[185 NJSuper Page 73] This opinion formally embodies my oral reasons for denying defendant's request that I not charge "recklessness" as an alternative culpability requirement in this case in which defendant is charged with committing an aggravated assault "knowingly". The issue is significant and yet unanswered by
appellate authority since enactment of the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., which became effective on September 1, 1979.
Defendant was indicted for resisting arrest by punching police officers Byrne and Kochanski, in violation of N.J.S.A. 2C:29-2, and for aggravated assault upon Officer Kochanski, in violation of N.J.S.A. 2C:12-1(b)(5)(a). Giving the State the benefit of all legitimate inferences, it appears that Byrne and Kochanski, while in uniform, responded to a call indicating that a car was double-parked near the intersection of Kennedy Boulevard and 33rd Street in Bayonne during the early morning hours of July 3, 1981. They found defendant asleep at the wheel and detected an odor of alcohol in the vehicle. While Byrne was leaning in the car and trying to awaken defendant, the officer was punched in the forehead. As a result defendant was placed under arrest for assault and was so advised by Byrne. After defendant was removed from the vehicle he punched Kochanski, thereby causing bodily injury. He subsequently made various other physical efforts to avoid detention.
N.J.S.A. 2C:29-2, resisting arrest, deals with purposeful conduct, but N.J.S.A. 2C:12-1(b)(5)(a) provides that a person is guilty of aggravated assault if he "commits a simple assault . . . upon any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority." "Simple assault" is defined in N.J.S.A. 2C:12-1(a) which provides, in part, that "a person is guilty of assault if he (1) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another." (Emphasis supplied). The issue raised deals only with whether the "reckless" culpability state can be charged with respect to the assault count.
The decision to charge "recklessness" is critical in this case because the "defense" of intoxication and justification of self-defense are advanced. Those defenses may generally be employed to negative an element of the offense, including culpability. See N.J.S.A. 2C:1-13, 1-14(h); State v. Galiyano,
178 N.J. Super. 393 (App.Div.1981), certif. den. 87 N.J. 424 (1981). However, "when 'recklessness' establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial". N.J.S.A. 2C:2-8(b). See State v. Stasio, 78 N.J. 467 (1979). Moreover, as the case involves the charge of aggravated assault by causing bodily injury to a law enforcement officer in uniform, N.J.S.A. 2C:12-1(b)(5), occurring prior to September 24, 1981, the statutory concept of "imperfect self-defense" is involved. See N.J.S.A. 2C:3-9(b) deleted by L. 1981, c. 290 § 6. See, also State v. Powell, 84 N.J. 305, 313 (1980). Thus, even if defendant's beliefs about the use of force at the time were unreasonable, they could still negate a purposeful or knowing culpability requirement but not one for which recklessness or negligence may suffice.*fn1
Count two of the indictment charges the defendant "did knowingly cause bodily injury, to wit, damage to the eye of patrolman Kochanski of the Bayonne Police Department while the said officer was acting in the performance of his duties, while in uniform . . . ." (Emphasis supplied). Despite the alleged culpability state, I shall also charge "recklessness" as an alternative culpability requirement. The general requirements of culpability are set forth in N.J.S.A. 2C:2-2. They include purposeful, knowing, reckless and negligent conduct. N.J.S.A. 2C:2-2(c)(2) provides:
When the law provides that a particular kind of culpability suffices to establish an element of an offense such element is also established if a person acts with a higher kind of culpability.
N.J.S.A. 2C:2-2(e) further states:
When the grade or degree of an offense depends on whether the offense is committed purposely, knowingly, recklessly or ...