On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication July 18, 1996.
Before Judges Pressler, Keefe and Kole, t/a. The opinion of the court was delivered by Kole, J.A.D. (retired and temporarily assigned on recall).
The opinion of the court was delivered by: Kole
The opinion of the court was delivered by
KOLE, J.A.D. (retired and temporarily assigned on recall).
Defendant, Juan Carlos Villar (Villar), was charged with the three following offenses:
(1) second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (first count);
(2) third degree aggravated assault, N.J.S.A. 2C:12-1b(2) (second count); and
(3) third degree possession of a weapon for an unlawful purpose. N.J.S.A. 2C:39-4d (third count).
The jury found defendant guilty on counts one and three, and guilty of the lesser-included simple assault on count two. N.J.S.A. 2C:12-1a(2) (negligent simple assault with a deadly weapon).
We hold that the trial court improperly instructed the jury with regard to the assault statute causing the conviction on count one to be tainted. Therefore, the conviction on that count must be reversed. We further hold that the conviction on count three cannot stand as a matter of law and must be reversed. However, the conviction on count two for negligent simple assault with a deadly weapon will stand, and this matter will be remanded for sentencing on that offense alone.
This case centers on an event occurring at TGI Friday's in Iselin (Friday's) at about midnight on New Year's Eve, December 31, 1992. At that time, it is clear that defendant, who was very drunk, struck the victim Nancy Gollar (Gollar) in the face with his beer glass causing her lip to split open. What is unclear are the circumstances leading up to and surrounding the event.
Gollar entered Friday's earlier that evening, at around 10:30 p.m. She and her friend went to the bar area and sat next to defendant. They did not know him at that time. Gollar spoke briefly with defendant and then resumed her conversation with her friend.
Sometime around midnight defendant and Gollar again spoke but the content is unknown, perhaps because of what happened next. What is certain is that defendant took offense at what he perceived to be an insult directed at him by Gollar. Thereafter, Gollar turned to leave and defendant hit her in the upper lip with his beer glass, which apparently was heavy. Defendant claims he did not intend to hit her but instead sought to splash her in the face with the remaining contents of his beer glass and she unexpectedly turned into the thrust.
Gollar received seven stitches in her lip and had to undergo follow-up treatment with a dentist, which included a root canal procedure. To this day she carries a small scar on her lip memorializing defendant's actions.
As stated above, the State charged defendant with three counts for his conduct involving a single event.
The court charged the jury, as to count one, that second degree aggravated assault required the State to show serious bodily injury that was knowing or purposeful, or reckless under circumstances reflecting an extreme indifference to the value of human life. N.J.S.A. 2C:12-1b(1). The Judge told the jury that voluntary intoxication is a defense to crimes that require the prosecutor to prove purposeful or knowing states of mind. The court next said the lesser-included offense of second degree assault is simple assault, which it described as purposely, knowingly or recklessly causing bodily injury. N.J.S.A. 2C:12-1a(1).
The jury convicted defendant of the greater offense--second degree assault. The jury specifically found defendant's state of mind to be reckless, manifesting extreme indifference to the value of human life.
As to count two, the court instructed the jury that third degree aggravated assault is comprised of bodily injury knowingly or purposefully caused with a deadly weapon. N.J.S.A. 2C:12-1b(2). The Judge instructed on the lesser-included offense for count two, N.J.S.A. 2C:12-1a(2), which the court described as negligently causing bodily injury to another with a deadly weapon.
The jury found defendant guilty of the lesser-included offense of negligent simple assault with a deadly weapon. N.J.S.A. 2C:12-1a(2). It found defendant not guilty of the second count of third degree aggravated assault with a deadly weapon.
With regard to the third count, the Judge told the jury that defendant would be guilty if he possessed a weapon for an unlawful purpose. Again, the jury received the relevant information on the intoxication defense. The jury found defendant guilty on this count.
At sentencing, the trial court weighed the mitigating and aggravating factors and found defendant had not overcome the presumption of incarceration applicable to second degree crimes. The Judge sentenced defendant to five years on count one, and merged the count two negligent simple assault with a weapon offense into count one for sentencing. It also imposed a three years ...