On certification to the Superior Court, Appellate Division, whose opinion is reported at 144 N.J. Super. 25 (1976).
For affirmance -- Justices Sullivan, Pashman and Handler. For modification -- Chief Justice Hughes and Justices Clifford and Schreiber. Pashman, J., concurring. Justice Sullivan and Justice Handler join in this opinion. Clifford, J., dissenting. The Chief Justice and Justice Schreiber join in this opinion.
The members of the Court being equally divided, the judgment of the Appellate Division is affirmed.
PASHMAN, J., concurring. Certain comments made in the opinion dissenting from today's affirmance by an equally divided court of the Appellate Division's judgment upholding defendant's conviction on three charges of atrocious assault and battery compel me to state the basis of my vote to affirm. [76 NJ Page 321] As is recounted in detail in Judge Larner's opinion below, 144 N.J. Super. 25 (App. Div. 1976), each of defendant's victims was "wounded" in the literal sense of that term since there was in each case "an injury to the body consisting of a . . . breaking of the skin . . . by a hard or sharp instrument forcefully driven or applied." Webster's Third New International Dictionary (1971) at 2638. Once the "wounding" element of the offense proscribed by N.J.S.A. 2A:90-1 has been established, the totality of the circumstances surrounding the assault and battery may be examined in order to ascertain whether the particular conduct may properly be considered to be "atrocious." In my view, to so qualify the viciousness of the act must be of a different order of magnitude than that ordinarily and necessarily involved in the "simple" assault and battery. The primary measure of viciousness is the character of the assault -- i.e., the brutal quality or outrageously cruel nature of the defendant's act. A related factor to be included in the evaluation of viciousness is the substantiality of the injuries inflicted. The factors stand in an inverse relationship -- the more heinous the assaultive act, the less substantial must the injuries be to support a conclusion that the requisite element of viciousness exists. Similarly, less outrageous conduct may nevertheless constitute an "atrocious" assault and battery where the ensuing injuries are significant. I find this analysis to be implicit in State v. Edwards, 28 N.J. 292 (1958). There the victim of a beating which we found to be "savagely brutal" sustained only bruises and scratches which were "superficial" in the medical sense of that term. We held that when considered in conjunction with the nature of the assault, the injuries were sufficiently serious to constitute, in the eyes of the law, the "substantial injuries" necessary to warrant a conviction for atrocious assault and battery.*fn1 See 28 N.J. at 299.
In light of the vile and contemptible nature of defendant's conduct, the injuries sustained by the victims in the instant case, although not serious, are nevertheless "sufficiently substantial" to warrant a conviction under N.J.S.A. 2A:90-1. These victims had their skin punctured, bled and ran the risk of infection. As amply demonstrated in the opinion below, defendant's assaults were part of a sinister and diabolical scheme whereby he tricked innocent persons into believing he was performing legitimate medical tests upon them. Moreover, he overbore the will of his victims by asserting that he had legal authority to force them to undergo examination. Using this Gestapo-like tactic on uneducated victims created an atmosphere of intolerable oppressiveness, which made these assaults outrageously cruel. I agree wholeheartedly with the observations of the Appellate Division that in the totality of the circumstances, the nature of defendant's conduct was exceptionally monstrous:
In each case the combination of the extraordinarily vicious character of defendant's fictitious pose and the potential effect upon the victim's health by the unwarranted invasion of his or her body by a medical or other instrument amply demonstrates outrageous and unhumanly cruel conduct. * * * [T]he aggravated element of the
assault in this case lies in the vicious or evil nature of the attack, which is as abhorrent as one which is violent in character.
[144 N.J. Super. at 30]*fn2
Another factor discounted by my dissenting Brothers is the psychological harm which these victims may have suffered, particularly those who were informed that they indeed had cancer. This damage, considered in conjunction with the physical wounding of the victims, makes this case much more than a simple assault and battery.
The loathsome character of defendant's conduct so increases the heinousness component of the viciousness equation that the physical injuries sustained by the three victims are sufficient to supply the harmful effect necessary to justify a conviction for atrocious assault and battery.
CLIFFORD, J., dissenting. Defendant's convictions for atrocious assault and battery are the product of judicial overkill*fn1 and should not be upheld. A diligent search of this record will not ...