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State v. Sloane

Decided: July 26, 1988.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 217 N.J. Super. 417 (1987).

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, Garibaldi, O'Hern and Stein. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J.


The pivotal issue in this criminal appeal is whether the jury should have been permitted to consider whether the victim's stab wound was a "bodily injury," as defined under N.J.S.A. 2C:11-1a, in contrast to a "serious bodily injury," as defined under N.J.S.A. 2C:11-1b. Before us, the State conceded that under N.J.S.A. 2C:1-8d(3), if the stab wound could have been found to be a bodily injury, then the Code would permit a jury charge on the third-degree aggravated assault offense of purposely or knowingly causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(2), along with the second-degree aggravated assault offense of causing serious bodily injury to another, N.J.S.A. 2C:12-1b(1). In the State's view, the third-degree offense can be considered as a lesser-included offense under N.J.S.A. 2C:1-8d(3) because it differs from the second-degree offense only with respect to the (lesser) degree of injury required. The Code is indifferent to the presence or absence of a deadly weapon as an element of the second-degree offense. N.J.S.A. 2C:12-1b(1).

We find that the resolution of the degree of injury was at least rationally debatable and therefore presented a jury question requiring submission of the third-degree aggravated assault charge to the jury. This conclusion requires a reversal of the judgment below that in effect took the issue away from the jury.


The case arises from two brief confrontations between defendant and his friend Clyde Jones on the evening of June 17,

1982. Defendant was leaving a restaurant in Trenton when he noticed Jones getting out of a car. (The driver of the car had been seeing defendant's former girlfriend.) Defendant claims that the ensuing argument erupted after he refused to provide an intoxicated Jones with marijuana and money; however, Jones asserts that as soon as he stepped out of the car, defendant began arguing with him. As the argument escalated, Jones recalled, defendant put his right hand in his jacket pocket. Jones then broke two beer bottles. He testified that he intended to use them for defense against Sloane, who wanted to fight but was larger and heavier than Jones and also possibly armed. Defendant claimed at trial that Jones had attempted to rob him by threatening him with the jagged bottlenecks. Defendant had left the scene unharmed, allegedly because someone else had distracted Jones; Jones and a witness, Pickett, asserted that Jones had merely thrown the bottlenecks into the bushes and allowed defendant to leave.

Several minutes later, defendant and a companion returned to the scene. On this occasion defendant and Jones clashed physically. Defendant relates that Jones ambushed him with a crowbar, and that Jones was subsequently handed a knife by a bystander. When arrested defendant told the police that he had taken the knife from Jones and stabbed Jones with it; however, at trial defendant asserted that during the struggle Jones had continuously held the knife. However, Jones and Pickett insist that defendant and his companion appeared with their hands in their pockets, that both then circled Jones, and that defendant attacked Jones with a knife as Jones was holding a lug wrench with which to protect himself.

Jones was stabbed first through the arm and then in the back; he ran away across a freeway but fainted and was subsequently picked up by an ambulance and taken to the hospital. Police soon arrived at the scene and questioned defendant, but released him when they could not find a stabbing victim nearby. After Jones was found later that night, he

and Pickett implicated defendant. On June 23, 1982, defendant surrendered to the police.

The grand jury indicted defendant for second-degree aggravated assault (purposely or knowingly causing serious bodily injury to another) under N.J.S.A. 2C:12-1b(1), and for possession of a weapon for an unlawful purpose under N.J.S.A. 2C:39-4d. The trial court declined to charge the jury on any assault offense other than that of causing serious bodily injury to another. On the assault count the jury thus had to choose between acquitting defendant or finding him guilty of second-degree aggravated assault. The jury convicted the defendant of the degree of assault charged but not of possession of a weapon for an unlawful purpose against the person of another. The Appellate Division affirmed the conviction. State v. Sloane, 217 N.J. Super. 417, 421 (1987). We granted certification, 108 N.J. 669 (1987).


Assault is one of the oldest common-law crimes. Now codified, it involves inchoate and choate aspects. The Legislature has carefully delineated the multiple aspects of this generic crime: the 1979 revisions of the Code of Criminal Justice placed all of the criminal assaults under a single section of the Code's Chapter 12. In State v. Williams, 197 N.J. Super. 127 (App.Div.1984), certif. denied, 99 N.J. 233 (1985), Judge Brody explained the significance of the Code's gradations of injury, intent, and instrument: he noted that the Code, "in making 'a clean break with the past,' * * * defines crimes to match criminal conduct more precisely than did pre-Code law. It presents a complete and carefully structured system that fits punishments to the crimes committed." 197 N.J. Super. at 133 (citation omitted). In the case of assault this grading reflects three factors: (1) the degree of injury inflicted or attempted to

be inflicted on the victim; (2) the nature of the force, i.e., whether a firearm or other deadly weapon was used; and (3) the mental state of the actor.

Set forth in an appendix is the language of N.J.S.A. 2C:12-1, the Code's section on assaults. For ease of analysis, in another appendix we shall reshuffle the typology of the Code to illustrate, in descending order of gravity, the kinds of conduct covered by completed assaults and the corresponding penalties to be assessed for violations.

We can see that under the Code's structure a jury will employ an amalgam of factors to weigh the actor's responsibility for an assault. In this case we can rule out the firearm offense and the inchoate offenses involving threats, although in some cases they might be relevant to a charge. Since we have a deadly weapon involved, the degree of culpability based on the mental state of the actor could range over:

Second Degree


serious bodily injury that was knowing

or purposeful


Third Degree


bodily injury that was knowing with a deadly

or purposeful weapon

Fourth Degree


bodily injury that was reckless with a deadly


Disorderly person


offense involving:

bodily injury ...

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