On appeal from the Superior Court, Law Division, Essex County.
Pressler, Gaulkin and Ashbey. The opinion of the court was delivered by Pressler, P.J.A.D.
Following a trial by jury, defendant Joe N. Jones was convicted of a charge of unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b), a third degree crime, and a charge of aggravated assault in violation of N.J.S.A. 2C:12-1(b)(3), a fourth degree crime which is subject to a mandatory parole ineligibility period under N.J.S.A. 2C:43-6(c), the so-called Graves Act. Accordingly, he was sentenced on the fourth degree crime to an 18-month prison term to be served without parole and, on the third degree crime, to a concurrent one-year probationary term.
The charges against defendant arose out of a confrontation between him and a coemployee, Kelvin Cameron, which took place at an office building in Newark. Defendant was the shift supervisor of the private security guards assigned to that building, and Cameron was one of the guards who was just
finishing what had turned out to be a 24-hour shift. Defendant customarily carried a gun in a holster on his person while working, although he never had obtained a permit to do so. The dispute between the two apparently had its genesis in Cameron's inquiries of defendant regarding the arrival of Cameron's relief. The relief apparently finally arrived, and Cameron prepared to leave the building. It was at this point that the two fought and defendant shot Cameron, but not fatally. Each claimed that the other was the aggressor. Defendant's position from the outset was that he was attempting to defend himself from Cameron's attack and had tried to fire a warning shot into the air; it had never been his intention to actually shoot Cameron.
Defendant was charged in a three-count indictment with the third degree weapons offense of which he was convicted, with the second degree crime of aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1), and with the second degree crime of carrying a handgun with the intent to use it unlawfully in violation of N.J.S.A. 2C:39-4(a). The trial commenced on the morning of December 12, 1983. The jury was charged on the morning of December 14 and began its deliberation shortly before 10:00 a.m. The only issues then submitted to the jury were the three crimes as charged in the indictment. No lesser-included offenses were charged. Once during the morning and once after the lunch break, the jury asked for further instructions on various aspects of the charge and unexceptionable clarifications were given. By 4:00 p.m. the jury had not yet reached a verdict on any of the charges and it was released for the day, resuming deliberations the next morning at 9:00 a.m. An hour and a half later, the jury reported that it had reached a verdict on the third degree weapons charge but was deadlocked on the two second degree charges. The trial judge called the jury into the courtroom, took the guilty verdict on the third degree weapons charge, and instructed it to continue to attempt to reach unanimity on the other two charges. A short time later, in response to another question from the jury, the judge
gave supplemental instructions on the elements of aggravated assault and, particularly, on the meaning of bodily injury which rises to the level of "serious" within the statutory definition. During the course of this supplemental instruction, given after more than seven hours of deliberation, the judge, sua sponte, for the first time charged the jury that it could find defendant guilty of the lesser-included offense of recklessly causing bodily injury to another with a deadly weapon. This is the fourth degree aggravated assault as defined by N.J.S.A. 2C:12-1(b)(3). About half an hour after being given this alternative, the jury reported its unanimity on that aggravated assault charge and returned a guilty verdict on the fourth degree crime. Since the jury remained deadlocked on the second degree weapons offense, the judge then declared a mistrial as to that charge.
The primary thrust of this appeal is defendant's challenge to his conviction of the fourth degree crime of aggravated assault. He argues both that it is not a lesser-included charge of the second degree aggravated assault with which he was charged and that, in any event, the first submission of this alternative to the jury some seven hours after it had commenced deliberations and had already announced its deadlock on the crime as charged deprived him of his right to a fair trial. We agree with both of these contentions and, therefore, reverse the conviction of the fourth degree aggravated assault.
We began our analysis of the lesser-included offense issue by comparing the statutory definitions of three separate aggravated assault crimes. A person is guilty of a second degree aggravated assault under N.J.S.A. 2C:12-1(b)(1) if he
[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 ...