On appeal from the Superior Court, Law Division, Mercer County.
Dreier, Shebell and Stern. The opinion of the court was delivered by Stern, J.A.D.
Defendant appeals from a conviction of second degree aggravated assault, N.J.S.A. 2C:12-1b(1). As a persistent offender, he was sentenced to an extended term of 20 years with 10 years to be served before parole eligibility. Defendant was acquitted on the second count of the indictment charging him with possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d.
The principal issue in this appeal is whether the jury should have been charged with respect to the lesser offenses of purposely, knowingly, recklessly or negligently causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1a(2), -1b(2) and -1b(3). The trial judge declined to charge the three offenses despite defendant's request for such instructions. He stated that if the facts as alleged by the victim were believed, only the second degree aggravated assault would result. In his view, the proofs revealed that defendant attempted to cause or did cause serious bodily injury to another purposely or knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. N.J.S.A. 2C:12-1b(1). Under that subsection, the presence or absence of a deadly weapon is irrelevant to the offense. Defendant asserts that the requested charge, relating to offenses which require the use of a deadly weapon, are lesser included to N.J.S.A. 2C:12-1b(1), and that there was a rational basis for instructing the jury as to the alternatives. See N.J.S.A. 2C:1-8d, e.
The State's case was developed through the victim, Clyde Jones, and a friend, Judge Pickett. They testified that an argument developed between Jones and defendant having
something to do with a woman during which Jones broke two beer bottles to protect himself. Defendant then left the area after telling Jones ". . . okay, you want to fight. . . . I'll be back in a minute." He returned shortly thereafter with a friend and "lunged" at Jones with a knife. Jones admitted grabbing a lug wrench or tire iron but only for self-defense.
The defendant testified that he was attacked by Jones with a tire iron and that defendant acted in self-defense. His position was outlined by defense counsel in summation:
Now, let's look at Tony Sloane's side of the story. Tony Sloane testified that on June 17th, 1982 he was in the area of Perry Street by the Freeway Steakhouse. He's met by Clyde Jones. They're joking. Tony Sloane testified that Clyde Jones was very intoxicated. Clyde Jones asks Tony Sloane for a joint. Tony Sloane says: I don't have a joint. Clyde Jones asks for money. Clyde Jones demands money. He becomes belligerent, breaks two quart size beer bottles, threatens Tony Sloane with them, has him against the wall. When Clyde Jones's attention is momentarily diverted, Tony Sloane manages to escape, seeks refuge. He encounters Henry.
You heard the State's witnesses and Tony Sloane testify as to Henry. Henry informs Tony Sloane: Look, Clyde Jones is acting weird. Don't worry. Let's go home. Let's get out of here. They have to go back to the same area in order to return to where Tony Sloane lives. He must turn pass the same place to get back home.
What happens? Clyde Jones swings up, is armed with now a lug wrench. Clyde Jones and Tony Sloane are involved in a fight. The lug wrench is discarded, a woman arms Clyde Jones now with a third weapon, a knife. Tony Sloane is not able to get away. He's not able to retreat. He attempts to disarm Clyde Jones. They are involved in a struggle. And in the rolling around Clyde Jones is injured. He gets cut. He moves away; he runs away. Tony Sloane realizing what happened attempts to follow Clyde Jones and offer help. He's not able to find Clyde Jones. Tony Sloane returns to Perry Street.
Tony Sloane's intentions were to protect himself. He did not attempt to cause serious bodily injury to Clyde Jones. He did not intend, I submit to you, [to] cause serious bodily injury to Clyde Jones. Tony Sloane's intentions were ...