The novel issue presented is: when may third degree aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)) be submitted to a jury as a lesser offense when a defendant is indicted only for second degree aggravated assault. (N.J.S.A. 2C:12-1(b)(1)).
The court holds that such third degree offense is not a lesser included offense and cannot be submitted to a jury without defendant's consent.
Defendant is charged in one count of the indictment with a second degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1). This statute provides that a person is guilty of second degree aggravated assault if he:
Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury;
The indictment contains two other counts, unlawful possession of a handgun (N.J.S.A. 2C:39-5b) and possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a).
The victim testified that on April 10, 1982, defendant punched her in the neck but she was not injured. Then he got a gun and shot at the victim, but the bullet missed and was never found. The gun was never recovered.
The court determined that there was a rational basis for a verdict convicting defendant of assault, N.J.S.A. 2C:12-1a(1), an included offense. N.J.S.A. 2C:1-8(e). Therefore, this offense was charged as a lesser included offense.
The State requested the court to charge third degree aggravated assault (attempt to cause bodily injury with a deadly weapon) as a lesser included offense to the charge of second degree aggravated assault. Defendant objected to this additional charge, and therefore, the court denied the request.
The jury found defendant not guilty on all counts, but it found defendant guilty of assault.
I write this opinion to record and supplement my reasons for denying State's request to charge the lesser offense.
A person is guilty of third degree aggravated assault if he attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon. N.J.S.A. 2C:12-1(b)(2). Thus, this third degree aggravated assault requires proof of the element ...