On appeal from Superior Court of New Jersey, Law Division, Essex County.
Brody and Scalera. The opinion of the court was delivered by Brody, J.A.D.
[223 NJSuper Page 573] Following a trial without a jury, the trial judge convicted defendant of two assaults. The first count of the indictment charges that defendant "did purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life cause or attempt to cause serious bodily injury to Sharon Graham." Sharon Graham is defendant's wife. The offense is a second-degree crime. N.J.S.A. 2C:12-1b(1)
(hereafter b(1) assault).*fn1 The second count charges that defendant "did knowingly under circumstances manifesting extreme indifference to the value of human life point a firearm, a handgun, at or in the direction of Sharon Graham." The offense is a fourth-degree crime. N.J.S.A. 2C:12-1b(4) (hereafter b(4) assault). The judge acquitted defendant of possessing a handgun with a purpose to use it against the person of another, the crime charged in the third count of the indictment.
Defendant's conduct was not in issue. He seriously injured his wife's hand when he fired a loaded handgun he was pointing in her direction. Defendant had loaded the firearm just before the shooting. The victim testified that she was pushing the gun aside when it fired. Defendant was intoxicated at the time.
The trial judge found that defendant had caused the victim serious bodily injury, but, because of his intoxicated state, he did not act purposely or knowingly. He also found that defendant acted recklessly but not under circumstances manifesting extreme indifference to the value of human life because "I don't think he was capable of any manifestation. . . ."
The judge found defendant guilty of fourth-degree recklessly causing bodily injury to another with a deadly weapon, N.J.S.A. 2C:12-1b(3) (hereafter b(3) assault), which the judge held was included within the b(1) assault. The judge also found defendant guilty of the b(4) assault, an assault in which a defendant knowingly, under circumstances manifesting extreme indifference to the value of human life, points a firearm in the victim's direction. It is immediately apparent that the judge erred in finding defendant guilty of b(4) assault after having acquitted defendant of b(1) assault based on the express finding that he had not acted under circumstances manifesting extreme indifference to the value of human life.
Erroneously believing b(3) assault to be a third-degree crime, the judge merged it with the fourth-degree b(4) assault and sentenced defendant to a three-year term of imprisonment without parole eligibility, the minimum sentence for a third-degree Graves Act crime. Because b(3) assault is a fourth-degree Graves Act crime, we modify the sentence to a term of 18 months without parole eligibility, the minimum sentence for a fourth-degree Graves Act crime.
Defendant argues on appeal for the first time that the trial judge should not have convicted him of b(3) assault because he was not indicted for that assault and it is not a lesser offense included within the b(1) assault charged in the first count of the indictment.
The issue has been decided both ways in reported Law Division opinions. Judge Stern held that b(3) assault is "undoubtedly" included in b(1) assault. State v. Berrios, 186 N.J. Super. 198, 203 (Law Div.1982). Judge Villanueva held that it is not. State v. Mincey, 202 N.J. Super. 548, 555-556 (Law Div.1985). Another part of this court agreed with Judge Villanueva and relied on his reasoning. State v. Jones, 214 N.J. Super. 68, 73-74 (App.Div.1986), certif. den. 107 N.J. 102 (1987). Later Judge Stern, now writing for this court, questioned the soundness of Jones on policy grounds but did not
decide the issue. State v. Sloane, 217 N.J. Super. 417, 421-423, 423 n. 2 (App.Div.1987), certif. ...