Pressler, Shebell and D'Annunzio. D'Annunzio, J., Dissenting.
[263 NJSuper Page 297] Following a jury trial, defendant was convicted of second-degree aggravated assault in violation of N.J.S.A. 2C:12-1b(1) (count eight); second-degree possession of a weapon, a handgun, with a purpose to use it unlawfully in violation of N.J.S.A. 2C:39-4a (count three); and possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5b (count one). The court sentenced defendant to ten years imprisonment with five years of parole ineligibility for the aggravated assault and to a consecutive ten-year term of imprisonment with three years of parole ineligibility for possession of a handgun with an unlawful purpose. The court imposed a five-year term for possession of a handgun without a permit, to be served concurrently with
the aggravated assault count. Defendant's aggregate sentence is 20 years imprisonment with eight years of parole ineligibility.
The State's proofs, if believed by the jury, established the following facts.
On the evening of December 26, 1989 Dierdre Brock and four of her friends, Theresa McFadgen, Tina McFadgen, Conrad Lane and Terry Cooper, went to Absecon, New Jersey, to attend a high school basketball tournament at Holy Spirit High School. Brock sat in the bleachers with Theresa and Tina McFadgen. During the first half of the game Brock noticed people arguing in the stands across the court. After the teams left the court at half-time, Brock observed someone being thrown off the bleachers. A crowd congregated on the basketball court, arguing and pushing each other around. According to Brock, people were swinging fists and hitting each other. The fighting stemmed from a rivalry between gangs in two housing projects in Atlantic City. Brock noticed that her brother was involved in the argument, so she left the bleachers and went down on the court.
After unsuccessfully trying to get her brother to leave the gym, Brock headed out the door of the gym accompanied by the McFadgens. As soon as she exited the side door, Brock saw defendant holding a gun down by his side. Brock had known defendant for over ten years because they both went to school in Atlantic City. The McFadgens and Brock asked defendant what was wrong and why he was carrying what was described as a "big silver gun." However, defendant did not respond. Brock described him as looking "very upset" and "mean;" "I never seen him look like that." Brock then started to run away from defendant because she was scared. After about 15 or 20 steps Brock heard a shot. Brock turned to determine its source and saw defendant pointing a gun in her direction. Brock then turned around and continued running. About three seconds later, Brock heard a second shot and felt pain in her leg. She looked down and noticed smoke coming out of her leg and a big
hole in her pants. Brock continued to run about 20 steps before being assisted by the others. While she was running Brock heard a third shot.
A few minutes later the police arrived. Brock told Sergeant William Sommers of the Absecon Police Department that defendant did the shooting, and an ambulance took her to a hospital where she spent five days recuperating.
Dr. Francis Previti, who attended to Brock at the hospital, testified that Brock suffered what is called a "through and through" gunshot wound, meaning that the bullet had passed through her leg. The bullet entered the lateral thigh of her left leg and exited just above the kneecap. Dr. Previti described the entry wound as half an inch. According to Dr. Previti, a gunshot wound in that part of the leg threatens one of the body's major arteries.
The State introduced the testimony of witnesses in addition to the victim and other circumstantial evidence tending to corroborate its version of the incident and defendant's culpability.
Defendant testified, admitting his presence at the scene but denying that he shot Brock or that he had possessed a firearm at the scene. Defendant also presented witnesses whose testimony corroborated his version.
On appeal defendant contends, among the other issues he raises, that the trial court erred in failing to instruct the jury that it could find him guilty of a third-degree aggravated assault pursuant to N.J.S.A. 2C:12-1b(2) as a lesser included offense of the second-degree aggravated assault with which he was charged under N.J.S.A. 2C:12-1b(1). We agree that defendant was entitled to that instruction even though he did not request it and that the failure to have accorded it to him was reversible error.
The primary distinction between the second and third degree aggravated assault crimes is the nature of the bodily injury actually inflicted or attempted to be inflicted. Thus, the elements
of the b(1) crime are met if the defendant "[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 human life recklessly causes such injury . . . ." The elements of the b(2) crime are met if the defendant "[a]ttempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon . . . ." Based on proofs of injury caused by a deadly weapon, the critical distinction between the b(1) crime and b(2) crime is whether the injury is a serious ...