On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Before Judges Long, Stern and Kleiner.
The opinion of the court was delivered by: Kleiner, J.A.D.
Defendant, Hasson Doss, appeals from his convictions and sentences for terroristic threats and two counts of aggravated assault on a corrections officer at the Camden County Jail. The fourth-degree aggravated assault conviction was merged into the second-degree aggravated assault conviction and defendant was sentenced to an extended twenty-year prison term with a seven-year period of parole ineligibility. Defendant received a concurrent sentence for his terroristic threats conviction. Two co-defendants, cellmates of defendant Doss while all three were incarcerated in the Camden County Jail, were also charged with a series of offenses in the same indictment.
The confrontation resulting in charges against defendant arose when Officer Donald Quinn was serving lunch to prisoners during a lockdown, a jail security measure where all inmates are confined to their cells. Because defendant and his two co-defendant cellmates were particularly disruptive, Quinn sought the assistance of his superior officer, Officer Frank Accardo. After Accardo quieted defendant and his cellmates, the jail cell was opened to allow defendant and his cellmates to receive their lunch. Accardo directed co-defendant Corey Smith to come out of the cell to receive three lunch trays. Smith followed Accardo's instructions, but, after picking up the trays, heaved them at Quinn. A physical confrontation between the three prisoners and Officers Accardo and Quinn immediately followed, during which defendant punched Quinn.
Defendant argues that the trial Judge erred in failing to sua sponte charge third-degree aggravated assault. Defendant asserts that third-degree aggravated assault, in this case aggravated assault upon a law enforcement officer under N.J.S.A. 2C:12-1b(5) resulting in bodily injury, is a lesser-included offense of the second-degree aggravated assault charge, which alleged that defendant attempted to cause serious bodily injury to Officer Quinn. The issue in this point of error, then, is whether the jury should have been permitted to consider whether Officer Quinn suffered bodily injury under N.J.S.A. 2C:12-1b(5)(a), which would have elevated defendant's aggravated assault upon the law enforcement officer-victim to a third-degree offense, as a lesser- included offense of the charge of attempt to cause serious bodily injury under N.J.S.A. 2C:12-1a(1).
Here, the Code permitted the inclusion of the third-degree charge of causing bodily injury under the theory that that offense differs from the second-degree offense of attempt to cause serious bodily injury "only in the respect that a less serious injury or risk of injury [to Officer Quinn] . . . suffice[d] to establish its commission." N.J.S.A. 2C:1-8d(3); see State v. Sloane, 111 N.J. 293, 294 (1988). In Sloane, the trial court refused to instruct the jury at the defendant's request on third-degree aggravated assault with a deadly weapon as a lesser- included offense of second-degree aggravated assault. The trial court had concluded that the victim's stab wound had constituted a "serious bodily injury," as defined in N.J.S.A. 2C:11-1b, and therefore had declined to charge the jury on an offense less than second-degree aggravated assault. Id. at 297. The Supreme Court in Sloane reversed the defendant's second- degree aggravated assault conviction because the evidence suggested that the jury could have found that the injury suffered by the victim was not "serious bodily injury" but the lesser "bodily injury," warranting a charge on third-degree aggravated assault. Id. at 298-99. The Court stated:
[T]he defendant here was charged with the highest degree of assault in the Code. He was on notice, and indeed it was to his advantage, that the jury be permitted to consider the lesser-included offenses of assault that require a lesser degree of injury. [The defendant] knew, because of the second count of the indictment, that a deadly weapon was involved in the charges. He did not object to the charge here; indeed, he requested the charge. Thus, he can be assumed to have been aware that the jury was able to enter a verdict of guilt on any of the appropriate lesser-included offenses. The jury should have been given that opportunity.
[Id. at 303-04 (footnote omitted).]
Clearly, had defendant requested the charge on the third- degree offense, the trial court, upon its required thorough examination of the record, would have found that there was "a rational basis in the evidence for finding that the defendant was not guilty of the higher offense charged but that the defendant was guilty of a lesser-included offense." Id. at 299 (citing State v. Crisantos, 102 N.J. 265, 278 (1986)). A jury could have found that defendant did not attempt to inflict serious injury upon Officer Quinn, but that he did commit a simple assault upon Officer Quinn that resulted in bodily injury.
We therefore disagree with the State's contention that the third- degree offense is not a lesser-included offense of the second-degree offense because "the third degree offense defendant refers to deals specifically with assaults on police officers and requires proof of that particular element to sustain a conviction." "N.J.S.A. 2C:1-8d(1) requires that the lesser offense be established by proof of the same or less than all the `facts,' not `elements,' required to establish the commission of the offense charged." State v. Graham, 223 N.J. Super. 571, 576 (App. Div. 1988) (emphasis added). Further, by its silence as to whether the serious bodily injury or risk thereof required of b(1) assault must be caused to a certain kind of victim, the Legislature intended that the crime is committed regardless of the victim's status. See ibid. In other words, the Code is indifferent to the victim's status as an element of the second- degree offense. N.J.S.A. 2C:12- 1b(1). Thus, where the evidence in the record shows that the victim of a b(1) assault is a law enforcement officer who suffered bodily injury, b(5)(a) assault resulting in bodily injury is a lesser-included offense under N.J.S.A. 2C:1-8d(1).
Nevertheless, we will not reverse defendant's convictions because the trial Judge failed to issue a charge on the third- degree offense sua sponte. Unlike the defendant in Sloane, defendant here did not request the third-degree charge, and we cannot say that it would have been to his advantage to have done so. A specific jury determination that Officer Quinn suffered bodily injury would have elevated defendant's conviction on b(5)(a) assault from a fourth-degree offense to a third-degree offense. Further, the jury in this case was not forced to choose between acquitting defendant or finding him guilty of second- degree aggravated assault, as was the jury in Sloane, because it was also instructed on the fourth-degree aggravated assault. See Sloane, supra, 111 N.J. at 296.
Additionally, defendant may have strategically elected not to have the third-degree offense charged as a lesser-included offense. See id. at 303 ("Of course, defendant can in some situations tacitly elect not to have a lesser-included offense charged."); cf. State v. Sloane, 217 N.J. Super. 417, 423 (App. Div. 1987) (stating that a defendant who requests or consents to a charge of a lesser-included offense "cannot complain that he was convicted of the lesser offense"), rev'd on other grounds, 111 N.J. 293 (1988). A fourth-degree aggravated assault conviction would have exposed defendant to a prison term of up to eighteen months, N.J.S.A. 2C:43-6a(4), while a conviction for third- degree aggravated assault would have exposed him to an extended period of incarceration of between five and ten years, N.J.S.A. 2C:43-7a(4). He may have believed that the jury would acquit him of the second-degree charge, thus leaving it only to determine his culpability on the fourth- degree charge with no opportunity to compromise with a guilty verdict on the lesser third-degree offense, and possible ...