On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Pressler, Deighan and Arnold M. Stein. The opinion of the Court was delivered by Arnold M. Stein, J.A.D.
Defendant was found guilty of second degree aggravated assault, N.J.S.A. 2C:12-1b(1). The jury found him not guilty of attempted murder, N.J.S.A. 2C:11-3a(1) or (2). The trial judge sentenced defendant to a presumptive seven-year prison term (N.J.S.A. 2C:44-1f(1)(c)) and imposed a $30 VCCB penalty. We reverse because the trial judge incorrectly instructed the jury on the various elements and degrees of aggravated and simple assault and because the judge improperly instructed the jury to consider the elements of defense of real property, N.J.S.A. 2C:3-6.
On the evening of August 7, 1988, the Netherwood Avenue neighborhood in Plainfield held a block party which extended from one end of that street to the other, with police barricades on each end. The party's sponsors had obtained a police permit which allowed the party to last from 12:00 noon to 10:00 p.m. By 9:45 p.m. the cleanup work had begun and the party was drawing to a close. Some picnic tables still remained and some people were still in the street. Thomas Farrell, the defendant's brother, drove his car through an opening in the barricades and drove the length of the street. As he drove through, Thomas exchanged obscenities with some of the block party participants. When he reached the driveway of his parents' house,
located around the corner from the block party, Thomas realized he had been followed by a group from the party.
When Thomas got out of his car, he was confronted by Gary Surowiec and several other people from the block party. A melee ensued. Thomas Farrell's older brother, Richard, came onto the lawn and tried to break up the fight. Richard's mother saw the fight from inside her house. She alerted her husband and another son, defendant Robert Joseph Farrell, and then called the police.
After his mother screamed to him that Thomas was being beaten, defendant grabbed an aluminum bat from his softball bag and ran outside. He testified that one person was holding Thomas in a full nelson grip, while the victim was holding Thomas's hands. When defendant saw Surowiec kick Thomas in the stomach, defendant swung his bat at Surowiec. According to defendant's trial testimony, he swung the bat intending to hit the victim in the chest, but when the victim ducked, the bat struck him in the head.
Surowiec suffered a fractured skull, fracture of the bone, with indentation into the brain, and hemorrhaging to the other side of the skull into the brain. A plate was placed in his head to cover the area of the depressed fracture.
The trial judge correctly instructed the jury on the elements of second degree aggravated assault as set forth in N.J.S.A. 2C:12-1b(1):
b. Aggravated assault. A person is guilty of [second degree] aggravated assault if he:
(1) Attempts 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; . . . .
The judge then proceeded to instruct the jury on the elements of the lesser included offense of simple ...