On appeal from the Superior Court, Law Division, Essex County.
Pressler, Bilder and Gruccio. The opinion of the court was delivered by Pressler, P.J.A.D.
[209 NJSuper Page 257] Tried by a jury, defendant Louis Battle was convicted of a charge of second degree robbery in violation of N.J.S.A. 2C:15-1 and a charge of aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1). He was sentenced to consecutive terms of ten years, each subject to a parole ineligibility period of five years.
The charges arose out of a sidewalk purse-snatching. The victim, a small and frail woman in her sixties, testified that she was accosted by defendant, who threw her to the ground, grabbed her handbag from her arm, and fled. The victim sustained bruises and other soft tissue injuries. Defendant was indicted for the two crimes of which he was convicted.
Defendant's first ground of appeal challenges the separate conviction for aggravated assault. We agree that that conviction must be vacated. N.J.S.A. 2C:12-1(b)(1) defines that crime as one in which the actor
[a]ttempts 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. * * *
Serious bodily injury is defined in N.J.S.A. 2C:11-1(b) as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."
Recognizing that the injuries actually sustained by the victim did not meet the definition of serious bodily injury, the trial judge instructed the jury that it could nevertheless convict defendant of aggravated assault if it found that defendant had attempted to cause serious bodily injury. He then explained "attempt" consistently with N.J.S.A. 2C:5-1(a), which provides as follows:
Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
We are satisfied that although the trial judge's understanding of the law was correct, there ...