On appeal from Superior Court of New Jersey, Law Division, Salem County.
Brody, Stern and Keefe. The opinion of the court was delivered by Brody., P.J.A.D.
Following a jury trial, defendant was convicted of third-degree aggravated assault by purposely, knowingly or recklessly causing injury to Patrolman William Madara while he was in uniform and acting in the performance of his law enforcement duties. The crime is a violation of N.J.S.A. 2C:12-1b(5)(a). The jury also found defendant guilty of two other crimes arising out of the same incident: fourth-degree purposely resisting arrest by the use of force against Patrolman Madara, a violation of N.J.S.A. 2C:29-2, and fourth-degree purposely resisting arrest by the use of force against Police Sergeant Robert Eller, Patrolman Madara's partner, also a violation of N.J.S.A. 2C:29-2. The trial Judge merged the resisting arrest charges into the aggravated assault and imposed a four-year prison term. Defendant contends that the trial Judge erroneously failed to answer responsively important questions posed by the jury during its deliberations respecting the elements of the crimes. We agree and reverse.
The testimony presented the jury with two versions of the manner in which the officers arrested defendant as a robbery
suspect.*fn1 One version was presented by the two arresting officers; the other by defendant.
The officers testified that they were in uniform in a marked patrol car a little after 10:00 p.m. when they received a radio dispatch to be on the lookout for someone who had fled on foot after robbing a gas station attendant. The suspect was described as a "Negro male clad in green shorts and a dark top heading southbound toward Church Street." They spotted defendant, who fit the description, running along Walnut Street not far from the gas station.
Sergeant Eller stopped the police car behind defendant and let Patrolman Madara out. The sergeant then drove ahead of defendant where he stopped the car and got out. This maneuver placed Sergeant Eller on foot in front of defendant and Patrolman Madara on foot behind him. Sergeant Eller testified that after he advised defendant that he was suspected of the robbery at the gas station, the following occurred:
Q. Did you tell him, this individual, that you were going to take him back to the gas station?
Q. And did you ask him, or tell him to get in the police car?
Q. What happened when you told the individual to get into the police car?
A. I advised him that we were going to take him up to the Amoco Gas Station for identification purposes. I asked him to have a seat in the rear of the patrol car. And I grabbed his arm by his jacket to guide him into the patrol car.
Q. And what happened at that juncture?
A. He pulled away from me and tried to run.
Q. Did this individual strike you in any manner?
A. Yes. I had a hold of his one arm. But with his other arm, when he tried to run he struck me with that arm, yeah.
Q. Where was Patrolman Madara during this time period?
A. At this time Patrolman Madara was coming up behind the subject.
Q. And what happened when Patrolman Madara got up behind the subject?
A. He grabbed the subject from behind and the subject continued to struggle and they fell to the ground.
Q. Did you see whether or not, or could you see whether or not Mr. Parsons had struck Patrolman Madara in any manner?
A. Yes, he did, with his arm. Yes.
Q. What happened to Patrolman Madara after he was struck ...