitlock's eye socket was fractured and blunt trauma to his optic nerve affected his vision. His vision was partially but not wholly restored through a second operation. As a consequence of the injuries he sustained, Whitlock was retired as disabled.

Defendant was treated for a deep laceration that split his ear lobe. He also had cuts on his right cheek and had some red marks on his left shoulder and back.

The jurors rejected defendant's claim of self-defense and found him guilty of aggravated assault. They found defendant not guilty of the weapons offenses, which the State sought to establish through the evidence of defendant's acquisition and use of the broom as a weapon.

Defendant raises four issues on appeal:

I. The Judge's charge on Self-defense was misleading and incomplete, as the judge failed to: (1) Inform Jurors when force by a guard against an inmate would be "unlawful" and (2) Instruct Jurors regarding "non-deadly Force."

(nOT rAISED bELOW).

II. The judge's Charge Regarding Lesser

Included Offenses Improperly Suggested that such lesser offenses WERE NOT EQUAL WEIGHT TO OFFENSES charged in the indictment, and may have led jurors to reject the lesser-included offenses. (nOT rAISED bELOW).

III. The judge erred in failing to provide

the jurors with a limiting instruction that they were not to consider that Fowlkes was incarcerated at the time of the offense as proof of his propensity to commit the crime at bar. (nOT rAISED bELOW).

IV. Fowlkes's sentence should be reduced Because the Court Improperly Failed to consider the victim's role in provoking the offense.

I

Defendant has two objections to the jury instruction on self-defense: that the charge did not include an adequate description of an inmate's right to defend himself against a threat of harm posed by a prison guard's use of force; and that the charge given was improperly limited to the right to use deadly force in self-defense. These objections were not raised before or after the judge instructed the jurors. Accordingly,

defendant is not entitled to relief unless there is error and that error is plain. R. 1:7-2; R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005).

To determine whether there is error, we must read the charge as whole. Torres, supra, 183 N.J. at 564. Error in a jury charge is plain when "'[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant [is] sufficiently grievous . . . to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Ibid. (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); see State v. Ingram, 196 N.J. 22, 49 (2008) (error is harmless when it does not give rise to a reasonable doubt about the outcome). Errors relevant to a defense in a criminal case are generally, but not always, viewed as having that capacity. Id. at 564; but see State v. Doss, 310 N.J. Super. 450, 456-60 (App. Div.) (assuming that self-defense would be available to an inmate charged with assaulting a guard but concluding that the evidence did not support the claim in that case), certif. denied, 155 N.J. 589 (1998).

A

Defendant's first objection to the instruction on self- defense is that the judge failed to give the jurors an adequate description of the circumstances under which an inmate has a right to defend himself against a threat of harm posed by a corrections officer. We agree that the instruction on this point of law was incomplete but the legal principles omitted did not favor defendant's claim or prejudice his right to have the jury consider the evidence in light of the law.

The basic principle of self-defense is stated in N.J.S.A. 2C:3-4a. A person is justified in using force against another when the person "reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by" the other. N.J.S.A. 2C:3-4a (emphasis added). Under this statute, the right to use defensive force depends, in the first instance, on whether the force resisted is "unlawful."

This statutory language is included in the model jury charge on self-defense, and the judge delivered that portion of the charge. Thus, the jurors were directed that defendant had a right to use defensive force against Whitlock if defendant "reasonably believed" that his use of defensive force was necessary for the purpose of protecting himself against the use of "unlawful force" by Whitlock.

Defendant's argument is that the judge did not provide an adequate description of the force that is "unlawful force" when employed by a corrections officer against a prisoner. The term "unlawful force" is statutorily defined. It "means force, including confinement, which is employed without consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense . . . not amounting to a privilege to use the force." N.J.S.A. 2C:3-11a. The commentary prepared by the drafters of the penal code explains: "The definition [of 'unlawful force'] is designed to include in the force against which it is lawful to defend any use of force which (1) is employed without the consent of the party against whom it is directed and (2) is not affirmatively privileged under the Code [see N.J.S.A. 2C:3-1 to -11] or the laws of torts." New Jersey Criminal Law Revision Commission, The New Jersey Penal Code, Volume II Commentary at 84 (1971) (hereinafter Commentary).

The judge delivered the model jury charge on "unlawful force," which includes an abbreviated version of the statutory definition. The jury was informed that "[u]nlawful force is defined as force used against a person without the person's consent in such a way that the action would be a civil wrong or criminal offense." Defendant contends that more was required, because, without a further explanation, the jurors could have assumed that "any" force employed by a corrections officer against a prisoner, regardless of its degree or necessity, is lawful.

We question whether these jurors who were instructed on aggravated and simple assault and self-defense but not on a prison guard's authority to use force against prisoners in furtherance of his duties would conclude that a prison guard uses lawful force, without warning, if he rushes, grabs and tries to choke a prisoner. For the purpose of emphasis, we repeat what the jury was told: "The use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person[] on the present occasion." The jurors were also instructed that assault is established by proof that the person attempts to cause or purposely, knowingly or recklessly causes bodily injury, and they were informed that "an action [that] would be a . . . criminal offense" is unlawful force. The instruction did not describe any limitation on a prisoner's right to use defensive force to protect himself from an assault by a prison guard.

Despite our disagreement with the assumption that underlies defendant's claim of prejudicial error, we recognize our obligation to ensure that a jury instruction conveyed the legal principles relevant to a defense. State v. Rodriguez, 195 N.J. 165, 174-75 (2008). Accordingly, we consider the law governing the lawfulness of force used by prison guards in order to identify the legal principles that should have been but were not included.

These are the principles that were not covered. Because force that is "affirmatively privileged under the Code [see N.J.S.A. 2C:3-1 to -11]" is not unlawful force, Commentary, supra, at 84; see N.J.S.A. 2C:3-11a, any force a prison guard uses that would be justifiable in defense of self, others or property, or justifiable to prevent a crime, is lawful. N.J.S.A. 2C:3-4 to -7. In addition to those justifications, N.J.S.A. 2C:3-8 permits a prison guard to use force in furtherance of his duties. See Commentary, supra, at 94 (noting that N.J.S.A. 2C:3-8 "is intended to include . . . wardens or other authorized officials of correctional institutions").

N.J.S.A. 2C:3-8 provides:

The use of force upon or toward the person of another is justifiable as permitted by law or as would be a defense in a civil action based thereon where the actor has been vested or entrusted with special responsibility for the care, supervision, discipline or safety of another or of others and the force is used for the purpose of and . . . to the extent necessary to further that responsibility, unless:

a. The code or the law defining the offense deals with the specific situation involved; or

b. A legislative purpose to exclude the justification claimed otherwise plainly appears; or

c. Deadly force is used, in which case such force must be otherwise justifiable under the provisions of this chapter.

In sum, N.J.S.A. 2C:3-8 provides a defense for the use of force, short of deadly force, when the justifications for defense of self, others, property or law enforcement, N.J.S.A. 2C:3-4 to -7, are not in issue. N.J.S.A. 2C:3-8a, c. It applies when a corrections officer's use of force is permitted by law, N.J.S.A. 2C:3-8, and when the force is used "for the purpose of and . . . to the extent necessary to further" the corrections officer's responsibilities "for the care, supervision, discipline or safety" in the institution. N.J.S.A. 2C:3-8. Because the force is justified, it does not give rise to a right of self-defense. See Commonwealth v. Williams, 392 A.2d 786, 788 (Pa. Super. Ct. 1978) (applying similar justification statutes).

With respect to corrections officers, the relevant law referenced in N.J.S.A. 2C:3-8 is "correctional law." See Commentary, supra, at 94 (noting that N.J.S.A. 2C:3-8 is patterned on Model Penal Code 3.08 but differs from 3.08 by relying on privileges for the use of force recognized in other bodies of law, such as correctional law); cf. Model Penal Code 3.08 (providing that a corrections officer's use of force is justifiable when it is "necessary for the purpose of enforcing the lawful rules or procedures of the institution").

The Department of Corrections' regulations

authorize officers to "use appropriate means to enforce correctional facility rules and regulations," N.J.A.C. 10A:3-3.1(a); describe permissible physical force, N.J.A.C. 10A:3-3.1(a)(2); and indicate when the use of force and deadly force is permissible, N.J.A.C. 10A:3-3.2. Force, short of deadly force, is an appropriate means when it "is objectively reasonable under the totality of the circumstances as known by the custody staff member at the time" and employed in a degree and manner "reasonably necessary to accomplish [a] law enforcement objective." N.J.A.C. 10A:3-3.2(a)-(b). The use of physical force measures such as "wrestling a resisting individual to the ground, using wrist locks or arm locks, striking with the hands or feet, or other similar methods of hand-to-hand confrontation," N.J.A.C. 10A:3-3.3(b)(1) is expressly authorized when necessary for a variety of purposes, including to protect persons and property, prevent or quell a disturbance, "to overcome an individual's physical resistance to the exertion of the custody staff member's authority, or to protect persons or property." Ibid. Moreover, "[i]f the individual resists, the [officer] may increase the degree of force as necessary to accomplish the law enforcement objective but as soon as the individual submits, the [officer] shall reduce the degree of force used." N.J.A.C. 10A:3-3.2(b); see N.J.S.A. 2C:3-4b(2)(b)(ii) (providing that a public officer in the performance of his duties may assess the need for deadly force in self-defense without abandoning his duty because of actual or threatened resistance).

If these legal principles had been included in the instruction, the jurors would have been advised that Whitlock's use of force was lawful, and, therefore, could not be resisted by defendant, if it was objectively reasonable under the totality of the circumstances known to Whitlock and employed for the purpose of and in a degree and manner "reasonably necessary" to fulfill his responsibilities. See N.J.A.C. 10A:3-3.2(b); N.J.S.A. 2C:3-8. The jurors would also have been told that Whitlock could lawfully increase the intensity of the force if necessary to overcome resistance and that he was entitled to defend himself if defendant's resistance posed a threat to him. Finally, the jurors would have been told that defendant was entitled to defend himself against Whitlock's actions only if he reasonably believed it was immediately necessary to protect himself from force exceeding what was necessary to restore order and gain his compliance.

It is apparent that the omitted legal principles did not favor defendant. Courts of other jurisdictions that have recognized justifications for an inmate's use of defensive force against prison guards have stressed the significance of "the fact that the guard, by the nature of his job, is himself privileged to apply force to inmates when necessary to preserve order in the institution." Commonwealth v. Martin, 341 N.E.2d 885, 892 (Mass. 1976) (noting the relevance of the guard's authority to use such force to the reasonableness of the inmate's belief that he is justified in using force against the prison guard, and concluding that action taken by guards to hold an inmate in custody would not be a proper occasion for use of defensive force); see, e.g., United States v. Grimes, 413 F.2d 1376, 1379 (7th Cir. 1969) (recognizing an inmate's right to defend another subjected to an assault by an officer but observing that the "decision in no way limits the power of prison officials to restrain or subdue unruly inmates, to carry out all reasonable orders necessary for the maintenance of prison discipline, or to cope with attempted assaults or escapes by prison inmates"); Williams, supra, 392 A.2d at 787-88 (concluding that an inmate who refused to obey an order to return to his cell could not defend himself against officers who carried him to his cell).

We have no doubt that the jurors would not have returned a verdict more favorable to defendant if they had been directed to consider the foregoing legal principles. Viewing the evidence and inferences in the light most favorable to defendant, Whitlock did not use physical force until defendant, who had just thrown a trash can in anger, argued with and disregarded his order to move away from cell 13. There was no evidence that Whitlock used force prior to defendant's defiance of his order.

On these facts, the jury would have been instructed that defendant had a right to resist that initial use of force a rush, a grab and an attempt to put him in a choke hold only if the force was not employed in furtherance of Whitlock's responsibilities or was employed in a degree and manner not "reasonably necessary" to fulfill his responsibilities under the circumstances. With respect to any subsequent force used by Whitlock, the jurors would have been directed that Whitlock could lawfully increase the degree of force employed as reasonably necessary to overcome and defend himself against defendant's resistance and that defendant could not resist that force unless it exceeded what was necessary.

On the evidence presented in this case, the instruction that was given, which did not outline Whitlock's authority to use force and its limitations, was more favorable to defendant. Under these circumstances, it is not surprising that defense counsel did not ask the court to elaborate on these points of law; the instruction would have given the jurors additional reasons for rejecting defendant's claim of self-defense, which was supported by very little evidence about the nature of the force Whitlock employed before defendant threw what he admitted was the first punch and even less evidence about any blows Whitlock landed during the struggle that followed. See Doss, supra, 310 N.J. Super. at 460 (discussing the significance of defense counsel's decision to refrain from requesting a charge).

Defendant's contention that the court should have delivered the model jury instruction on the right to resist excessive force used to effectuate an arrest lacks sufficient merit to warrant more than brief comment. R. 2:11-3(e)(2). Preliminarily, defendant was not being arrested. More important, a special instruction on the right to defend oneself against an arresting officer's use of unnecessary force is required because the jury is informed that there is no right to "resist any arrest . . . being made by an officer in the performance of the officer's duties, whether the arrest is legal or illegal, unless that officer uses unlawful force." Cf. Model Jury Charge (Criminal), "Justification-Self Defense, Resisting Arrest" (1988). Contrary to defendant's claim, an instruction on the right to resist excessive force used in an arrest had no relevance here.

B

Defendant also claims that the judge committed plain error by including a portion of the model jury charge addressing deadly force but not addressing non-deadly force. We again disagree.

In pertinent part the instruction provided:

The defendant contends that if the [S]tate proves he used or threatened to use force upon the other person, that such force was justifiably used for self-protection.

Now, the statute reads in part:

The use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person[] on the present occasion.

In other words, self-defense is the right of a person to defend against any unlawful force. Self-defense is also the right of a person to defend against seriously threatened unlawful force that is actually pending or reasonably anticipated. When a person is in imminent danger of bodily harm, the person has the right to use force or even deadly force when that force is necessary to prevent the use against him of unlawful force. The force used by the defendant must not be significantly greater than and must be proportionate to the unlawful force threatened or used against the defendant.

. . . If the force used by defendant was not immediately necessary for the defendant's protection or if the force used by the defendant was disproportionate in its intensity, then the use of such force by the defendant was not justified, and the self-defense claim fails.

There are different levels of force that a person may use in his own defense to prevent unlawful harm. The defendant can only use that amount or degree of force that he reasonably believes is necessary to protect himself against harm. If the defendant is attempting to protect himself against exposure to death or the substantial danger of serious bodily harm, he may resort to the use of deadly force. Otherwise, he may only resort to non-deadly force.

Now, the use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justifiable unless the defendant reasonably believes such force is necessary to protect himself against death or serious bodily harm. . . .

By "serious bodily harm," we mean an injury which creates a substantial risk of death or which causes serious permanent disfigurement or which causes a protracted loss or impairment of the function of any bodily member or organ. . . .

One cannot respond with deadly force to a threat of or even an actual minor attack. For example, a slap or an imminent threat of being pushed in a crowd would not ordinarily justify the use of deadly force to defend against such unlawful conduct. Therefore, you must first determine whether the defendant used deadly force. If you find that the defendant did so, then you must determine if the defendant reasonably believed he had to use deadly force to defend against the unlawful conduct of another.

Now, a reasonable belief is one which would be held by a person of ordinary prudence and intelligence situated as this defendant was. Self-defense exonerates a person who uses force in the reasonable belief that such action was necessary to prevent his death or serious injury, even though his belief was later proven mistaken. Accordingly, the law requires only a reasonable, not necessarily a correct, judgment.

Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. . . .

[Emphasis added.]

Defendant's claim of error is based on the omission of the following:

A person may use non-deadly force to protect (himself/herself) if the following conditions exist:

1. The person reasonably believes (he/she) must use force and

2. The person reasonably believes that the use of force was immediately necessary and

3. The person reasonably believes (he/she) is using force to defend (himself/herself) against unlawful force, and

4. The person reasonably believes that the level of the intensity of the force (he/she) uses is proportionate to the unlawful force (he/she) is attempting to defend against.

[Model Jury Charge (Criminal), "Justification-Self Defense, In Self Protection" (2006).]

Read as a whole, the instruction given adequately addressed the use of non-deadly force. The portion of the charge delivered that we have set forth with emphasis above clearly conveyed that force short of deadly force can be employed to defend against a threat of harm less serious than that required to justify the use of deadly force. The information omitted essentially reiterates what is stated in the instruction that was given. Accordingly, we cannot conclude that this omission amounted to plain error.

II

After review of the record and the arguments presented in support of the issues raised in Points II, III and IV of defendant's brief, we conclude that they lack sufficient merit to warrant any discussion in a written opinion.

Affirmed.

 

The prohibition against resistance of an "illegal" arrest absent use of "unlawful force" is imposed as a matter of public policy. State v. Mulvihill, 57 N.J. 151, 156-57 (1970). Because an arrest involves "confinement" and because N.J.S.A. 2C:3-11a defines "unlawful force" to include "confinement," the exception is necessary. Without it, the general principle would permit resistance of an illegal, i.e., unlawful, arrest regardless of the force employed to effectuate the arrest. See N.J.S.A. 2C:3-4a.

(continued)

(continued)

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A-3639-06T4

January 12, 2010