On appeal from Superior Court, Law Division, Hunterdon County.
King, O'Brien and Simpson. The opinion of the court was delivered by Simpson, J.A.D.
Defendant appeals from his conviction, after a jury trial, of the third degree crime of aggravated assault (N.J.S.A. 2C:12-1b.(5)(a)); specifically, a simple assault (N.J.S.A. 2C:12-1a.(1)) upon a law enforcement officer acting in the performance of his duties while in uniform, and his sentence of 18 months probation with a condition that he serve 270 days in jail. The operative propositions of fact are not in dispute, the contentions being that there was error in the jury charge and the sentence was excessive.
Defendant had a considerable amount to drink on December 2, 1983 and had also taken codeine and penicillin earlier in the day. He was arguing with his friend, Elaine Gammon, outside
her sister's home -- and the sister, Sue Patrick, asked Police Officer, Lee Stelle, to intercede. An altercation ensued and Stelle suffered a cut on his nose, a bruise on his hip and pain in his elbow. An issue of fact projected to the jury was whether or not defendant knew he was assaulting a police officer. He said he did not -- until Gammon so advised him, and Gammon supported his position generally and noted a heavy snowstorm was taking place at the time. Stelle quoted defendant as saying "No f///--g cop is going to tell me what to do."
The trial judge refused to charge the jury that an element of the crime was defendant's knowledge he was assaulting a police officer. He paraphrased the relevant portions of N.J.S.A. 2C:12-1a.(1) and 2C:12-1b.(5)(a) which state:
a. Simple assault. A person is guilty of assault if he:
(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
b. Aggravated assault. A person is guilty of aggravated assault if he:
(5) Commits a simple assault as defined in subsection a.(1) and (2) of this section upon
(a) Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting ...