On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Matthews and Bachman. The opinion of the court was delivered by Bachman, J.s.c., temporarily assigned.
[194 NJSuper Page 178] A Monmouth County grand jury indicted defendant, charging him with aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) and (2) (Count One), possession of a weapon, contrary to N.J.S.A. 2C:39-4a (Count Two), unlawful possession of a weapon,
contrary to N.J.S.A. 2C:58-3 and 2C:39-5 (Count Three) and unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (Count Four).
A non-jury trial was conducted. The judge found defendant not guilty of Counts Two, Three and Four. As to Count One, he found defendant not guilty of aggravated assault, but found him guilty of what he considered to be a lesser included offense, recklessly creating a risk of widespread danger, contrary to N.J.S.A. 2C:17-2c.
Defendant was sentenced to an indeterminate term in the Youth Reception and Correction Center Complex not to exceed 18 months.
The accusation against defendant was that he fired a shotgun at a member of the Keansburg Police Department who was investigating reports of gun shots in the neighborhood. The police testified that after they arrested him, defendant told them that he and a friend had been throwing "M-80" firecrackers which are apparently firecrackers which make a great deal of noise. It was on the basis of the throwing of the firecrackers that the court found defendant guilty of the "lesser included offense."
The Code of Criminal Justice permits the conviction of a defendant of an included offense; see N.J.S.A. 2C:1-8d which reads as follows:
A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
If the present case is to qualify under this provision, it must be pursuant to 2C:1-8d(1), as an offense ...